*1 right fendants have the to secure the at severely deteriorated mental and emotion- state, tendance of fact, witnesses whose al was not testimony raised at trial. In specific theory would or be both material fact was asserted at trial favorable to support of the bare allegation State, defense. Wall Coleman v. could contribute material information. 527-28 (Tex.Crim.App.1998) Appellant presented no sworn evidence or (on reh’g). Accordingly, to exercise this agreed facts demonstrating that Wall’s tes- right, the defendant plausible must make a timony would be either material or favor- showing court, to the trial by sworn evi Coleman, able to the defense. See facts, dence agreed the witness’ S.W.2d at 528. Accordingly, the trial court testimony would be both material and fa did not abuse its in granting discretion vorable to the defense. Id. 528. A State’s motion quash subpoena is- claim that the trial improperly court for Mary sued Wall. We overrule Appel- quashed a subpoena is reviewed for an lant’s fourth issue. State, abuse of discretion. Muennink v. 684 (Tex.App.—San ton An Conclusion ref'd). io pet. modify judgment to delete the Appellant testified hearing at the phrase punishment included in the para- on the motion quash, explaining why he graph begin “to after the sentence cause Mary 15,198-97 needed Wall’s number testimony. He from the 294th Judicial claimed that District Texas, Wall and a of County, Mineóla Court Wood police shall operate.” officer have ceased to interviewed As modi- the victim and her sis fied, judgment we affirm the trial ter at police department but the Dis court. Attorney trict did not turn discovery over regard to that meeting. expected He testimony
Wall’s to establish the fact that such a meeting place took and that she might be privy to information that was
exculpatory or mitigating that was not turned over to SCHINDLER Appellant. argument ELEVATOR CORPORATION, court, counsel asserted the defense is Appellant, entitled to cross-examine regarding Wall reports, her to address any inaccuracies explain the “factual situation at the Anderson, Scott and Diana ANDERSON time.” granted The court the motion Individually and as Next Friends of quash subpoena. Anderson, Appellees. Scott “Scooter” just The following day, before the sen- No. 14-98-01286-CV. tencing hearing began, Appellant asked to Texas, Appeals Court of make a bill of exception to include Wall’s (14th Dist.). Houston
reports just in the record “to make record on clear what felt her Aug. [he] like 2001.
testimony would be.” reports were Dissenting Concurring Opinions on purpose admitted for the making a bill Denial exception. Nothing further was said En Banc Rehearing April about the matter.
Appellant’s theory appeal, that poor housekeeping contributed to the victim’s *6 jury questions
submit post-sale about (6) products strict liability; the escalator producing was not the of Scooter’s cause (7) accident; (8) there is legally and factually insufficient evidence for failure to warn at the time the escalator was install- (9) accident; ed and at the time of the trial court erred in admitting expert testi- (10) mony; the trial court erred admit- ting an episode audio-muted of “Dateline” in which guards escalator side were dem- (11) onstrated; the trial court erred in incurable, permitting jury argu- improper Weinstein, David B. David R. Tippetts, (12) ment; supporting evidence Scoot- David Healey, McCalmont, J. Lisa S. er’s anguish future mental and his father’s Houston, appellant. for past loss of legally consortium is both (13) insufficient; factually the evidence Chandler,
George Lufkin, Sam W. supporting jury’s damage Cruse, award. Jr., Houston, Hatchell, Michael A. million legally factually insuf- $16.97 Ainsworth, Austin, Tyler, Kidd, Price Scott bring ficient. The one Andersons cross- Houston, appellees. for point, contending that the trial court erred DRAUGHN, Panel consists of Justices costs, in remitting past and future medical SEARS, and LEE.* pain future anguish, and mental and Scott
Anderson’s loss of consortium. OPINION and re- part affirm and reverse DRAUGHN, JOE L. Justice. (1) part mand in trial court because: did appeal, portion not err in of the admitting Schindler Elevator Cor- video; n (2) poration challenges judgment in favor muted Dateline the trial court son, Scott and Diana did not in finding Anderson their err ex- Andersons’ “Scooter,” injuries (3) they when pert qualified; received not pre- Schindler did *7 escalator, foot lodged Scooter’s an which serve error to complain about the reliabili- (4) tore off his foot’s skin and ty expert’s testimony; three toes. of this one of the jury After a awarded the Andersons arguments Andersons’ rebuttal per- $16.97 was million, missible, the trial court evidence, remitted the award given the required and (5) million. appeals objection error; Schindler in thir- an preserve any $5.4 the error, (1) points teen contending argument, other though improper, did not proximate evidence of legally cause is both fall category into the narrow of incurable insufficient; (2) factually (6) and sufficient argument; evidence there is evidence (7) supporting jury’s apportionment cause; lia- proximate inadequate there is bility is legally factually both and briefing insuffi- sufficiency challenge address a (3) cient; (8) repose jury’s statute of barred to the apportionment liability; (4) liability submission of strict questions; there is sufficient evidence of Scooter’s improperly the trial court phrased pain a stat- future anguish and mental and Mr. (5) question; (9) ute of repose consortium; it was error to Anderson’s loss of * Sears, Draughn, Senior sitting by assignment. Justices Joe L. Ross A. and Norman Lee shearing This movement. sup- downward damages awarded was amount foot, (10) drag- evidence; “degloved” Scooter’s by the court ported movement and skin. Scooter remitting past and future medical off toes ging erred costs, am- anguish, hospital, and where doctors pain future and mental rushed to the consortium; toes, pin a Mr. Anderson’s loss of his inserted three of putated (11) toe, liability engrafted regarding issues strict into a fourth broken conclusions, re- Because of our we his two moot. to save operations skin in five judg- of the portion verse and remand ball of his foot. remaining toes and the for Scoot- ment that remitted the awards entrap- learned that foot The Andersons costs, future future past er’s medical escalators, not often as on while ments anguish, mental and Mr. pain and Scooter’s, long-known have been as severe consortium, past Anderson’s loss of and we industry.3 and the escalator to Schindler judgment. affirm the remainder of the second most common Entrapment remand for calculation of the falls, escalators, and oc- after accident opinion. in accordance with this 1,000 chil- annually. times For curs some who have small feet and especially, dren BACKGROUND shoes, is an entrapment wear rubber often afternoon, Saturday four-year-old One inherent risk of escalators.4 father accompanied Scooter Anderson battle the ways There are several skys- to his office in a downtown Houston gap The be- building, entrapment. Mr. likelihood of craper. leaving When the esca- steps tween the and the skirts of Anderson and Scooter rode down an esca- lator, narrow, adjustment made an which was maintained lator must be by moving the skirts. building’s under a contract with the own- after installation can be lubricated with silicon standing er.1 Scooter was beside his fa- The sides ther, behind, friction. The skirts can be step against spray one the side to lessen likely to a material that is less hung of the escalator as he over its hand- made of Further, rail, can be foot came in or deflect. escalators give when his tennis-shoe-clad side-step safety plate, which contact with the side skirt of the escala- fitted with instant, helps step to the side of the dragged tor.2 his foot was affixes step and the skirt. widening gap gap into a the escalator fill the between the between skirt, in the painted footsteps can be with step entrapped Steps and the side which edges warning stripes along his foot as the escalator continued its center owner, amputated building part after en Metropolitan Life In- 4 toes and of foot Co., surance, Sears, negligent by trapment); was found not Roebuck & Brown (La.1987) party appeal. (2-year-old and is thus not to this child 514 So.2d entrapped); Elevator finger Mire v. Otis hanging 2. A witness described Scooter as *8 Co., (child’s (La.Ct.App.1978) 357 So.2d standing over the handrail while on his toes. entrapment); amputated after foot Mont toe entrapment Our uncovered an case research McCullough, 676 gomery Elevator Co. v. facing in which the child was the side of big (Ky.1984) (10-year-old’s toe S.W.2d 776 escalator, standing Penney his toes. J.C. on entrapment). amputated after Eubanks, (10th Cir. Co. v. 294 F.2d However, 1961). apparently the child was Co., 4.See, Penney e.g., 341 F.2d Gillam v. J.C. pulled position the escalator into that after 1965) (7th (Westinghouse admit Cir. entrapped his tennis-shoe-clad foot. Id. entrapments had and ted that rubber shoe occur, See, Co., "nothing be but could continued to e.g., Martin Maintenance accidents). (2nd 1978) (10-year-old prevent such Cir. child’s done” to F.2d 355 to encourage proper standing positions. found negligent, grossly negli- Schindler Raised cleats along edges exist of some gent, strictly and liable for design and steps escalator it make less comfortable marketing apportioned defects. It 90% to stand near edges. Larger, more the fault for the accident to Schindler and explicit warning signs have also been dis- 10% to Mr. It total Anderson. awarded a cussed in escalator industry safety meet- damages million in actual $16.97 ings. $100,000 punitive damages. The trial court, formula, using then a mathematical escalator,
For however, this Schindler damages remitted million the actual devices, $5.4 did not safety install the paint, or (net apportionment of provide of reduction for explicit Instead, more warnings. fault, credits, prejudgment Schindler relied settlement gap on maintenance and interest) dam- punitive lubrication. The escalator was a reduced Westing- model, house designed to run with gap ages to zero. of an inch.5 Schindler generally 1/16 1/8 al- issues address appellate Schindler’s operated it with of an gap inch 3/16 Thus, portions most all of the trial. we either side steps, of the the widest amount first for which our de- address the issues permitted industry under Af- standards. termination affects later admission issues: accident, however, ter Scooter’s expert one expert of the testi- videotape Dateline gaps measured of up to inch on the 1/4 mony. proxi- We then address evidence escalator. Although Schindler recom- cause, argument, mate and evidence jury
mended month, lubrication at least once a (including whether certain damages and its Houston preferred technicians remitted). have been should month, twice a work records showed that the escalator had not been lubricated from VIDEO DATELINE forty-two days
between to six months. Further, issue, the year before In tenth which we ad entrap- Scooter’s its ment, first, building dress that the trial appeals owner dedicated excess funds to upgrading videotape the escalators. In- court erred in a muted admitting making safer, stead of the escalators of the television show “Dateline.” Schin money Schindler used the to make the dler contends that the video was irrele quieter. vant, escalators unfairly prejudicial, improperly bol expert credibility, jury stered and aroused Schindler, Evidence also showed that speculation “enormity” about the of escala 1980s, acknowledged that its escalators tor entrapments. objections, these it Of could be considered “unreasonably danger- did bolstering not raise at the trial level. ous.” president of its oper- American relevancy and unfair only address ations buying side-step recommended safe- prejudice, jury’s per as we consider the ty plates However, for all its escalators. ception problems of the extent of escalator Schindler reneged buy on a contract part objection. to be of the latter side-step safety .plates by created Carl White, a long figure time in the escalator record, From apparent that the industry. elevator play court allowed the Andersons to more,
Given this
only
evidence and
a portion
story.
of the Dateline
case,
two,
in this
a margin of ten to
portion,
expert,
Andersons’
Carl
*9
Co.,
5.
entrapment
gap);
This evidence is echoed in other
Penney
Nettrour v. J.C.
146 Colo.
See,
Eubanks,
150,
e.g,
(1961)
cases.
(gap
which makes the “existence Qualifications A. is to determination consequence that per Rule of Evidence Texas probable probable the action more or less testify to on scienti expert an witness mits without the evidence.” than it would be subjects fic, technical, specialized or other trial, During Schindler Tex.R.Evid. in jury the testimony would assist if the Mr. repeatedly contested whether White’s determining or understanding the evidence in use side-step safety plates worked their of the testi proponent a fact issue. The It public on escalators. insinuated the the burden to show mony has used, the plates when Mr. White’s cause knowledge on the special expert possesses Thus, the steps escalator to crash and lock. give to proposes matter on which he very the videotape muted was relevant show Heise, 924 S.W.2d opinion. Broders plates at work. (Tex.1996). 148, con Schindler 152-53 objection that the video As to have been White should not tends that Mr. unfairly prejudicial, we liken it to tape was testify design about charac permitted to “[rjelevant photographs: the admission of escalators, proper escalator teristics photographic evidence is admissible unless reduction, maintenance, risk or causation. sym merely calculated arouse acceptance of a review the trial court’s jury or pathy, prejudice, passion [of] of discre qualifications abuse witness’s do not photographs where serve tion. aid the in disputed
illustrate issues or White’s The evidence shows Carl understanding the Ford Motor Co. case.” in safety began with escalator experience Miles, Westing- began he work for when Here, videotape was not calculated house, manufacturer of the escalator sympathy, prejudice, passion. arouse completed in case. He one- model Further, al testimony Carl White’s had there about construc- year study program ready appeared established that he had mechanics, various maintenance tion and Dateline. The trial court not err in did installation, surveying. and field aspects of video, admitting the and we overrule issue architects, engi- upon he called Until ten. neers, developers, designers about sale, of escalators layout, and installation QUALIFICATIONS EXPERT time, During this he also and elevators. & RELIABILITY safety, and field of escalator worked issue, con In its ninth investigation accident performed he that the trial court erred admit tends Westinghouse. Florida for south testimony because ting Carl White (1) presi- 1964 to White was testify about From qualified he was not own elevator maintenance, and co-owner design, or accident dent escalator (2) installed some testimony contracting company, which causation and because his he 1,200 escalators and elevators. not The Andersons offered rehable. vice-president for regional failure to lu became opinions Mr. about White’s con- skirts, largest failure to oldest bricate the escalator elevator/escalator *10 1997) (mechanical firm in suiting the world. In engineer qualified he to began consulting on his.own.- testify that lack of skirt stiffeners and defective, silicon lubricant made escalator He has held in memberships numerous although inexpertise he admitted to on de industries, safety escalator and includ- manufacture, sign, servicing, and mainte ing: chairman Florida Industrial escalators); nance of see also Gammill v. safety Commission’s elevator and escalator Chevrolet, Inc., Jack Williams conference; Escalator Moving and Side- (Tex.1998) (giving example that an walk Committee of the American Society experienced diagnosis car mechanic’s (on Engineers of Mechanical which he problems performance may with a car’s helped promulgate escalator warning well engi be admissible without resort to signs); the National Association of Eleva- fact, neering principles). design Safety tor Inspectors; Authorities & engineer question of the escalator testi Society the American Safety Engineers. gap adjustment fied that is a “part field He is licensed as a master elevator and operation,” which is one of the areas of Mr. escalator installation and maintenance Further, expertise. White’s whether man. presented He has seventeen performs White escalator maintenance speeches about escalators and escalator himself, he has a license to do master so. safety industry meetings, including a Lastly, provides authority Houston conference of the National Asso- expert that an must trained in specially be ciation of Safety. Elevator He has written accident or “causation reconstruction anal seven industry papers about escalator (in ysis” testify to causation. Mr. about safety. He patents holds two the Unit- States, experience extensive the escala Canada, ed White’s Italy) for his side- industry, licensing, tor and his his knowl step safety plates. He appeared has edge safety qualify about issues four national television escalator shows about escala- industry-acknowledged him to safety tor issues. discuss the problem side-step entrapment; escala Schindler complains that White is not installation, mechanics, tor and mainte (1) qualified testify because White is not nance; and risk reduction. From this ex an engineer, has designed never an escala- pertise, testify he qualified was also tor, design and did not nor test his own side-step entrapment Scooter’s own (2) device; safety has never personally inadequate caused excessive gap escalator, maintained an installed or main- lubrication. The trial court did not err in device, tained safety his and his company finding qualified Mr. White in these areas. “avoided escalator pos- maintenance” when sible; (3) is not trained in accident remaining There area of escalator is one reconstruction analysis. or causation contends design about which Schindler
However, unqualified testify: Mr. White was witness need not have college rigidity of the metal side skirts. In his degree qualify expert. as an Serv., Prop. testimony, Glasscock v. Income direct Mr. testified that White (Tex.App one of four [1st deflection of the side skirt is . —Houston by agreement). Dist.] writ dism. entrapment factors foot on escalators. Nor is it a prerequisite expert testimony that an While most of on direct fo- factors, witness be an designer testify gap escalator cused on excessive two other (the White) safety about escalator and foot entrap important most- factor to lubrication, ment. Murphy Montgomery briefly See Eleva silicon Mr. testi- White Co., fied, tor (Ky.Ct.App. panel rigidity “I believe the skirt *11 improper judg- an rendition of in cross- caused the design.” defective the On was Tex.R.App.P. 44.1(a). To determine examination, questions allowed Schindler’s ment. harmful, we review expound upon the brief testi- error was Mr. White to whether en- reviewing thickness of After mony: given the size and entire record. Id. shoe, from record, testimony if the was gap including even tire Scooter’s 3/16 inch, that agree an Mr. White believes Scooter’s we do not experts, Schindler’s unless caught testimony would never have been on foot Mr. admission of White’s outward, creating error, skirt bent even if caused strength, probably skirt into which the foot was larger gap judgment. improper of an the rendition that a stur- dragged. Mr. White believes testimony main of Mr. White’s The focus deflect, thus mini- dier side skirt would not inade- gap excessive on causation was side-step entrap- of a mizing possibility reasons, we For these quate lubrication. ment. regard- of error point overrule Schindler’s qualifications expert. Mr. as an ing White’s reject argument
We
Schindler’s
testify
qualifications
about Mr. White’s
Reliability
B.
strength
about skirt
for several reasons.
Next,
Mr.
argues that
Schindler
First,
testimony
Mr. White’s
about
in four
testimony
White’s
was unreliable
knowledge
side skirt was based on his
gap,
of the
“glaring” areas: excessiveness
mechanics, maintenance,
about escalator
lubrication,
strength,
poor
lack of
skirt
experience
and previous
and installation
testimony to be
expert
maintenance. For
side-step entrapments.
thought
His
702, it
admissible under Rule of Evidence
process regarding
gap,
width
Scoot
Gammill,
and reliable.
must be relevant
shoe, and
one
bending
er’s
the skirt was
argue
The
which
complains
appeal,
Schindler
on
we
objections preserved
If
error
occasional
have found numerous instances of such
testimony, surely
for admission of
those
testimony where
object
Schindler failed to
objections
lodged against
should be
to lack of foundation.
testimony complained
appeal.
of on
Fourth, Schindler contends that because
complaint on
must be the same as
appeal
objected
it
qualifications
to
and sometimes
presented
Rogers
to the trial court.
reliability,
to
reliability
the issue of
was
(Tex.1992).
Stell,
100,
v.
properly before the trial court. We dis
Robinson,
conclusion,
In
agree.
objections
qualifications
In
to
the Texas Supreme
Court
encompass
expert’s
stated that in addition
do not
whether
qualifica
to
tions, an expert’s testimony
testimony
must be rele
a reliable founda-
based on
vant to the issues and
upon
based
a reli
only
tion.
at times does not
Objecting
able foundation. E.I. duPont de Nemours
preserve
objection does.
running
error as a
Robinson,
549,
& Co. v.
923 S.W.2d
556 And,
objections
if
sporadic
such
trial
could
objections
We believe that
to preserve error,
they should at least be
qualifications
objec
are thus distinct from
testimony complained
directed to
of on
reliability.
tions about
But see Purina
appeal.
reliability challenge
To allow a
Mills,
Odell,
Inc.
948 S.W.2d
932-33
plaintiffs’]
here
deny
experts
[the
“would
denied)
(Tex.App.
pet.
— Texarkana
in the first
opportunity
‘pass
to
muster’
(holding that court
perform gatek
must
instance and
trial court’s discre-
usurp the
”
eeper function without regard
par
to the
Sanchez,
tion as
‘gatekeeper.’
ties’ arguments). Schindler cites General S.W.2d at 591
Overseas
(quoting Maritime
Motors
Corp.
proposi
Sanchez for the
Ellis,
Corp. v.
410-11
971 S.W.2d
objections
tion that when at least some
are
(Tex.1998)). Accordingly,
disagree
we
made
reliability,
preserved.
the issue is
preserved
Schindler that
error
(Tex.1999)
(citing
590-91
appeal
reliability
opin-
of Mr. White’s
Havner,
Merrell Dow Pharm. v.
953 ions.
(Tex.1997)).
711-14
We have
trial
Having found that the
court did not
examined both
portion
Sanchez and the
finding
Mr.
abuse its discretion
White
Havner,
Havner that it
In
discusses.
qualified
preserved
and that no error was
litigation
“central
issue” of the
was the
appeal reliability,
we overrule Schin-
reliability
scientific
expert testimony
dler’s issue nine.
offered to establish causation between a
drug and birth defects.
In this there is no such central issue. Havner, issue, In fully the defendants In briefed its eleventh the issues and the trial court held a appeals argu that the Andersons’ rebuttal lengthy pre-trial hearing. Id. at 709. improper ment to the and incura- they can’t industry [that] the escalator presenting argument, ble. Schin (1) anymore. an error Its prove carry dler has the “burden to this charade (2) (3) provoked, they going that was not invited or uncovered and been preserved by proper that was reasonably safe. escalators make those objection, such as an a motion predicate, instruct, mistrial, or a motion for communi- You are the conscience of this (4) by was not curable an instruc [that] you will ty.... very unlikely It is tion, prompt withdrawal of the state mankind to serve opportunity have the ment, reprimand judge.” or a *13 case, in to have you as much as will Reese, Fire Ins.
Standard Co. 584 your children. If good do so much for (Tex.1979). 835, ar S.W.2d 839 Schindler large enough, they’ll is listen verdict incurable, that as gues argument they’ll changes. it and make must, object because it not in the did incurable, argument trial court. Where is objection necessary preserve is er no pencil that a in the hands It’s been said Pitner, ror, Equipment Clark Co. v. 923 foreperson a of an American 117, 125 (Tex.App [14th S.W.2d . —Houston that powerful more than all the armies 1996, denied), writ although improp Dist.] and all the navies that ever marched on jury argument er not otherwise ruled that you and one of will hold ever sailed by the trial court must in a be raised beg you justly, I to write be power. motion for new trial. Tex.R.Civ.P. home, you go and when all of proud, 324(b)(5). jury argument Incurable occurs you, your family you, ... and asks what
when comments are inflammatory so court, you you do in can look them did their harmful nature by cannot be cured eye say, here’s what I did Melendez v. disregard. instruction to community I and this court. made this (Tex. Corp., Exxon 998 S.W.2d I place world a safer to live and because App. pet.). [14th no Dist.] — Houston helped people. make it safer for the little only “There are rare instances of incura harm improper argument.” First, ble from arguments to send regarding Reese, industry, message a to the escalator such within the arguments have been held to be trial, In its motion for new closing argument a logical parameters of improper argu- raised as the Andersons’ See, e.g., Rodri when based on the facts. ment in attorney gave which their a “his- Co., guez Hyundai Motor 944 S.W.2d perspective liability products torical 1997), (Tex.App. Corpus Christi part perspective, cases.” As of this — grounds, rev’d on other 995 S.W.2d things Andersons discussed “the American (Tex.1999) (in Hyundai appealed which safer, juries have done” to make America that, message a to Texas jury to send Pintos, including stopping Ford asbestos in justice contrary general presumptions, shields, baby Daikon flammable buildings, see also county); in its clothes, helmets, is not for sale Agent suspension football Martinez, Tire Co. v. Uniroyal Goodrich chemicals, Orange exploding Drano (Tex.1998) (plea 342-43 cans. Schindler also contends that 977 S.W.2d following message” arguments damages “send a award to “send a mes high improper and incurable: actual prejudicial not so to the sage” was a reversal require claim as to your
I am with verdict when convinced the issue of existing because of evidence you you reach the truth that will send a message indubitably liability). loud and clear to
Here, writ). many the evidence showed earlier It not Dist.] was also injury against Thus, lawsuits compa- provoked. escalator invited or we must deter nies, Schindler, including many industry- mine whether the error could have been children, entrapments wide and refusal cured proper instruction whether escalator companies, including improper argu “the probability Schindler, adopt safety certain mea- ment then the greater caused harm is In particular, sures. the evidence includes grounded probability that the verdict was ten-year-old letter from pres- Schindler’s proper proceedings on the and evidence.” ident that adopting recommends the White Reese, at 840. We must evalu side-step safety plates as a standard fea- jury argument fight improper ate the ture; moving remarks “is a down case, beginning with voir dire the whole plates escalator without side ‘unreasonably argument. Luna ending closing dangerous?’ Probably yes!”; and that Inc., Sales, Dodge v. North Star opines major that “a magnitude claim is 115, 120 coming from an escalator accident involv- First, argu we are unconvinced that *14 ing entrapment the steps between and preempted ment could not have and been skirt.” The evidence also showed that by objection cured an and instruction to negotiations Schindler later backed out of v. T.M.E. Invest disregard. See Cecil with Carl White to fit its escalator fines (Tex. ments, Inc., 38, 48-49 893 S.W.2d side-step safety with plates. Finally, the writ) 1994, (argu no App. Corpus Christi — jury was aware that several other escala- abuse, plain which ment about lawsuit tor manufacturers had provided Schindler incurable). object, tiff was not failed to case, witnesses this all of whom instance, single For in a Equipment, Clark supported Schindler’s defense that it bore by interrupted mention Pinto cases was no fault for Scooter’s accident. by the objection the defendant’s and cured error,
Additionally, even if this court has 923 disregard. trial court’s instruction previously objection found that an is neces ar S.W.2d at 125. While the Andersons’ sary to appeal message” such “send a ar detailed, gument a lengthier was far and guments. Gannett Outdoor Co. Texas timely objection would have by Schindler Kubeczka, (Tex. 79, 710 S.W.2d 86 argument the stop allowed court to this writ). 1986, App. [14th no Dist.] it. troubled with allow cure We are — Houston conclude that argu the Andersons’ ing “lay log” the litigant behind Further, ment was based on the evidence. argument to obviously allow an erroneous error, if message” argu such a “send a be hopes that it will develop fully in the objection ment requires preserve come incurable.
error. Second, probability the we do not think than specific greater
The Andersons’
refer
harm is
argument caused
litigation
Pintos,
ence to
verdict was
probability
such as Ford
asbestos,
error,
and Daikon
grounded
proper proceedings
shields was
on the
substantial,
City
however. See
Antonio v.
was
uncon-
San
Rod
evidence. There
699,
riguez,
(Tex.App.
side-step entrap-
934 S.W.2d
705
troverted evidence that
1995)
per
—SanAntonio
rev’d
curiam on ments were' known to Schindler and
(Tex.1996);
grounds,
other
industry
407 light party most favorable to the fingers frequently and who wear rub- grab judgment ber shoes that the side skirt on con- favor the has been ren whose safety dered, was mea- indulge every tact. There evidence reasonable and to existed, painted stripes along sures such as party’s from the evidence in that inference step edges, painted footprints Corp. v. Presidio favor. Formosa Plastics steps, side-step safety center of the Inc., Contractors, 960 Eng’rs & S.W.2d plates, which Schindler did not recommend (Tex.1998) Havner, 953 (op. reh’g); for this escalator. There was also evi- Estate, 711; King’s S.W.2d at In re gap dence that the was excessive and lu- (1951). If Tex. S.W.2d inadequate. brication there is more than a scintilla of such evi support finding, dence to the claim is Further, despite the Andersons’ rebut- sufficient as a matter of law. Formosa tal, and Schindler’s own somewhat fanciful 48; Corp., Plastics Leitch v. closing argument, carefully Hornsby, 935 reached its verdict with favorable and un- findings favorable to all sides: it found legal sufficiency may A issue fault;
Scott Anderson at Met-Life fault when free; only be sustained the record dis design defect when the escalator (1) installed; following: complete closes one of the zero damages for Diana (2) Anderson; fact; of a vital zero absence of evidence for Scott consortium, Anderson’s future loss of fu- court is barred rules of law or evidence anguish, ture mental exemplary dam- giving weight only from to the evidence *15 (3) ages; damages fact; and zero for Scooter’s loss prove offered to a vital the evi earning of capacity. The award- amounts a prove dence offered to vital fact is no past ed for and expenses future medical evidence; more than a mere of or scintilla are testimony. consistent with the The (4) conclusively the evidence establishes amounts awarded to Scooter in Havner, opposite of a vital fact. 953 substantial, are but whether these Calvert, (citing S.W.2d at 711 Robert W. amounts are excessive is addressed oth- “No and Evi Evidence” “Insufficient points er of error. Error, dence” Points 38 Tex.L.Rev. of (1960)). 362-63 There is some evidence Given the evidence that and the careful when the a reasonable basis proof supplies verdict reached demonstrates may on reach dif it, which reasonable minds its attention to we hold that ferent about the existence of conclusions argument Andersons’ rebuttal other about Sander, the vital fact. Orozco v. product liability litigation does not fall into (Tex.1992). category argument the narrow of incurable necessitating reversal for a new trial. We An assertion that the evidence is
overrule issue eleven. “factually that insufficient” means the evi PROXIMATE CAUSE supporting finding dence a is so weak or one, In issue that contrary Schindler contends over the evidence to the is so legally factually there is insufficient whelming finding that should be set proximate evidence of cause. unjust a clearly wrong aside as new trial should be ordered. Cain A. Standard of Review Bain, 175, 176 709 S.W.2d all of the evidence legal sufficiency required a to consider determining issue, making are to consider all of the evidence in the case in this determination. we
Maritime Overseas Corp., a-half months before Scooter’s accident. expert Andersons’ testified that the
escalator was inadequately lubricated and B. Law and Evidence of Causation stated, foot “Scooter’s wouldn’t got- have if caught frequent ten it had had
To
a
prevail
negligence
on
application
recent
of silicon to the
of
claim,
side
plaintiff
must
prove
the de
the step.”
proximately
injury.
fendant
caused the
Leitch,
Assocs., Ltd., (Tex. injury the chance of is reduced. Soon 1995)). Schindler claims that there is in accident, experts after two mea- Scooter’s sufficient evidence it was a substantial gap. expert sured the found Schindler’s in causing factor Scooter’s accident. average gap of an inch on one 1/16 side and of an inch on the other side of identify categories
The Andersons three 1/8 An steps. expert the escalator Anderson of Schindler’s negligence that caused (1) gaps found an inch on one side and injury: adequately Scooter’s failure to 3/16 side, silicon; an inch on the other large as as lubricate the escalator sides with 1/4 (2) Testimony clearly amount. enough failure to maintain a excessive gap small gap both showed the size of edges steps; on the of the escalator (3) important steps can sides was because up- failure to install recommended *16 laterally, ap- if especially pressure shift is grades. legally We hold that there is and In plied. opinion the of the Anderson’s factually sufficient evidence that Schin- in expert, question the escalator could negligence dler’s was a factor substantial adjusted have to a of even gap in been less causing Scooter’s accident. Further, than of an inch. he testified 1/8 First, Schindler’s own escalator mainte- got caught that Scooter’s foot because the nance supervisor purpose testified that the gap was excessive. lubricating the was to prevent skirts Third, entrapment. According regarding to the Andersons’ failure to recommend in expert, adequately upgrades, failure to lubricate the the evidence showed that “dramatically building owner had excess funds skirts increases” the chances the entrapment. for on the escalators. policy upgrades Schindler’s was to to dedicate month, nothing safety, though lubricate the skirts once a Schindler recommended assigned spent money its two mechanics to maintain the but instead the to make the time, question pru- quieter. believed it more At this there escalator escalators available: every many safety upgrades dent to lubricate two weeks. Re- were and gardless, support painting stripes along step edges maintenance records the the centers; raised footprints step using conclusion that the escalator had not been the make it uncom- forty-two along edges from to six-and- cleats days lubricated (Tex.1994) there; place (appellate fortable to court changing feet in- graphics warning signs; colors and points to waive of error due has discretion skirts; stalling self-lubricating and install- inadequate briefing). We conclude ing safety side-plates or similar devices has its issue. Schindler waived second gap narrow the between the skirt. The evidence shows that precautions these DAMAGES practically
were
and would reduce
.feasible
“virtually
entrap-
eliminate” the risk of
twelve,
In
contends
issue
Schindler
ment.
legally
factually
there is
and
insufficient
fu-
evidence of the existence
Scooter’s
The crux of
argu
Schindler’s
anguish
ture mental
and Mr. Anderson’s
ment is that the accident could have oc
thirteen,
loss of consortium.
issue
lubrication,
regardless
curred
of recent
argues
legally
that there
and
Schindler
minimal gap,
upgrades
and
such as side
factually
support
insufficient evidence to
However,
step safety plates.
absolute cer
Mills,
total
amount of
tainty
required.
is not
dollar
award-
Purina
plaintiff
5.W.2d
936. “Nor must
jury.
cross-point,
ed
On
every
exclude
other possibility.” Id. Fur- Andersons contend that
the trial court
ther,
may
there
be more
proxi-
than one
erred in remitting
jury’s
award for
Perez,
mate
Siegler,
cause. Lear
Inc. v.
past
expenses,
and future medical
Scoot-
(Tex.1991).
819 S.W.2d
The evi-
pain
anguish,
er’s future
mental
dence, portions of which we have dis- Mr.
past
Anderson’s
loss of consortium.
cussed, is
legally
factually
both
suffi-
points
These
of each
necessitate
review
cient to show that
negligence
Schindler’s
element of damages.
injuries.
was the cause-in-fact of Scooter’s
We thus overrule issue one.
A. Standard of Review
APPORTIONMENT OF LIABILITY
already
We have
set forth
issue,
In its second
Schindler con
standards of review for
legal
factual
tends that because Scott Anderson was the
sufficiency. Additionally, we review remit-
person
only
who
prevented
could have
sufficiency
titur under a factual
standard.
accident entirely,
legally
the evidence is
Co.,
Utility
Larson v. Cactus
factually
support
insufficient to
words,
In other
we
jury’s apportionment of 90% of the fault to
may uphold
only
a trial court’s remittitur
Schindler.6
argues
issue
when
factually
the evidence is
insufficient
*17
one sentence at the end
proximate
of its
support
jury’s
Wiggles
to
verdict. J.
briefing
cause
provide any
fails to
case
Peeples,
worth Co. v.
regarding evidentiary
law
sufficiency
denied).
(Tex.App
pet.
Worth
. —Fort
apportionment
the context of
of fault.
review,
conducting
In
we must consid
error,
Bare assertions of
without citations
weigh
er and
all of the evidence
should
Tex.R.App.P.
authority,
waive error.
if
jury’s
only
set aside the
verdict
it is so
38.1(h);
Ca.,
v. Union Oil Co.
Thedford
contrary
overwhelming weight
to the
(Tex.App.
— Dallas
denied);
clearly wrong
the evidence as to be
pet.
see also Fredonia State
Co.,
Cain,
Bank v.
unjust.
General Am.
Ins.
at 176.
Life
Westinghouse,
acquired,
proximate
whom Schindler
conduct was sole
cause of the acci-
Gillam,
argued a similar issue in 1965:
dent.”
Most of the evidence about Scooter’s Additionally, surgery repair. further provided by future medical care was Dr. back from the donor site Scooter’s Baxter, orthopedic surgeon Donald an who grafts taken for has devel- where skin was trial, specializes in the and feet. At hands raised, thick, keloid scar. oped prominent Baxter, Dr. described the traumatic de- surgery needed to plastic The extent of gloving of the skin and toes from Scooter’s determined until the scar cannot be repair problems foot associated with such Finally, according fully grown. Scooter is injury. an In opinion, his the chances for Buckle, may “may or not” to Dr. Scooter instance, surgeries future is 100%. For osteomyelitis, overgrowth, experience bony the bones Scooter’s foot will continue to graft and skin breakdown. grow, perhaps through the skin where his of the costs Dr. Baxter’s assessment will need amputated. toes were Scooter is a “best future medical care Scooter’s surgery bony overgrowth. to remove this (cid:127) $400,000 easily case scenario” of Additionally, likely” to Scooter is “most $1,000,000. claims Although Schindler infections, experience future either minor excessive, points these amounts are open an or severe. Because was trial, not cross- At it did wound, counterproof. he is also at an increased risk for spe- costs of examine the about witnesses osteomyelitis. always will have to Scooter any wit- cific It did not offer against procedures. friction ulcerations of the guard about the costs grafts skin on the ball of his foot. Dr. nesses on its own behalf at trial opinion, “likely” position Baxter’s it is that Scooter care. Its future medical If experience graft functioning will skin breakdown. was instead Scooter problems develop, surger- these additional normally no need of future medi- and had pus and necessary ies will be to remove all the evi- In review of cal intervention. grafts. diseased bone and to correct skin dence, factually there was we find future med- sufficient evidence Scooter’s Further, Dr. testified that Scoot- Baxter Further, the total and costs. ical care gait changed will such that extra er’s be $700,000, is jury, amount awarded pelvis on his placed stresses will be which Dr. Baxter range well within back; injury such as people some *18 the trial amount to which testified. The eventually require surgery. back Scooter’s award, $330,043.50, is court remitted or in- require special will shoes Scooter established below the minimum costs prob- back try prevent serts to these fac- the evidence is the evidence. Because lems, three to four and each insert costs in sufficient, erred the trial court tually Lastly, dollars. Dr. Baxter testi- hundred Ac- damages. remitting this element two re- amputation fied Scooter’s 4H Further, eordingly, bodily injury we overrule Schindler’s issue serious is “[w]here inflicted, thirteen and sustain ... degree the Andersons’ cross- we know that some point as to future physical suffering medical. and mental is the neces- Likes, sary City Tyler result.” pain anguish
2. Future and mental (Tex.1997). S.W.2d issue, In its twelfth Although evidence shows Scoot- only attacks the existence of fu Scooter’s who, trial, a happy er is child at the time of anguish; ture mental it not does attack the many sports, was active in other evidence existence physical of future In pain. cases problem showed that his future will not be in which the in awarded psychologist free. His child testified anguish broad form for mental pain, continually Scooter is concerned about the appellant waives error appeal if he foot, it, looking loss of his avoids only attacks anguish, mental and not times, a at all possible wears sock includ- pain. also the evidence of See Wal-Mart ing when swimming. He has asked his Stores, Garcia, Inc. v. parents numerous times if his toes will (Tex.App. Antonio no pet.); — San grow back. the psychologist’s opinion, Bros., Lewis, Brookshire Inc. v. 997 Scooter will to psychologically continue ad- 921-22 (Tex.App. — Beaumont just to the loss of injury his toes and to his denied). 1999, pet. Because Schindler’s in An occupational foot the future. thera- issue twelve fails to legal address the and pist, amputees, who works with testified sufficiency factual of the evidence of Scoot for the that although amputees defense er’s future pain, which in was submitted normally looking uncomfortable at and broad form with anguish, future mental it limbs, touching their this discomfort usual- has waived appeal. error for ly disappears over time. Nonetheless, we address the factual suf- Further, experiences exaggerat- Scooter ficiency of Scooter’s future mental anguish safety ed fears for the family of his be- pain because of issue thirteen and the cause of his accident. For example, he cross-point, Andersons’ in they which con- once greatly panicked when his mother tend the trial court erroneously remitted go up baby tried to an escalator with his jury’s $1,000,000 award from According sister. to the psychologist, $308,393.57. varying these fears will continue to de-
The term anguish” “mental im grees the future. During pe- transition plies relatively high degree life, of mental riods of his such puberty, develop- as pain and distress. “It is more than mere problems mental because of his will foot disappointment, anger, resentment continually or em image arise. Scooter’s of him- barrassment, although may it include all of self and his self-confidence will be affected foot, these. It it, includes mental sensation of by problems his and oth- pain resulting from painful such emotions ers’ reactions to it. His self-esteem grief, disappointment, as severe indigna large part physical ability, based on his tion, shame, pride, despair wounded and when he cannot compete athletically and/or public Parkway future, humiliation.” peers Co. on the level of his in the it Woodruff, However, very will be difficult for him.7 toes, 7. Dr. Baxter testified that push because Scooter be more will difficult for him to lost considerable According muscle nerves from the the ball of off his foot. to the foot, degloved surgeon, by high-school age, only and because of the of the sport loss *19 occupational therapist’s to the court remitted these according amounts to records, $304,878.28 $1,524,390.80, review of Scooter’s she did not and and the him. physical foresee future limitations for Andersons appeal do not the remittitur. Thus, we only address the sufficiency of Further, the evidence shows that Scoot- the evidence for Schindler’s issue thirteen. er additional in the experience pain will orthopedic The two tes- surgeons future. impairment, Physical some deglov- because of the traumatic tified that enjoyment life, times called loss en ing and toes of the skin from Scooter’s compasses injured party’s the loss of infection, foot, prone he will be more to Stores, lifestyle. former Wal-Mart Inc. v. graft osteomyelitis, and skin breakdown. Holland, 590, 599 (Tex.App.— 956 S.W.2d Scooter’s future medical care includes fur- 1997), Tyler grounds, rev’d on other including bony surgeries, ther removal of curiam). To receive (per dam amputation and his remain- overgrowth ages physical impairment, injured for ing Testimony by one the sur- toes. party that the effect prove must of his geons psychologist that by and show physical beyond impairment any extends fear, surgeries additional will entail these impediment earning capacity to his and worry, problems, pain.8 emotional and beyond any suffering pain the ex record, After review of the entire that produces separate tent and dis we there is factually hold that sufficient tinct loss and for that is substantial which pain future an evidence of mental compensated. Og he should Peter v. be review, guish. part As of this we have also Serv., Inc., den Ground some exists determined whether evidence (Tex.App. [14th Dist.] — Houston by amount justify the awarded writ). no Fidelity as fair and reasonable. Saenz argues Schindler Scooter func- Underwriters, & Guar. Ins. tioning normally age, for a child his fu Given Scooter’s present physical limitations. The evi- surgeries, including care and ture medical plays dence shows Scooter various costs, say jury’s their we cannot that the runs, “satisfactory sports, and has motor $1,000,000 his pain award of for future elementary according skills” to his teacher. is unreasonable. Certain anguish mental testified, fact, “I can do all the Scooter ly, contrary amount is not so occupational I An things used to do.” weight of the as to overwhelming evidence from her therapist review of testified unjust. Accordingly, clearly wrong be case, in the she foresaw no records cross-point that we sustain the Andersons’ physical limitations Scooter. remitting the trial court erred argues light pres- that in of Scooter’s thus $308,393.57. $1,000,000 from award limitations functioning, ent future issue as to overrule Schindler’s thirteen nothing speculation. but anguish. and mental pain future about argument Schindler’s Scooter’s n ’ Impairment Physical ignores current the weeks of con- condition $1,000,000 where he jury awarded for valescence that he endured could The walk, $5,000,000 parents, not was carried past impairment and physical point, At one he bedpan. had to use a physical impairment. for future morphine af- participate required 8. Scooter six weeks of will be able which Scooter swimming. surgeries. ter his competitive first five level is *20 Torres, only could move about his house in a 161 Tex. (1960).
wheelchair or scooting along with his legally There is sufficient evidence bad foot held the air. Additionally, Further, he disfigurement. of Scooter’s required physical therapy to learn to walk evidence, of all the review there is factual- on his foot. There is legally both and ly sufficient evidence. jury The viewed factually sufficient evidence of past physi- foot, photographs Scooter’s with its impairment. cal missing misshapen damaged toes and bottom. jury The also viewed Scooter’s physical As to future impairment, Dr. foot in the courtroom. According to all Buckle testified that Scooter has a “perma- witnesses, injury was severe. tes- impairment.” nent injury Because his timony and documents at trial showed that toe, ripped out his big ability his to bear foot, Scooter refused to look at his even altered, weight is and running will be more during bathing. He wears sock at all difficult. Dr. Baxter testified that even times, swimming. even when He has told walking Scooter’s will be affected and that his mother “stinky his foot is and I hate limps Scooter when he is tired. The evi- it.” The occupational defense’s therapist life, dence also throughout showed that his agreed even that amputees normally Scooter will have to guard against any looking uncomfortable at and touching friction, movement that causes which their stump, grow out of this discom- damage would graft the skin on the ball of fort over time. Although he has shown his his foot. He will have problems with class, foot to his Scooter has also asked standing long for periods and with climb- playmates to leave when his sock is ing. two, When he has his remaining Further, changed. there was evidence removed, clawed toes only steps shortened future, that in the experience Scooter will will enable him to walk “appre- without an overgrowth bone and probable loss his ciable limp.” Although Schindler claims remaining toes, clawed causing further de- impairment future speculative, is at formity. Lastly, thick, prominent he has a throughout instance this evidence did keloid scar from where skin was taken to object Schindler testimony graft. speculative. We find that there is also
legally and factually sufficient evidence of future impairment. We overrule issue 5. Past medical thirteen to this extent. cross-point, their Andersons claim that the trial court’s re- Disfigurement mittitur of past damages medical was er The next element of jury ror. The awarded the Andersons challenges disfigurement, for $70,000 for past expenses, medical but the $3,000,000 which the awarded past for trial court remitted this amount $3,000,000 disfigurement. future $48,226.75. The evidence at trial shows The trial court remitted each of these that Scooter had endured surgeries five $914,663.91, amounts and the Andersons foot, physical therapy, two months of a have not appealed the reduction. wheelchair, cast, a walking prosthetic two Disfigurement socks, is “that which im swim and counseling. Testimony at pairs injures beauty, or symmetry, or trial shows that at the time of Dr. Baxter’s appearance ...; person of a deposition, that which past Scooter’s medical bills unsightly, misshapen $68,691.69. renders imperfect, billing were Medical submit or deforms in some manner.” just Goldman v. ted in evidence totaled over
$72,000 care. the tium. evidence that he for Scooter’s Because The shows was factually support deprived company is his son’s in evidence sufficient of usual the $70,000 medical, in jury’s past award of hospitalized, the weeks Scooter was the time wheelchair, trial court in the remitting spent the erred he in a when and he $48,226.75. Accordingly, award to we sus- walking During received his cast. the cross-point walk, the to this tain Anderson’s as time that could not he Scooter damages. element of carried, much infant who had to be like an fed, Further, bedpan. a given and his Mr. of Anderson’s Loss Consortium child that because psychologist testified of twelve, incident, In issue Schindler con prematurely Scooter sees factually that there and legally change tends is imperfect. Mr. as Such Anderson of Mr. usually insufficient evidence Anderson’s parent in of a does perception not By of past cross-point, loss consortium. years. teenage occur until Scooter has that the the Andersons contend trial court expressed and at his anger blame father jury’s the of remitting erred award Lastly, for the incident. Mrs. Anderson $100,000 past loss of consortium. about testified that Scooter has doubts his was the father because Mr. Anderson one consortium, Loss of or com him This has been with on the escalator. injury is a the panionship, significant ... problems that “kills Scott source of worthy familial of relationship compensa According to terribly.” him her hurts Schindler, 651 tion. Sanchez v. traumatic testimony, the incident had been 249, 252 compris Consortium they to the that were family. She testified flowing positive the from the es benefits family still the unit back trying put comfort, love, care, companionship, and so together they struggle everyday. and that ciety that a claimant would have received Taken the light in the most favorable negligence Reagan the not occurred. had verdict, evidence legally sufficient this is 463, (Tex.1990); Vaughn, 467 804 S.W.2d of loss support claim of Mr. Anderson’s Brown, 312, Enochs v. 872 S.W.2d 321 consortium. writ); 1994, no see (Tex.App. — Austin Lillebo, (Tex. Moore v. 722 S.W.2d 688 In all the for factual reviewing evidence 1986). supreme court has recognized reveals that at sufficiency, the record also subjective that “these terms concern states trial, played the on dad’s time of Scooter difficulty present which some translat pitch team for his father is baseball which the loss into a dollar amount.” ing Whitt fishes, coach, hunts, golfs the he (Tex. Miller, lesey v. 667 572 S.W.2d Additionally, father. the with 1978). However, some of factors that Mr. Andersons cite evidence jury may determining consider that his to tell Scooter toes Anderson had the severity include of damages amount back, Mr. Anderson were growing not actual effect on the injury its psychologist, a child consulted with age, parent-child relationship, child’s seeing injury effected Mr. his son’s occur relationship child’s the nature anguish greatly, and that mental Anderson child’s parent, emotional However, day. him through every flows physical Reagan, characteristics. See examples these of Mr. Anderson’s (discussing child’s loss separate- mental for which he was anguish, consortium). parental $70,175.43. all the rec- ly Given awarded ord, of Mr. find that the evidence legally find that is sufficient we there not so Mr. loss of Anderson’s loss of consortium Anderson’s consor- evidence Id.; Wig contrary so weak or evidence to the amounts attributable J. thereto. Co., overwhelming jury’s 665; as to make the find- Brook glesworth S.W.2d at ing manifestly un- Bros., of such to be Wagnon, Inc. v. shire 979 S.W.2d shocking conscience, or a just, to the clear 343, de (Tex.App. Tyler pet. — short, demonstration bias. the evi- nied); Merritt, Duron Anderson’s dence of existence of Mr. writ). Christi (Tex.App. Corpus— *22 of past factually loss consortium is suffi- discretion, must Despite broad there this cient. justify “be amount some evidence the awarded,” jury a “cannot a simply pick as Damages
7. Excessive Saenz, it in put number and the blank.” factually have concluded that and We 614. 925 at S.W.2d sufficient for all ele- legally evidence exists case, above, In as detailed this we damages ments of Much discussed above. convinced that the evidence the supports however, argument, of Schindler’s focuses damages. existence of each element of legally the whether evidence is and evidence, thorough From a review of the factually support sufficient to the dollar justi- that we also find there is evidence to of damages opposed amount awarded as fy the amounts awarded. Scooter suffered damages. the mere existence of those severe, injury a traumatic when the escala- Schindler contends that the amount award- muscles, skin, tor toes ripped be fair his and the ed must and It reasonable. insists that from aggregate jury finding of and the bottom of foot. nerves his $16,970,000for “the anguish, loss of three toes” is pain, disfigurement The and he not “clearly supportable.”9 It seeks either has suffered and will suffer is substantial. a new trial further to a remittitur total injury ages, impair As he his will him from $660,000. award less than of full, physical reaching potential he once relationship had. His father The supreme has court held detrimentally has been effected. ex- Our jury that a award should be an amount jury’s amination of verdict shows “fairly that would reasonably compen carefully it measured each element dam- of Saenz, [a] sate for loss.” 925 S.W.2d ages. It awarded zero dollars for Scoot- (addressing valuation); 614 anguish mental earning er’s of Mr. capacity, loss Ramirez, Russell consortium, Anderson’s future loss of Mr. (Tex.App. no [14th Dist.] — Houston future anguish, Anderson’s mental writ) (addressing fair and reasonable com past Mrs. Anderson’s and future loss of pensation for mental anguish, of com loss medical, For future consortium. it award- panionship, and past damages and future ed less than the maximum death). amount for son’s of dam “measure orthopedic testi- surgeon which Scooter’s personal ages injury in not case is sub Clearly, jury pick just fied. did not ject precise mathematical calculation.” Sanchez, factually numbers the air. As suffi- from Weidner support jury’s cient exists to “evidence (Tex.App. [14th Dist.] — Houston Thus, verdict, court pet.). jury will not substitute its has wide discretion Weidner, resolving pain suffering, judgment jury.” matters of of the disfigurement, impairment setting the thir- S.W.3d at We overrule issue argues appealing $16.97 9. Schindler about the million not mil- $10 Andersons are some award, ultimately not the award- amount lion that the trial court remitted. However, ed the trial court. challenge damages argument types prod- the amount of Their about other teen’s error, liability uct was litigation awarded. was but objection curable with not proper did summation, have we overruled issue jury’s cause reversible harm because the part twelve and found Schindler did clearly grounded on the proper verdict preserve part. not have error We also proceedings. There was sufficient evi- overruled issue thirteen. have sus- proximate cause. dence of cross-point. tained Andersons’ apportionment waived its issue about liability. was sufficient evidence to There LIABILITY STRICT support existence each element issues, remaining Schindler’s numbers damages as well as amount through liability. three eight, address'strict liability Finally, product awarded. strict Even if we addressed these issues and *23 given disposition our on issues moot error, found the Andersons’ could still re negligence issues. jury cover because found in their favor the factually there was sufficient Because negligence on the issues. Transport See past of and medi- evidence Scooter’s future Faircloth, Ins. 898 Co. 274 S.W.2d costs, and pain cal Scooter’s future mental (Tex.1995) (where jury returns verdict on past anguish, and loss of Scott Anderson’s theories, prevail two more or alternative consortium, in trial court erred remit- the ing may under alternative party recover jury’s damages. for these ting the awards judgment theory if on re theory one is to four We the remittitur as these reverse “In appeal). versed on cases where the of amounts. remand for calculation We judgment multiple rests on theories of re opin- the with this damages in accordance appellate an court need ad covery, not ion. any theory if one dress all causes of action Bag Co. Washington,
is valid.” Checker affirm remainder the trial the (Tex.App. S.W.3d judgment. court’s — Waco denied); Enter., pet. George Inc. v. Grubbs En Banc court of Chief Justice consists Bien, (TexApp.— 851 n. 7 BRISTER, YATES, Justices 1994), grounds, Fort rev’d on other Worth ANDERSON, FOWLER, HUDSON, Because we EDELMAN, FROST, SEYMORE and challenges have to the negli overruled Justices GUZMAN and Senior verdict, gence portion of the we need not DRAUGHN, LEE. SEARS liability address the strict issues. Justice, BRISTER, Chief SCOTT rehearing dissenting on en banc. denial CONCLUSION importance of the issues dis- conclusion, Given trial court did not err below, case be cussed I believe this should admitting in the muted portion en banc rather than decided the Court did videotape. Dateline Neither visiting panel judges. Because of three in finding expert, court err Andersons’ deny majority the Court votes White, qualified testify. Carl banc, en I rehearing respectful- motion for complain ap- preserve did not error ly dissent. reliability White’s peal of Carl about “send a mes-
testimony. The Anderson’s The Punitive Problem sage” jury argument improper, not was evidence, only damages an Punitive are warranted required on the based shows convincing clear and evidence objection preserve any appeal. when error everywhere, directly malice or fraud.1 The trial court ruled to talk to the board compa- of directors of all the escalator case, there was no in such evidence this because, me, nies in the world believe plaintiffs appeal ruling. and the do not they’re very this trial. It is watching Nonetheless, panel’s in all probability unlikely you have the opportu- will judgment includes them. nity as much as you to serve mankind happened quite What in this case is case, will have in to do so much this punitive clear—the included If good your for children. verdict guise damages. of compensatory large enough listen to it and they’ll Three facts make plain: they’ll changes. make plaintiffs’ 1.The told them to counsel n n n n n n motion, do it. On Schindler’s trial beg you justly, proud, I be to write jury’s bifurcated.2 The first verdict should home, all you go you, when this week only compensatory have included dam- is, your family whenever asks ages.3 Compensatory damages are intend- Court, you, you you what did do can whole; ed plaintiff punitive to make a eye say, look them in here’s others, damages are to deter intended what I I did Court. made this com- “altogether purpose.”4 different But dur- munity place and this a safer world (when ing his closing rebuttal Schindler’s live in I make it helped because safer for *24 attorney longer respond), could no people. little attorney urged jury Andersons’ jurors they 2. The said did it. Schin- damages just award that would not com- dler motion attached to its for new trial pensate clients, but would “send a mes- newspaper two articles that referenced sage” to the industry: entire escalator following post-trial by jurors: comments your I’m convinced with verdict when “None of us had an idea there would be you reach you’ll the truth that send a punitive a thought side. what we message indubitably loud and clear to doing [in were the first verdict] industry they escalator carry can’t sending message industry,” to the said more; any this charade on it’s been juror Kevin Fletcher Houston.5 going uncovered and they’re to make they Jurors said 10-2 verdict after the reasonably those escalators safe. punitive did not realize would be a there
damages phase awarded the $17 million to send May on 21 Schindler a gentlemen, you Ladies jury. are the message. day, they The next awarded You are the conscience this communi- $100,000 only damages.6 in punitive such, ty, beg you and as we to send a declaration to escalator industry. they 3. The verdict did it. The shows you through When walk that door of jury returned a verdict million as $16.97 you opportu- $100,000 room will have an compensatory only but damages, nity parents, on punitive damages. beginning behalf of all all children as From Nissimov, See Tex. Civ. Frac. 5. Ron § 1. Punitive set esca- &Rem.Code 41.003. for accident, 23, Chronicle, May lator Houston § 2. See id. 41.009. 1998, at 37A. § 41.009(c)(2). Id. 3. Nissimov, Judge 6. Ron reduces award in child- case, 11, Moriel, injury August Transportation Co. Ins. v. 879 4. Chronicle, Houston 10, 1994). 1998, (Tex. 16 at 15A. 418
end, 1987, years ago. Kilgarlin Andersons’ case focused show- Justice writ- majority ing Supreme in an In- for a of the ing negligence industry. entire Texas Utility Larson v. Cactus Co. deed, Court held they safety had little choice —the that courts of should thenceforth plates designed only appeals by liability side their factual-sufficiency apply a standard of re- expert like this to avoid accidents one had An review had rejected view.7 abuse-of-discretion by just by been not Schindler but standard, previous “long- been the under Moreover, all its competitors. appel- unani- precedent” established several by cross-appeal lees make no effort Supreme opinions, pointed Court as mous reinstate than “compensa- more 60% of the Hill by (joined by out Chief Justice John tory” jury. damages awarded Un- Gonzalez) in Justice Raul dissent.8 the jury less compensatory confused punitive damages, this verdict makes little change put out-of-step Texas This sense. thirty-nine most other states. At least our a trial sister states review court’s or-
Revising the Standard of Review der remittitur for abuse of discretion.9 reviewing Only apply standard a trial a handful of states a different standard, changed usually special court’s order of remittitur fifteen due to statute 640, 650, 1987). (Tex. Authority, Housing 7. 730 S.W.2d 641 Mass. 378 N.E.2d 375 971, (Mass. 1978); Palenkas v. Beaumont 979 C.J., (Hill, dissenting); Id. 642 see Flani 354, 527, 443 N.W.2d Hospital, 432 Mich. Carswell, 598, gan v. 159 324 Tex. McKown, (Mich.1989); 530 354 Lundman 835, Freeman, (1959); 840 Wilson 108 Tex. (Minn.Ct.App.1995); Alpha N.W.2d 121, 125, (1916). 185 S.W. Jackson, Coast, Inc.v. 801 So.2d Gulf (Miss.2001); Moore v. Missouri-Nebraska Ex Willingham, 9. See Rainsville Bank v. Inc., press, (Mo.Ct.App. (Ala. 1986); So.2d International Bhd. *25 1994); Cartwright Equitable v. Assurance Life Workers, Elec. 1547 v. Alaska Util. Local of States, 1, Society 276 914 the United Mont. of Const., Inc., 852, (Alaska 1999); P.2d 976 857 976, (Mont.1996); 998 Barbour v. Jenson P.2d State, 56, 1160, 157 Duncan v. Ariz. 754 P.2d Co., 512, Distributing 212 Neb. Commercial (Ariz.Ct.App.1988); 1166 Neal v. Farmers Ins. 824, 1982); (Neb. N.W.2d 827 Canterino 323 Exch., 910, 389, Cal.Rptr. 21 Cal.3d 582 148 415, Casino-Hotel, Mirage v. 16 P.3d 417 980, (Cal.1978); Blinder, P.2d 994 v. Walford (Nev.2001); Portsmouth, Daigle City v. 129 Co., 620, Inc., of Robinson & 793 P.2d 627 561, 689, (N.H.1987); 704 N.H. 534 A.2d (Colo.Ct.App.1990); v. Ins. Center of Alfano Sales, Corp., 206 D’ercole Inc. v. 607, 1338, Torrington, Fruehauf Conn. 525 203 A.2d 11, 990, (N.J. N.J.Super. Super 501 995 A.2d Carroll, (Conn.1987); 1342 A.2d 640 Moffitt v. Conley, Div.App.1985); 252 Ct.App. Welken v. 169, (Del. 1994); Toyota, 176 n. 2 S&S Inc. v. 311, (N.D.1977); v. N.W.2d 318-19 Betz 916, Kirby, (Fla.Dist.Ct.App. So.2d 649 920 Center, Mercy App.3d 96 Ohio Timken Medical 1995); 861, Willis, Lisle v. 265 Ga. 463 (Ohio 211, 1058, Ct.App. N.E.2d 1063 644 Funk, 108, (Ga.1995); S.E.2d 110 Toews v. 1994); Perry Hosp. Strubhart v. Memorial 316, 217, (Idaho 924 222 129 Idaho P.2d 263, (Okla. Authority, P.2d 270-71 Trust 903 1994); Ct.App. NC Trust Co. v. First Illinois Inc., Northern, 1995); Burlington v. Inc., 254, Oliver Bancorp, Ill.App.3d Illini 323 256 214, 272, (Or.1975); 925, 1167, 531 P.2d 274 (Ill. 271 Or. Ill.Dec. 752 N.E.2d 1178-79 Arms, 401, A.2d 539 Pa. 652 Neumann-Steadman, Haines v. Raven App.Ct.2001); Russell v. Blanchard, 1280, (Pa. 1995); 310 234, Rush v. 1282 (Ind.Ct.App.2001); 759 N.E.2d 236 802, 375, (S.C.1993); Inc., 806 426 S.E.2d S.C. Newton-Livingston, Lamb v. 551 N.W.2d Knudson, 242, 333, (Iowa Wangen 428 N.W.2d 244-45 v. Ct.App.1996); v. 336 York InTrust Inc., Stores, (S.D.1988); Bank, 271, N.A., 405, Wal-Mart Stevenett v. 265 Kan. 962 P.2d 431 508, Gillen, (Kan. 1998); Ct.App.1999); Brault 517 (Utah v. 977 P.2d C.N. Brown Co. 569 1365, 585, 1206, (Me.1990); A.2d 1366 Flynn, v. 166 Vt. 690 Gup A.2d Franklin v. 1209 Va., 345, 524, ta, (Vt.1996); (Md. Foundry Shepard Capitol Md.App. 81 v. 567 A.2d 533 (Va. 715, 72, Inc., Va. S.E.2d 75 Ct.Spec.App.1990); v. Stoneham 262 554 D'Annolfo
419 (cid:127) appellate or rule.10 like- rul- Federal courts because their own erroneous ings, wise follow the abuse-of-discretion stan- or because a member inattentive;16 dard of review.11 Factual-sufficiency review is appropriate (cid:127) improper because factors —such as appellate courts grant when remittitur.12 racism, bias, or have corruption may— appellate judges, nothing As we know award;17 jury’s influenced the except about a appears what (cid:127) reason,18 for no stated or even if a written grant record. We cannot a new reason wrong.19 stated conjoined trial —remittitur’s twin —for rea- appear sons that do not record.13 Undoubtedly, judge the trial here could granted a ju- have new trial because the trial courts But they enjoy much can — glaring answering rors made mistake broader in granting discretion a new tri- put questions to them. Because it They al.14 uniquely positioned are also would have been all determine wasteful for concerned jury’s whether award was twice, try passion prejudice judge based on than this case the trial prop- rather judges may reason.15 Trial grant erly gave plaintiffs tri- new a choice between a als: new trial and a As in every remittitur. 2001); 351, Inc., 531, Triplett, Enters., 983, Miller v. 203 W.Va. 507 72 Wash.App. 864 P.2d 714, (W.Va.1998); review). agem (de S.E.2d (Wash.Ct.App.1994) 719-20 989 novo Man Services, Hawkins, Ash, Computer ent Inc. v. Co., 158, 67,
Baptie &
206 Wis.2d
Browning-Ferris
557 N.W.2d
11.
Indus. Vermontv. Kelco
(Wis.1996);
Inc.,
257,
81
278-79,
Texas
Corp.
West Oil &
v.
Disposal,
Gas
492 U.S.
109
1056,
Fitzgerald,
2909, 2921-22,
(Wyo.1986).
(1989).
726 P.2d
1064
S.Ct.
versed on little We must more can be done. problem only grant can a new trial undo to dam- compare compensatory punitive plaintiff if the pre- harm —even would second; ages awards when we review fer remittitur. do the why is hard to see we shouldn’t same we the first.24 when review
The Panel’s Predicament panel in this case mil- upholds $3.5 Measuring the Unmeasurable lion of judgment adds more than —and problem A with Larson is further to though proba- million it—even both $1 (as intangible when are involved bly punitive By damages. include faithful- here), they are lack tools conduct we ly factual-sufficiency a applying standard Considering a all meaningful review. review, eye turn a panel must blind (as factual-sufficiency in this evidence case happened it: what this trial and after requires),25 review we find that: 1.Ignore plaintiffs’ what counsel (cid:127) hand, is on one Anderson Scooter said. The argument by Andersons’ child, a a remarkable happy has had error, attorney invited but Schindler’s many is recovery, currently active object. counsel did not makes a of Hous- sports, doing is well at one argument that plausible trapped— it was schools, and premiere private ton’s an objection played would have into future; appears bright have industry-wide plaintiffs’ theory of con- (cid:127) hand, undergone he has spiracy trying of silence that Schindler was the other already adjusting protect. harrowing injury, But this has still Court sufficiency v. Ku may again appropri be 22. Co. Texas Factual See Gannett Outdoor judge beczka, (Tex.App.—Houston ate when one hears the trial and a [1 *27 judge orders See Dist.]1986, writ). different the remittitur. 4 no th 128, Sterner, Oil v. 777 S.W.2d Marathon Co. 1989, (Tex.App. 133 no [14th Dist.] — Houston 327; 606(b). 23. P. Evid. Tex.R. Civ. Tex.R. writ). Monel, 24. 879 at S.W.2d 29. course, trial 21. Of in order to know which the did, judge there must be a statement of Francis, 46 25. v. S.W.3d Motoren, Dow Chemical Co. Bayerische 8 at reason. See S.W.3d 237, (Tex.2001). J., (Hecht, 242 dissenting) (arguing 327 judges granting a new should state reason for trial).
421 review, foot, of a of tion.... of large part the loss his Without some kind occasionally has exaggerated produce radically fears for incon- system will safety family, and that of his and sistent for the same kinds of awards many may undergo have more sur- injuries be to take on and destined will in the geries future. aspects lottery than it more of the a already has.26 Obviously, factually there was sufficient pain, evidence that Scooter suffered men- Larson, our Shortly one of sister after anguish, impairment, tal disfigure- position courts took for that awards factually ment. But was there sufficient intangible damages were immune from fac- pain evidence that future Scooter’s review; tual-sufficiency once some mental $1,000,000.00 anguish mental amounted to shown, anguish any damage was award $304,878.28? rather than that his fu- Or Texas factually sufficient.27 The Su- impairment ture physical amounted to preme rejected Court this approach, $1,524,390.80rather fig- than some lower appellate demanded that conduct a courts That, course, ure? say. is difficult to meaningful more review.28 Two highly-respected academics have But did suggest the Court not how.29 on this problem commented with Larson: Dean sug- Powers Professor Ratliff involving intangible damages, cases it gest judges compare jury’s should award will be difficult for appellate courts to with in similar awards cases.30 Schindler point specific testimony that demon- so, urges us to do pointing us cases (or inadequacy, strates excessiveness for injuries involving larger but ver- smaller matter). Nevertheless, common dicts. of our have tak- Some sister courts suggests sense that courts should have en approach.31 this authority some to review excessive or Putting aside the prospect macabre
inadequate damage
It
awards.
would be
comparing
to an-
permit
plaintiffs
unwise to
one
misfortune
any
make
other’s,
limit,
award it thinks fit
are
with
problems
without
there
numerous
even
though
is dealing
applying
approach
appellate
at the
quantifica-
resist exact calculation or
appellate
level.
Reported
opinions
not
Powers,
Ratliff,
$300,000
26.
by
juiy
William
Jr.
comparing
and Jack
An-
titur
award of
for
other Look at "No Evidence” and
past
anguish with
mental
other cases award
"Insufficient
Evidence,"
(1991).
69 Tex L.R.
565-68
$180,000
$125,000);
ing
Lee Lewis
Const.,
Harrison,
Inc.
64
v.
15-16
Robinson,
27. See
Brown
1999),
(Tex.App.
aff'd,
Sup.
Tex.
— Amarillo
1988, writ).
(Tex.App.
Paso
— El
(2001) (ordering
Ct. J.
WL
insufficiency
remittitur for factual
after com
Fidelity Guaranty
28.
&
Ins. Under
Saenz
$500,000
writers,
paring
award
for 4 seconds of an
guish
plummeted
ground
while
worker
Indeed,
29.
the Court has
addressed
never
Lar-
$10,000
with awards in other cases of
for 5
intangible damages;
son in
the context
Lar-
anguish
by
seconds
before
death
electrocu
only
son itself concerned
the market value of
tion, $20,000 for less than a minute of an
Larson,
corporate stock.
a
record,
appellate
No
much less
higher
precedent suggests
the state.
factual-
Court’s
the
any appellate opinion,
catalog
can
all
may
case
an
sufficiency review in this
be
from
may distinguish
facts
one trial
dimension.
error
constitutional
it
lim-
problematic
another. And
seems
In
Mutual
Insurance Co.
Life
Pacific
in a
family’s
by
it one
verdict
a verdict
Supreme
States
Haslip,32 the United
they
trial
in which
could
somewhere else
general
verdict
Court affirmed Alabama
participate.
not
compensatory
punitive
containing both
jury
But
see more
judges typically
trial
to be noth
damages.
appears
Thus there
do,
many
we
ver-
verdicts than
because
in a com
ing intrinsically unconstitutional
appealed.
dicts
never
Because their
compensatory
punitive
bined award of
smaller, they can
a
jurisdiction
compare
probable
the
damages, at
least when
locally,
jury’s
applying
with others
award
damages can
disc
be
punitive
amount of
un-
community standard unfamiliar or
pu
approved
the
the
erned.33 But
Court
They may
privy
known
us.
also be
in that case based on
nitive
award
damage
majority
in the
of cases
settlements
vast
procedural protections:
three
And, as
that are
trial.
resolved before
(cid:127)
jury
limited the
instructions
mentioned,
they
intangibles
see the
damages that would deter
punitive
never
may
appear
affect a verdict but
compensate,
rather
than
punish
trial
the
record.
imposition
and informed them
intangible
for
dam-
Reviewing awards
compulsory;
was not
ages
easy,
judges
will never be
but trial
(cid:127)
the trial
post-verdict
required
rules
we
disposal
more tools at
than
have
their
or
affirming
for
judge to state reasons
case,
jurors
mak-
do.
this
the
admitted
award; and,
reducing
punitive
the
verdict,
ing a
and an
mistake
their
re-
experienced
judge
by
reduced it
(cid:127)
provided
appellate review
detailed
mittitur.
do not chal-
appellees
Even
meaningful constraint
definite and
lenge
of what he did. But on
most
awarding puni-
discretion
jury’s
in-
challenge
three
do
they
reductions
—all
damages.34
tive
panel uniformly
tangible damages —the
protections,
procedural
Because of these
disregards the remittitur and restores
in that case
punitive damages awarded
the.jury
mistakenly)
(probably
numbers
area of
not
the line into the
did
“cross
Supreme
hope
wrote.
I
Texas
Court
impropriety.”35
constitutional
whether,
in-
at least as to
will reconsider
case,
pro-
procedural
But in
these
to be
tangible damages,
ought
room
some
each
thwarted.
judge’s
tections have
been
left for a trial
discretion.
instructions,
ad-
but
jurors
proper
received
Considering
Constitution
Detailed
them.
they
mitted
didn’t follow
factual-
is limited
court,
appellate review
we
appellate
As an intermediate
Final-
under Larson.
sufficiency
standard
merely because
disregard
cannot
Larson
rea-
judge
the trial
stated
ly, although
requires
intangible,
us measure
remittitur,
his across-the-
at trial. But there
sons
ignore
happened
what
19-22,
S.Ct. at 1044-46.
34.
423 consider; (1) suggests appli- all something ing board cut tainted en banc whether (such damage “sending awards factual-sufficiency as in this cation of review support- (2) not that message”), unconstitutional; and, the evidence case is whether If, of them ing ap- a few was weak. as preserved any has claim. Schindler such likely, pears he ordered remittitur because
punitive damages were awarded without EDELMAN, Justice, H. RICHARD required protections by per- state denial of banc. concurring rehearing on en law,36 haps constitutional factual-sufficien- for dissenting opinion The on motion cy requires review us to undo that result. banc more rehearing en raises issues far addresses; fundamental than those which it Conclusion important system 1. How is to our have not parties addressed these justice decisions be reached questions. post-ver- constitutional its i.e., manner, impartial on based dict motions and appeal, on issues, law, pre- and evidence argues punitive damages never mas- sented rather than other consider- querading compensatory damages as are ations? they “unconstitutional.” But it claim does could suggest greater 2. What lack of “unfair,” “inappropriate,” are “de- than case impartiality to decide a plorable,” error,” “fundamental “out of on a on an change based the law synch,” a “clear violation Texas stat- by party? issue not raised either utes,” “extraordinarily “incura- improper,” FROST, Justice, KEM THOMPSON ble,” “excessive,” public and “violated the concurring denial of banc. rehearing on en policy legislative underlying mandates bifurcated trials exemplary damages.” separately I respond write to the liberally
We must
construe
dissenting opinion
Schindler’s
the denial of rehear-
brief, and
all points
address
which it
A
ing
majority
en banc.
of the
banc
en
our
directed
attention.37 In some circum-
court
not to
panel’s
voted
reconsider the
stances, we must
Tex.R.App.
decision en banc.1 See
constitutionality
address
P. 49.7.
if it
obvious and apparent,
is
if
compelled
exacting
even
the That
decision
parties
Thus,
leave it unmentioned.38
I
en
imposed by
standard for
banc review
grant
would
Schindler’s motion for rehear-
Rules of Appellate
Texas
Procedure.2
Although
56,
1993),
36.
Supreme
(Tex.App.
Texas
Court has
S.W.2d
58
Worth
—Fort
question
proce
reserved
whether these
by agreement,
writ withdrawn
Appellant’s rehearing for en banc motion upon be based banc review should en did not address the standard for banc points in the motion rehear- asserted 41.2(c). in Rule Appel- review as set forth Furthermore, party seeking en ing. lant cite a did not direct conflict be- specific set forth the banc review should any panel opinion tween the other why the case meets standard reasons Thus, re- opinion of this court.4 en banc for such review. in to main- required view is not this case uniformity tain our decisions. en court majority of the banc Whether panel disagree part with all or a Appellant may also failed to delineate the for en banc opinion is not the standard extraordinary circumstances necessi- that an is an assertion by en court. Neither tate review banc While review. Rather, sufficient. “important” learned Chief asserts that issue is our Justice Su- by the Texas dissenting promulgated in the rules opin- issues he discusses extraordinary preme require Court denial en banc review are ion in 5.Appellant three issues the motion: language portion Rule is raised 3. The in this 41.2 nearly (1) compensato- former request punishment identical to that rule. damages ry phase constitutes incurable Appellant only noted that Gannett Outdoor (2) argument; are exces- the actual Kubecaka, (Tex. Co. Texas argument; and and infected incurable sive writ), App. Dist.] [14th — Houston testimony (3) expert on causation unqualified panel opinion, cited should which was erroneously admitted. not the outcome in this case. control ordering circumstances exist before en CORPORATION, SAMEDAN OIL
banc review when there no conflict *31 Appellant, among panel decisions. issues before panel important, in this case are but appellant heightened has not met GATHERING, INTRASTATE GAS imposed criterion in the rule.6 INC., Appellee. reasons, For these I concur respectfully No. 12-99-00242-CV. majority deny with the decision to rehear- Texas, Appeals of Court of ing en banc.
Tyler. SEYMORE, Justice, W.
CHARLES Sept. 2001. rehearing denial concurring on en banc. I separately response write to Chief Justice dissent. Notwithstanding Blister's
Judge Brister’s ruminations about matters record, appellate agree
outside the I with evaluation events that resulted in consideration and of punitive assessment
damages by jury. a misinformed Howev- er, there claim panel’s is no opin- ion opinion conflicts with another rendered by this court. The by appel- issues raised
lant for banc en consideration do not
amount to “extraordinary circumstances” Tex.R.App. prerequisite to review en banc. 41.2(c). Accordingly, I concur with the
majority decision to deny rehearing' en banc. State, Center, Berchelmann, way Willover Care Inc. v. Cf. (Tex.App. pet. (Tex.App. [1st Dist.] 873 n. 2. Antonio — Houston — San J., (Taft, ("The granted) dissenting) orig. proceeding) (explaining that ex panel traordinary opinion’s holding effectively circumstances for banc review prevail en turns rule, around, majority disagreed were ing degrees satisfied when overturning panel’s ruling interpretation of law its appeal ruling trial decision court’s such if mandamus, extraordinary remedy to issue previously incorrect a reason not mentioned for beyond urgent I find this which is appeal. either at or on reserved manifest extraordinary.”) (emphasis original); necessity). Crest