Opinion issued August 15, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-01032-CV
———————————
STEWART & STEVENSON, LLC, Appellant
V.
BRADY FORET, Appellee
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Case No. 2009-80709
MEMORANDUM OPINION
Appellant, Stewart & Stevenson, LLC, challenges the trial court’s judgment,
entered after a jury trial, in favor of appellee, Brady Foret, in Foret’s suit against
Stewart & Stevenson for negligence. In three issues, Stewart & Stevenson
contends that the trial court erred in not including in its jury charge an instruction
on the law of responsible third parties,1 awarding excessive future damages, and
admitting Foret’s late-filed evidence.
We affirm.
Background
In his fourth amended petition, Foret alleged that on January 11, 2009, while
he was working as a “derrick man” for Key Energy Services, LLC (“Key Energy”)
on a 112-foot land-based oil drilling rig (“Rig 65”), the mast collapsed, causing
him to fall over eighty feet to the ground and suffer severe injuries. Rig 65 had
previously been refurbished and inspected by Stewart & Stevenson at its facility in
Odessa, Texas. However, Rig 65 collapsed because it was missing at least two
“safety pins and retainer pins” and “critical safety equipment” that should have
been provided by Stewart & Stevenson during the refurbishment. Foret, who was
twenty-three years old at the time of Rig 65’s collapse, “sustained severe bodily
injuries, including orthopedic injuries and a traumatic brain injury, which have
resulted in physical pain, mental anguish and other medical problems, including
1
See TEX. CIV. PRAC. & REM. CODE ANN. § 33.004 (Vernon 2012).
2
disfigurement and impairment.” Foret sought to recover from Stewart &
Stevenson $10,702,459.52 in damages.2
In its second amended answer, Stewart & Stevenson generally denied
Foret’s allegations, asserting that Foret’s injuries were caused by his own
negligence or the negligence of “third parties over whom [Stewart & Stevenson]
had no control or right of control.” Before trial, Stewart & Stevenson filed its
“Motion to Designate Responsible Third Parties,” seeking to designate Apache
Corporation (“Apache”), Robert McLemore, and Key Energy as responsible third
parties. Apache was the well site owner and operator at the time of Rig 65’s
collapse, and McLemore was the “company man,” working for Apache and
responsible for overseeing the operation. Stewart & Stevenson alleged that
Apache and McLemore were negligent in “improperly using a foundation/pad that
was designed and constructed for use by a different drilling rig”; failing to “design
and construct a foundation/pad for the drilling rig”; “ensure that the drilling rig was
properly equipped with all safety devices”; “adequately inspect the drilling rig”;
and “provide a safe workplace.”
After the trial court granted Stewart & Stevenson’s motion, Foret filed a
“Motion to Strike Designated Responsible Third Parties,” arguing that the collapse
2
In his original petition, Foret also brought claims against T.K. Stanley, Inc.,
alleging that T.K. Stanley was negligent in constructing the foundation on which
the rig stood. However, Foret later non-suited his claims against T.K. Stanley.
3
of Rig 65 occurred solely because “the derrick was missing critical pins for support
and essential for safety.” Foret asserted that Rig 65’s collapse occurred on its first
use after being refurbished by Stewart & Stevenson, which had produced no
evidence to indicate that Apache, McLemore, or Key Energy were responsible for
his injuries. Foret also noted that Apache was found not liable for Rig 65’s
collapse in a companion case filed in the United States District Court for the
Eastern District of Louisiana.
Stewart & Stevenson later filed a “Motion to Strike [Foret’s] Late-Filed
Discovery,” asserting that Foret had produced to Stewart & Stevenson, after the
July 1, 2011 discovery deadline, among other evidence, a medical report from Dr.
Paul J. Hubbell, III on July 7, 2011 and an expert report from Terry Arnold on July
11, 2011. In her report, Arnold produced a “Life Care Plan” for Foret, opining that
Foret would incur $679,296 in future medical and related needs. Stewart &
Stevenson alleged that Arnold’s report was based, in part, on the late-filed medical
report of Hubbell, who estimated that Foret would require $259,710 in pain-
management treatment.
Foret testified that on January 11, 2009, he was assigned as a ‘derrickman”
on Rig 65, which was then located in Golden Meadow, Louisiana. As a
derrickman, Foret stood on a platform, referred to as a “monkey board,” hanging
off the side of Rig 65’s mast, approximately eighty feet off of the ground. It was
4
his job to stand on the platform and “rack” the drill pipes on the mast, change the
pipes, and ensure that they were aligned correctly. When Foret began work on Rig
65, it was “flagged,” meaning that another derrickman had set up the rig to be
worked on. He explained that before Rig 65 collapsed, he did not see any
indication that it was tipping one way or another. And, as he was working on the
monkey board, Foret suddenly heard “a loud pop” from above and felt the rig “start
to collapse.”
Foret’s next memory was of waking up the next day in a hospital with a
ventilator hooked up to his throat and his jaw wired shut because he had undergone
jaw surgery while unconscious. His head, face, and right eye were swollen,
making it difficult for him to see out of the eye. Foret also suffered a broken
shoulder blade, a torn rotator cuff, a torn tricep, several rib fractures, a torn
posterior cruciate ligament in his left knee, a collapsed lung, and several spinal
fractures. At the time of trial, Foret still felt back pain, suffered from recurring
knee problems, and had short-term memory loss. And he explained that he would
have to undergo cognitive rehabilitation therapy for his injuries for the rest of his
life.
Foret offered, and the trial court admitted, into evidence a report prepared by
Francisco Godoy and Roger Craddock of Engineering Systems Incorporated
(“ESI”), analyzing the cause of Rig 65’s collapse. In their report, Godoy and
5
Craddock explained that Rig 65’s mast consisted of a lower and an upper section,
which are connected at four sets of “pawls.” When the upper mast was extended,
the pawls were simultaneously lifted, transferring the weight of the upper mast to
the lower mast through the pawls. The pawls each contained a “link lock
mechanism” that secured them to the mast with a locking, or safety, pin. Each set
of pawls required its own locking pin; so, properly constructed, Rig 65 should have
contained four locking pins for each set of pawls.
Godoy and Craddock opined that when the pawls were lifted on Rig 65 on
the date of the collapse, it was “highly likely” that a locking pin became loose due
to “mechanical vibrations or other mechanical operations.” When the locking pin
became loose, the “entire upper mast load, which was supported evenly on both
sides, suddenly became supported” on only the “‘Off Driller’ side left leg” of Rig
65. As a result, the weight placed on the Off Driller side of the left leg “exceeded
the maximum allowable” and caused Rig 65 to begin to buckle. Eventually, the
upper pawl on the Off Driller side “slipped or skidded” off the lower pawl, the
upper mast started to lean towards the left, eventually causing it to detach from the
lower mast and collapse Rig 65. Godoy and Craddock concluded that: (1) if Rig
65 “had been provided with the four locking pins, it is unlikely that the collapse
would have occurred”; (2) Stewart & Stevenson should have, but did not, provide
Rig 65 with four locking pins during repair; (3) Stewart & Stevenson’s inspectors
6
“were not well enough trained and knowledgeable”; and (4) because “the rig was
able to accommodate the extra forces applied by the tautening of the guy-wires,”
the tautening “could not have been the cause of the buckling that caused the final
collapse of the rig.” At trial, Godoy testified to the same facts and conclusions.
Mark Henderson testified that he was the general manager of Stewart &
Stevenson’s Odessa facility beginning in November 2008. He estimated that
Stewart & Stevenson finished its refurbishment of Rig 65 between April and July
2008. After Rig 65 had been shipped for on-site work in Louisiana, Stewart &
Stevenson received a call from Key Energy requesting a technician to provide a
“replacement pin” for Rig 65. Henderson noted that after refurbishing a mast,
Stewart & Stevenson would have a quality-control technician test and certify the
mast before it left the Odessa facility.
Roy Mendoza, a Stewart & Stevenson quality-control technician, testified
that he conducted the final inspection of Rig 65. He noted that, if he had noticed
any missing locking pins, he would have reported it on the final inspection
checklist. Mendoza did not recall whether the technician made sure the locking
pins fit where they were supposed to fit. He was also not aware of how many
locking pins Rig 65 required, but he agreed that a Stewart & Stevenson employee
must have been responsible for ensuring that all of the locking pins were in place.
7
Mendoza marked on his checklist that the mast was sufficient even though he had
only seen two locking pins on it.
Jose Barron, the Stewart & Stevenson refurbishment manager in July 2008,
testified that he was responsible for the employees who refurbished and certified
Rig 65. He performed his own inspection, an “AESC Category 4 Inspection,” of
Rig 65 after the refurbishment work had been completed. Barron noted that one of
the purposes of an AESC Category 4 Inspection is to ensure that the locking
system is working adequately. He admitted that if Rig 65 was missing two locking
pins, it would not have met industry standards. However, Barron further testified
that, even with only two locking pins, the rig should have been able to carry the
maximum load of 300,000 pounds, as represented by Stewart & Stevenson.
John Michael Garber, an environmental, health, and safety coordinator with
Apache, testified that Apache did not perform a safety audit on Rig 65 prior to its
use. After the collapse of Rig 65, he interviewed the Key Energy employees who
were at the site, and they told him that there was nothing “abnormal” about the site,
except that the pollution pans, which had been attached to the rig’s foundation so
as to store contaminated pipe segments, had begun sinking about “six to seven
inches.” Garber noted that Apache, through McLemore, had been informed of the
sinkage the day before the collapse, and McLemore decided to take the pipes out of
the pollution pans and place them back into the well.
8
Tracy Lee Duhon, a floor hand at the time of the collapse, testified that on
January 8 and 9, Key Energy realized that the rig had a “misalignment problem,”
which it attempted to fix by using hydraulic jacks. And, on January 10, Duhon
was told to go back into the well because the pollution pans had started to sink.
Joshua Matthews, who worked on Rig 65 with Foret, testified that on their
first day working on the rig, they experienced some problems with the derrick
“leaning too far.” The problem could not be fixed with hydraulic rams, and a later
attempt was made to fix the problem by pulling on the pipe with “chain and cable”
in an effort to properly align it, which also did not work. By the second day,
Matthews noticed some movement in the foundation of Rig 65, but he did not think
that it was behaving abnormally. On the third day, January 10, Matthews was told
that pipes were being moved out of the pollution pan and back into the well so
“they could fix the area where the [pollution] pans were sitting.” When they were
down to thirty-three segments of pipe to place back into the well, Rig 65 collapsed.
Roland Duhon, a foreman for Apache, testified that after the collapse,
Apache contacted T.K. Stanley, Inc., which had constructed the foundation of Rig
65, to remediate the foundation. Duhon noted that, if Rig 65 was having “pole
alignment problems,” he would have relied on McLemore to “shut the operation
down” until “things [were] safe.” He opined that Key Energy was “ultimately
responsible” for inspecting Rig 65 and its foundation, and he explained that the
9
sinkage problem had to be addressed before another rig was placed on the
foundation.
Clyde Ned, the “rig supervisor” of Rig 65, testified that had he known that
the rig was missing its safety pins, they would have welded their own pins to the
rig. However, he thought a rig with two out of four pins would be “safe to use.”
Ned explained that adjusting guy wires, wires which were attached to the top of
Rig 65’s mast to help keep it stable, should not be used to correct alignment
problems. And Casey Trahan, a driller floorhand on Rig 65, testified that the crew
had tried to “tighten up” the guy wires to correct the alignment problem.
Timothy Popik, Stewart & Stevenson’s engineering manager, testified that
Rig 65 was “having an issue with the settling from the pollution pans,” which
caused alignment problems and made the pipe strike the side of the foundation.
Key Energy then decided to fix the alignment using hydraulic jacks and tightening
the guy wires, which was not “a proper way to proceed.” Tightening the guy wires
produced “extra stress and tension on the mast,” eventually causing the mast to tip
over.
In questions one and two of its charge, the trial court asked the jury to
determine whether the negligence of Stewart & Stevenson and Key Energy
proximately caused Foret’s injuries and, if so, to apportion a percentage of
responsibility to each. At the charge conference, Stewart & Stevenson objected to
10
questions one and two because they did not include Apache or McLemore “as
potentially responsible parties.” Specifically, Stewart & Stevenson asserted that
“the testimony from the experts essentially is that . . . an improper use of the guy-
wires . . . led to the [collapse].” However, the trial court concluded that “it doesn’t
appear from the expert testimony that Apache was opined to have caused in whole
or in part the collapse of the mast due to something that they did negligently,” and
it overruled Stewart & Stevenson’s objection.
The jury found that the negligence of both Stewart & Stevenson and Key
Energy caused Foret’s injuries, and it apportioned 85% of the responsibility to
Stewart & Stevenson and 15% to Key Energy. The jury further found that
$135,145 would compensate Foret for his loss of past earning capacity, $2,000,000
for his loss of future earning capacity, $1,000,000 for his past physical pain and
mental anguish, $5,000,000 for his future physical pain and mental anguish,
$850,000 for his physical impairment, $1,000,000 for his future physical
impairment, $69,678.53 for his past medical expenses, and $647,636 for his future
medical expenses. The trial court then entered judgment on the jury’s verdict,
ordering Stewart & Stevenson liable for the entire damage award.
Jury Charge
In its first issue, Stewart & Stevenson argues that the trial court erred in not
asking the jury to determine whether Apache and McLemore were also responsible
11
for Foret’s injuries because “the evidence and pleadings show” that their
negligence caused or contributed to his injuries.
We review a trial court’s decision to submit or refuse a particular jury
question or instruction for an abuse of discretion. See La.-Pac. Corp. v. Knighten,
976 S.W.2d 674, 676 (Tex. 1998) (per curiam). When a trial court refuses to
submit a requested jury question or instruction on an issue raised by the pleadings
and evidence, the question on appeal is whether the request was reasonably
necessary to enable the jury to render a proper verdict. Tex. Workers’ Comp. Ins.
Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex. 2000) (per curiam) (citing TEX. R.
CIV. P. 277, 278).
A trial court must submit to a jury questions, instructions, and definitions
that the pleadings and evidence raise. See TEX. R. CIV. P. 278; Elbaor v. Smith,
845 S.W.2d 240, 243 (Tex. 1992). A trial court may refuse to submit a jury
question only if no evidence exists to warrant its submission. See Elbaor, 845
S.W.2d at 243; Brown v. Goldstein, 685 S.W.2d 640, 641 (Tex. 1985) (citing
Garza v. Alviar, 395 S.W.2d 821, 824 (Tex. 1965)). That is, a trial court is
obligated to submit to the jury an issue if the evidence on the issue “amounts to
more than a scintilla.” Roy v. Howard-Glendale Funeral Home, 820 S.W.2d 844,
846 (Tex. App.—Houston [1st Dist.] 1991, writ denied). To rise above a scintilla,
the evidence offered to prove a vital fact must do more than create a mere surmise
12
or suspicion of its existence. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63
(Tex. 1983). More than a scintilla of evidence exists when the evidence, as a
whole, rises to a level that would enable reasonable and fair-minded people to
differ in their conclusions. See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497,
499 (Tex. 1995). Conflicting evidence presents a fact question for the jury to
decide. Gunn Infiniti, Inc. v. O’Byrne, 996 S.W.2d 854, 862 (Tex. 1999) (Baker,
J., dissenting); Brown, 685 S.W.2d at 641–42; Phillips Pipeline Co. v. Richardson,
680 S.W.2d 43, 48 (Tex. App.—El Paso 1984, no writ).
The Texas Civil Practice and Remedies Code provides that,
(a) The trier of fact, as to each cause of action asserted, shall
determine the percentage of responsibility, stated in whole
numbers, for the following persons with respect to each
person’s causing or contributing to cause in any way the harm
for which recovery of damages is sought, whether by negligent
act or omission, by any defective or unreasonably dangerous
product, by other conduct or activity that violates an applicable
legal standard, or by any combination of these:
(1) each claimant;
(2) each defendant;
(3) each settling person; and
(4) each responsible third party who has been designated
under Section 33.004.
13
(b) This section does not allow a submission to the jury of a
question regarding conduct by any person without sufficient
evidence to support the submission.
TEX. CIV. PRAC. & REM. CODE ANN. § 33.003 (Vernon 2012) (emphasis added).
A responsible third party is “any person who is alleged to have caused or
contributed to causing in any way the harm for which recovery of damages is
sought, whether by negligent act or omission, by any defective or unreasonably
dangerous product, by other conduct or activity that violates an applicable legal
standard, or by any combination of these.” Id. § 33.011(6) (Vernon 2012).
Therefore, a party is entitled, upon request, to a jury charge that includes a
responsible third party in apportioning responsibility if sufficient evidence supports
its submission. See F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680,
694 (Tex. 2007). Evidence is insufficient to support submission of a jury question
when (1) there is a complete absence of evidence establishing a vital fact, (2) the
court is barred by rules of law or of evidence from giving weight to the only
evidence of a vital fact, (3) the evidence offered to prove a vital fact is no more
than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a
vital fact. See City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005).
Stewart & Stevenson argues that because there is evidence that Apache and
McLemore were negligent in not shutting down Rig 65’s operations before its
collapse, supplying a faulty foundation for Rig 65, and permitting Key Energy to
14
attempt to fix the alignment problems in Rig 65 by tightening the guy wires, there
is more than a scintilla of evidence that Apache and McLemore’s negligence
caused or contributed to the cause of Rig 65’s collapse.
Foret argues that the trial court did not err in not including in its jury charge
Apache and McLemore as responsible third parties because there is no evidence
that Apache, McLemore’s employer, “retained a contractual right of control over
the work performed by subcontractors, including Key [Energy].” In support of its
argument, Foret cites section 95.003 of the Texas Civil Practice and Remedies
Code, which provides:
A property owner is not liable for personal injury, death, or property
damage to a contractor, subcontractor, or an employee of a contractor
or subcontractor who constructs, repairs, renovates, or modifies an
improvement to real property, including personal injury, death, or
property damage arising from the failure to provide a safe workplace
unless:
(1) the property owner exercises or retains some control over
the manner in which the work is performed, other than
the right to order the work to start or stop or to inspect
progress or receive reports; and
(2) the property owner had actual knowledge of the danger
or condition resulting in the personal injury, death, or
property damage and failed to adequately warn.
TEX. CIV. PRAC. & REM. CODE ANN. § 95.003 (Vernon 2012). In response, Stewart
& Stevenson asserts that Foret has waived his argument by not raising it at the trial
court’s charge conference, Louisiana law would apply instead of section 95.003,
15
and a property owner’s liability under section 95.003 is irrelevant to the
designation of Apache and McLemore as a responsible third parties under section
33.003.
Regardless of Chapter 95,3 Chapter 33 requires a responsible third party to
have committed a “negligent act or omission” that “caused or contributed to
causing in any way the harm for which recovery of damages is sought.” TEX. CIV.
PRAC. & REM. CODE ANN. § 33.011(6). And the common law doctrine of
negligence consists of three elements: (1) a legal duty owed by one person to
another; (2) a breach of that duty; and (3) damages proximately resulting from the
breach. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987); Rosas v.
Buddie’s Food Store, 518 S.W.2d 534, 536 (Tex. 1975). The threshold inquiry in a
negligence case is duty. El Chico, 732 S.W.2d at 311. A duty “is a legally
enforceable obligation to comply with a certain standard of conduct.”4 Hand v.
Dean Witter Reynolds Inc., 889 S.W.2d 483, 491 (Tex. App.—Houston [14th
3
We note that Chapter 95 simply served to codify Texas’s common-law approach
to premises-owner liability set out in Redinger v. Living, Inc., 689 S.W.2d 415,
418 (Tex. 1985). See also Johnston v. Oiltanking Hous., L.P., 367 S.W.3d 412,
416 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Chapter 95 further limited
a premises owner’s liability by requiring a plaintiff to prove that the owner had
knowledge of a dangerous condition on the premises, an issue not presented in this
case. See Johnson, 367 S.W.3d at 416.
4
Stewart & Stevenson does not contend that Louisiana law on the issue of duty in
negligence cases is any different than Texas law.
16
Dist.] 1994, writ denied) (citing Way v. Boy Scouts of Am., 856 S.W.2d 230, 233
(Tex. App.—Dallas 1993, writ denied)).
Generally, a premises owner or general contractor does not have a duty to
see that a subcontractor performs work in a safe manner.5 Abarca v. Scott Morgan
Residential, Inc., 305 S.W.3d 110, 126 (Tex. App.—Houston [1st Dist.] 2009, pet.
denied) (citing Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985)).
However, a limited duty arises if a premises owner or general contractor retains
control over a subcontractor’s methods of work or operative details to the point
that the subcontractor is not entirely free to do the work in his own way. Abarca,
305 S.W.3d at 126 (citing Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 154 (Tex.
1999)). The premises owner or general contractor’s “duty of reasonable care is
commensurate with the control it retains” over the subcontractor. Hoechst–
Celanese Corp. v. Mendez, 967 S.W.2d 354, 355 (Tex. 1998) (per curiam).
General supervisory control that does not relate to the activity causing the injury is
not sufficient to create a duty. Abarca, 305 S.W.3d at 126. However, “an
employer who gives on-site orders or provides detailed instructions on the means
or methods to carry out a work order owes the independent contractor employee a
5
A premises owner and a general contractor both owe the same duties to an
independent contractor’s employees; therefore, cases considering these duties are
used interchangeably. Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 n.1 (Tex.
1999) (per curiam).
17
duty of reasonable care to protect him from work-related hazards.” Hoechst–
Celanese, 967 S.W.2d at 357.
“Control can be established in two ways: by (1) a contractual right of control
or (2) an exercise of actual control.” Abarca, 305 S.W.3d at 122 (citing Ellwood
Tex. Forge Corp. v. Jones, 214 S.W.3d 693, 700 (Tex. App.—Houston [14th Dist.]
2007, pet. denied)). To be liable for exercising actual control, a premises owner or
general contractor must have had the right to control the means, methods, or details
of the independent contractor’s work to the extent that the independent contractor
was not entirely free to do the work its own way. Abarca, 305 S.W.3d at 124. The
control must relate to the injury that the negligence causes. Id. It is not enough
that the owner has the right to order the work to stop and start or to inspect
progress or receive reports. Id. Nor is it enough to recommend a safe manner for
the independent contractor’s employees to perform the work. Id.
Stewart & Stevenson first asserts that Apache and McLemore were negligent
in “refus[ing] to shut down the operations when [they] should have,” and it cites a
manual, which was admitted into evidence, entitled, “Recommended Practice for
Use and Procedures for Inspection, Maintenance, and Repair of Drilling and Well
Servicing Structures,” authored by the American Petroleum Institute (“API”).
Among recommended practices, API states,
18
Rig foundations and guywire tensions should be checked daily. The
following conditions are reason to discontinue operations until the
cause of the discrepancy is located and corrected:
a. There is large relative movement between the mast
support structure and the rotary/setback support structure
when the slips are set and the load is removed from the
mast, or vice versa.
b. The empty traveling block does not hang over or near the
well center and/or the mast support structure is not level.
c. The mast support structure or substructure subsides more
on one side than the other with the application of load,
and/or the guywire on one side becomes noticeably
tighter when the tension in the guywire on the opposite
side becomes noticeably less.
Stewart & Stevenson also refers to a University of Texas textbook entitled, “Safety
on the Rig,” which states, “The service companies have their own safety rules that
must be observed by rig employees, but it is the operator’s responsibility to ensure
that the service company’s operations do not endanger the drilling operation or
personnel.” And there is evidence that McLemore had the ability to shut down
operations at the rig if he deemed them unsafe. For example, Robert Duhon,
Apache’s foreman, testified that McLemore, as the “company man,” was expected
to ensure that the project would not proceed “until things [were] safe.”
However, as noted above, the law is clear that the right of a general
contractor or premises owner to order work to start or stop, inspect progress, or
receive reports is insufficient to create a duty under either the common law or
19
Chapter 95. See, e.g., Redinger, 689 S.W.2d 418; Johnston v. Oiltanking Hous.,
L.P., 367 S.W.3d 412, 417, 419 (Tex. App.—Houston [14th Dist.] 2012, no pet.);
see also Yeager v. Drillers, Inc., 930 S.W.2d 112, 115–17 (Tex. App.—Houston
[1st Dist.] 1996, no writ) (holding company man and employer entitled to
summary judgment on independent contractor’s negligent claim where company
man “did not direct [the independent contractor’s] work”). Thus, Apache and
McLemore’s general right to shut down operations at Rig 65 could not have given
rise to a duty, and this cannot constitute a basis for considering them as responsible
third parties. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.003(b).
Stewart & Stevenson next asserts that Apache and McLemore were
negligent in “suppl[ying] a faulty foundation” for Rig 65. Clyde Ned, Key
Energy’s “rig supervisor” at the site, did testify that it was the company man’s
responsibility, “or the company [he was] working for,” to ensure that Rig 65’s
foundation was safe. And there is evidence that the pollution pans sunk, which
possibly contributed to causing Rig 65 to lean. For example, McLemore testified
that he told Garber, Apache’s environmental, health, and safety coordinator, that he
was “having an issue with [the] pollution pans” because “they were sinking.”
However, it is undisputed that another independent contractor, T.K. Stanley, built
the foundation for Rig 65.
20
Furthermore, an independent contractor is generally expected “to take into
account any open and obvious premises defects in deciding how the work should
be done, what equipment to use in doing it, and whether its workers need any
warning.” See, e.g., Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 215–16 (Tex.
2008). As asserted in Stewart & Stevenson’s brief, Key Energy was aware “that
the foundation was sinking, particularly around the pollution pans.” Ned testified
that he noticed “a little sinkage” in the foundation, and Damian McGee, a Key
Energy employee, testified that he had “noticed some sinking where the tubing
pans were.” Duhon testified that she could see the pollution pans sinking “about a
foot,” causing the rig to move “a little bit.” And Mathews testified that he could
also see that the pollution pans were sinking. Finally, Garber testified that
McLemore decided “together” with Joe Vale, Key Energy’s superintendent, to pull
pipes out of the pollution pans in an attempt to remediate the sinking problem.
However, such an awareness and agreement did not give rise to a duty on the part
of Apache and McLemore. See id. And the evidence conclusively establishes that
Apache did not construct the foundation for Rig 65 and any problem with the
foundation sinking was obvious to Key Energy, which was included in the trial
court’s charge as a potentially responsible third party.
Finally, Stewart & Stevenson asserts that Apache and McLemore were
negligent in “lett[ing] Key [Energy] misuse the guy wires in a boneheaded
21
response to the leaning rig.” A general contractor’s right of control must relate to
the injury the negligence causes. Abarca, 305 S.W.3d at 124. To prove that the
general contractor breached an applicable duty of care, a nexus must be shown
between the general contractor’s retained control and the condition or activity that
caused the injury. See Shell Oil Co. v. Khan, 138 S.W.3d 288, 294 (Tex. 2004);
Hoechst-Celanese, 967 S.W.2d at 357; see also Clayton W. Williams, Jr., Inc. v.
Olivo, 952 S.W.2d 523, 528 (Tex. 1997). Stated another way, a general
contractor’s duty is commensurate with the control it retains over the independent
contractor’s work. Hoechst-Celanese, 967 S.W.2d at 357; Mendez, 967 S.W.2d at
357. It is not enough to show that the general contractor controlled one aspect of
the independent contractor’s activities if its employee’s injury arose from another.
Khan, 138 S.W.3d at 294.
Here, although several witnesses testified that it was improper to adjust the
guy wires to correct a rig misalignment, there is no evidence in the record that
Apache and McLemore directed or controlled Key Energy’s use of the guy wires.
Stewart & Stevenson cites us only to Little’s testimony that McLemore “knew
what was going on with regard to this guy wire movement.” However, this
testimony does establish that Apache and McLemore had control over the
“operative details” surrounding Key Energy’s use of the guy wires. See, e.g,
Johnston, 367 S.W.3d at 419–20 (holding employer’s right to control timing and
22
sequence of work had no relation with plaintiff’s injuries); Painter v. Momentum
Energy Corp., 271 S.W.3d 388, 406–07 (Tex. App.—El Paso 2008, pet. denied)
(holding no evidence company man had control over independent contractor’s
activities in removing “rotating head” from rig, which caused plaintiff’s injuries).
In sum, for the trial court to have asked the jury to determine whether
Apache and McLemore were also responsible for Foret’s injuries, there must be
evidence that Apache and McLemore committed a “negligent act or omission” that
“caused or contributed to causing in any way the harm for which recovery of
damages is sought.” TEX. CIV. PRAC. & REM. CODE ANN. § 33.011(6). There is no
evidence in the record that Apache and McLemore breached a duty to Foret by not
stopping operations, by “suppl[ying] a faulty foundation,” or by allowing Key
Energy to misuse the guy wires. Thus, there is no evidence that Apache and
McLemore committed a “negligent act or omission” that caused Foret’s damages.
See El Chico, 732 S.W.2d at 311 (stating that threshold inquiry in any negligence
case is duty). Accordingly, we hold that the trial court did not err in not including
in its jury charge the issue of whether Apache or McLemore were possible
responsible third parties under Chapter 33.
We overrule Stewart & Stevenson’s first issue.
23
Damages
In its second issue, Stewart & Stevenson argues that the jury’s awards of
$5,000,000 for future pain and mental anguish, $1,000,000 for future physical
impairment, and $2,000,000 for future earning capacity are excessive and “far
exceed the norm for this kind of case” because it “does not involve burns, lost
limbs, or the kinds of injuries that often generate very high verdicts.”
Standard of Review
We review a claim that a damages award is excessive for factual sufficiency
of the evidence. See Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex.
1998). When faced with a factual-sufficiency challenge to a jury’s finding, we
must consider and weigh all of the evidence, not just that evidence which supports
the finding. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). Because we are
not a fact finder, we may set aside the finding only if it is so contrary to the
overwhelming weight of the evidence that the finding is clearly wrong and
manifestly unjust. Mar. Overseas Corp., 971 S.W.2d at 407.
Due to the nature of personal injury damages, i.e., because they are
unliquidated and incapable of measurement by any certain standard, a jury has
broad discretion in fixing the amount of the award. See Weidner v. Sanchez, 14
S.W.3d 353, 372 (Tex. App.—Houston [14th Dist.] 2000, no pet.); J.
Wigglesworth Co. v. Peeples, 985 S.W.2d 659, 665–66 (Tex. App.—Fort Worth
24
1999, pet. denied); see also Pittsburgh Corning Corp. v. Walters, 1 S.W.3d 759,
781 (Tex. App.—Corpus Christi 1999, pet. denied) (“[D]eterminations of pain and
suffering damages cannot be neatly confined to mathematical certainties.”).
However, that discretion is limited in that it must enjoy evidentiary support; in
other words, “[j]uries cannot simply pick a number and put it in the blank.” Saenz
v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996).
Future Pain and Mental Anguish
Stewart and Stevenson first asserts that the evidence regarding future mental
anguish is “non-existent” and the evidence regarding future pain is “limited” and
“not nearly enough to justify” the jury’s award of $5,000,000.
To recover damages for mental anguish, a plaintiff must produce direct
evidence of the nature, duration, and severity of the mental anguish, establishing a
substantial disruption in his daily routine. See City of Tyler v. Likes, 962 S.W.2d
489, 495 (Tex. 1997) (quoting Parkway Co. v. Woodruff, 901 S.W.2d 434, 444
(Tex. 1995)); Verinakis v. Med. Profiles, Inc., 987 S.W.2d 90, 95 (Tex. App.—
Houston [14th Dist.] 1998, pet. denied). “As a general rule, evidence to establish
‘adequate details to assess mental anguish claims’ can be demonstrated by ‘the
claimants’ own testimony, that of third parties, or that of experts.’” N.N. v. Inst.
for Rehab. & Research, 234 S.W.3d 1, 9 (Tex. App.—Houston [1st Dist.] 2006, no
pet.) (quoting Parkway, 901 S.W.2d at 444).
25
The presence or absence of pain, either physical or mental, is an inherently
subjective question. HCRA of Tex., Inc. v. Johnston, 178 S.W.3d 861, 871 (Tex.
App.—Fort Worth 2005, no pet.); Dollison v. Hayes, 79 S.W.3d 246, 249 (Tex.
App.—Texarkana 2002, no pet.). No objective measures exist for analyzing pain
and suffering damages. HCRA, 178 S.W.3d at 871; see also Hicks v. Ricardo, 834
S.W.2d 587, 591 (Tex. App.—Houston [1st Dist.] 1992, no writ). Thus, once the
existence of some pain and suffering has been established, there is no objective
way to measure the adequacy of the amount awarded as compensation. HCRA,
178 S.W.3d at 871; Dawson v. Briggs, 107 S.W.3d 739, 751 (Tex. App.—Fort
Worth 2003, no pet.).
Here, in regard to Foret’s mental anguish, Dr. Bradley Bartholomew, a
neurosurgeon who examined and treated Foret, testified that, as a result of falling
from between sixty to eighty feet to the ground, Foret suffered a “closed head
injury” that resulted in “traumatic brain injury.” Testing conducted after the fall
revealed that Foret had performed lower than average in attention concentration
and intellectual, language, memory, and motor functioning. And Bartholomew
described Foret as suffering from permanent “cognitive deficits.” Dr. Richard
Pollock, a neuropsychologist, concluded that Foret had “suffered a significant
brain injury” and was “experiencing a significant depression.” He opined that
Foret “has a cognitive disorder,” meaning that he has “problems with memory and
26
processing information,” and “very significant clinical depression.” Pollock
concluded that these issues would be “permanent and lifelong,” and Foret will
“have to work with those deficits for the rest of his life.”
Foret’s wife, Megan Foret, testified that since his injury, Foret often forgets
where he is going when he is driving, forgets to turn off the stove after cooking,
and cannot bathe his child because he will forget the child is in the bathtub. As a
result, Foret feels like “he’s less than a man” because “he can’t help out as much as
he used to.” She explained that Foret cries “a lot” and the crying “is getting
worse.” Megan did not think it was realistic for them to have a second child
because of the attention she now has to give to her husband. Likewise, Foret
testified that since his injury, he is not “the man that” he “should be” for Megan,
and he suffers from anxiety and depression.
In regard to pain, Dr. Bartholomew testified that Foret suffered from
fractures in his spine and kyphosis, or an abnormal “bending” of the spine that may
“continue to cause pain.” Bartholomew opined that Foret will have “permanent
pain” in his back with permanent restrictions on “repetitive bending, stooping,
crawling, twisting, turning” and picking up objects weighing more than twenty-
five pounds. Foret testified that he still suffers from knee and back pain. And
Bartholomew opined that Foret would need “long-term pain management” for the
rest of his life.
27
From this record, we conclude that Foret presented direct evidence of his
physical pain and mental anguish from which the jury could have reasonably
concluded that he will continue to suffer substantial disruptions in his daily
routine.6 See City of Tyler v. Likes, 962 S.W.2d at 495. Accordingly, we hold that
the jury’s award of $5,000,000 dollars for future pain and mental anguish is not so
contrary to the overwhelming weight of the evidence as to be clearly wrong and
manifestly unjust. See Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.
1998).
Future Physical Impairment
Stewart & Stevenson next argues that because the jury’s award of
$1,000,000 in future physical impairment is excessive, this Court should suggest a
remittitur of 90% of the award.
“Physical impairment, sometimes called loss of enjoyment of life,
encompasses the loss of the injured party’s former lifestyle.” Gen. Motors Corp. v.
Burry, 203 S.W.3d 514, 554 (Tex. App.—Fort Worth 2006, pet. denied); see
6
Stewart & Stevenson cites us to several cases in which plaintiffs received lesser
damage awards, arguing that they demonstrate that the damage awards in this case
are excessive. However, because there is no certain standard by which personal
injury damages can be measured, “each case must stand on its own facts and
circumstances.” See, e.g., Star Hous., Inc. v. Shevack, 886 S.W.2d 414, 421 (Tex.
App.—Houston [1st Dist.] 1994, writ denied). And we note that Stewart &
Stevenson does not challenge the jury’s award of $1,000,000 dollars for two-and-
a-half years of past physical pain and mental suffering; nor does it challenge the
testimony of Doctors Bartholomew and Pollock, who opined that Foret will have
“permanent” and “lifelong” issues as a result of his injuries.
28
Doctor v. Pardue, 186 S.W.3d 4, 18 (Tex. App.—Houston [1st Dist.] 2005, pet.
denied) (quoting Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 772
(Tex. 2003)). A plaintiff generally must show that his physical-impairment
damages are substantial and extend beyond any pain, suffering, mental anguish,
lost wages or diminished earning capacity. Burry, 203 S.W.3d at 555; see Golden
Eagle Archery, Inc., 116 S.W.3d at 772 (indicating that “it would be appropriate to
advise the jury [by instruction] that it may consider as a factor loss of enjoyment of
life. But the jury should be instructed that the effect of any physical impairment
must be substantial and extend beyond any pain, suffering, mental anguish, lost
wages or diminished earning capacity and that a claimant should not be
compensated more than once for the same elements of loss or injury.”).
Here, Megan testified that Foret was one of the most “lively people” she had
known before his injuries, and he spent his spare time hunting, fishing, and helping
his father repair their cars and homes. She noted that after he sustained his
injuries, she sees Foret cry “because of all things that he used to be able to do that
he can’t do now, such as helping his dad.” Foret was “very independent” before
his injuries but now she has “to do everything” for him. Foret testified that
because of his chronic back pain, he is no longer “physically able to do the kinds of
things” that he did prior to being injured. Specifically, Foret can no longer go deer
hunting or work on cars with his father. And he can only play with his son for
29
short periods of time before his back begins to hurt. Foret is also unable to hold
his son for longer than five or ten minutes, and, as his son grows, Foret will no
longer be able to hold him at all.
From this evidence, the jury could have reasonably concluded that Foret
would suffer a substantial loss of enjoyment of life and loss of his former lifestyle.
See, e.g., Figueroa v. Davis, 318 S.W.3d 53, 64–65 (Tex. App.—Houston [1st
Dist.] 2010, no pet.) (upholding award for past and future physical impairment for
plaintiff with dental injuries because he subsequently had to limit number and
types of food he ate and “could not eat some of the foods that he loved” for several
years); Burry, 203 S.W.3d at 549–55 (upholding $3,500,000 award for future
physical impairment for mother who suffered brain damage and could no longer
read to her children, drive a car, or live without supervision); see also Marquette
Transp. Co. Gulf-Inland, LLC v. Jackson, No. 01-10-01025-CV, 2012 WL
1454476, at *13–14 (Tex. App.—Houston [1st Dist.] Apr. 26, 2012, no pet.) (not
designated for publication) (holding evidence plaintiff “permanently limited” and
no longer “able to participate in the same activities that he pursued before he was
injured, including everything from standing in order to cook and clean to playing
basketball” sufficient to support jury’s award of $500,000 for future physical
impairment). Accordingly, we hold that the jury’s award of $1,000,000 for future
30
physical impairment is not so contrary to the overwhelming weight of the evidence
as to be clearly wrong and manifestly unjust.
Future Earning Capacity
Finally, Stewart & Stevenson asserts that the jury’s award of $2,000,000 in
future earning capacity is excessive.
Lost earning capacity is an assessment of a plaintiff’s capacity to earn a
livelihood prior to injury and the extent to which that capacity is impaired by the
injury. Scott’s Marina at Lake Grapevine, Ltd. v. Brown, 365 S.W.3d 146, 158–59
(Tex. App.—Amarillo 2012, pet. denied). Lost earning capacity is not measured
by what a person actually earned before an injury, but by the person’s capacity to
earn, even if he had never worked in that capacity in the past. Id.; Gen. Motors
Corp. v. Burry, 203 S.W.3d 514, 553 (Tex. App.—Fort Worth 2006, pet. denied).
Proof of loss of earning capacity is always uncertain and is left largely to the
discretion of the jury. Rigdon Marine Corp. v. Roberts, 270 S.W.3d 220, 232
(Tex. App.—Texarkana 2008, pet. denied). Nevertheless, to support an award of
damages for lost earning capacity, a plaintiff must present evidence sufficient to
permit a jury to reasonably measure earning capacity in monetary terms. Tagle v.
Galvan, 155 S.W.3d 510, 519–20 (Tex. App.—San Antonio 2004, no pet.);
Durham Transp. Co., v. Beettner, 201 S.W.3d 859, 864 (Tex. App.—Waco 2006,
pet. denied). Non-exclusive factors that may be considered in determining lost
31
earning capacity include evidence of past earnings and the plaintiff’s stamina,
efficiency, ability to work with pain, and work-life expectancy. Big Bird Tree
Servs. v. Gallegos, 365 S.W.3d 173, 178 (Tex. App.—Dallas 2012, pet. denied);
Tagle, 155 S.W.3d at 519.
Thomas Mayor, an economist, testified that he reviewed Foret’s tax returns,
his employment and payroll records, and “a whole host of these general statistical
studies.” Mayor interviewed Foret and noted that he “was very young” and “was
really on track to be a high income earner for someone with his education and at
his age.” In his expert report, entered into evidence, Mayor opined that Foret
would lose $1,725,068 in future earning capacity, without taking into account lost
career advancement, which would total $2,587,602 in future earning capacity. He
further explained that “if the medical evidence indicates that he will be able to
return to work and earn some percentage of his former pay, then that percentage
should be subtracted in order to arrive at the appropriate mitigated loss.” In the
case that Foret could “work in a light duty capacity,” Mayor opined that he would
lose $1,069,542, without considering career advancement, and $1,940,702 when
considering career advancement.
Stewart & Stevenson asserts that Mayor’s conclusions “rested on the critical
assumption that [Foret] flatly cannot work again” and such evidence “is so weak as
to make the damage award clearly wrong and unjust.” However, as noted in his
32
report, Mayor calculated a loss in future earning capacity of $1,940,702, taking
into account the possibility of future employment, a calculation not far from the
jury’s award of $2,000,000 dollars. Furthermore, there is evidence in the record
that Foret may be unemployable for the rest of his life. Dr. Bartholomew noted,
The problem is he can’t do physical labor anymore because of his
spine injuries, so that would have to put him in more of a desk-type
job. And I don’t see how, with cognitive deficits, he’s going to be
able to get gainful employment with these deficits. So the answer is
no, I don’t see him being employable.”
Likewise, Dr. Pollock opined that “the odds are against” Foret finding competitive
employment again.
Furthermore, Viola Lopez, a vocational rehabilitation expert, testified that
she performed a “vocational assessment” of Foret. She concluded that because of
Foret’s “chronic pain,” the “restrictions [doctors] have placed on him,” and “the
neuro cognitive problems of even day-to-day activities,” she did not believe Foret
would be able to find “competitive employment.” She also noted that Foret had
“never done light work, work in an office or clerical.” Thus, she did not think it
was “reasonable to think he can do that.”
From this evidence, we cannot conclude that the jury’s award of $2,000,000
for loss of future earning capacity is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and manifestly unjust. Accordingly, we hold that
33
the evidence is factually sufficient to support the jury’s award of $2,000,000 for
loss of future earning capacity.
Stewart & Stevenson also argues that the jury’s awards of future damages
are “overlapping” because “all his future damages stem from the physical and
emotional pain that will curtail his work and personal life in the future to some
extent.” However, as established above, factually-sufficient evidence supports the
jury’s awards individually for future pain and mental anguish, future physical
impairment, and loss of future earning capacity. Accordingly, we further hold that
the evidence is factually sufficient to support the jury’s entire $8,000,000 dollar
award for future damages.
We overrule Stewart & Stevenson’s second issue.
Late-Filed Discovery
In its third issue, Stewart & Stevenson argues that the trial court erred in
admitting into evidence Foret’s late-filed discovery responses, namely, the life care
plan by Terry Arnold, and medical information supplied by Dr. Paul Hubbell, a
pain management specialist. Stewart & Stevenson asserts that Arnold’s life care
plan “unexpectedly injected about $680,000 in future economic damages that Foret
had never requested before.”
When a party has not timely made, amended, or supplemented a discovery
response, the party may not introduce into evidence the material or information
34
that was not timely disclosed unless the court finds that there was good cause for
the failure to timely make the discovery response or the failure to timely make the
discovery response will not unfairly surprise or unfairly prejudice the other parties.
TEX. R. CIV. P. 193.6(a). A disclosure is presumed to be untimely if it was made
less than thirty days before trial. Id. 193.5(b). The party seeking to introduce the
evidence has the burden of establishing good cause or the lack of unfair surprise or
prejudice. Id. 193.6(b). And the trial court has discretion to determine whether the
party has met this burden. Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914
(Tex. 1992); Dolenz v. State Bar of Tex., 72 S.W.3d 385, 387 (Tex. App.—Dallas
2001, no pet.).
Here, on July 11, 2011, Stewart & Stevenson filed a “Motion to Strike
[Foret’s] Late-Filed Discovery,” in which it asserted that Foret had produced to
Stewart & Stevenson, after the July 1, 2011 discovery deadline, among other
evidence, Hubbell’s expert report on July 7, 2011 and Arnold’s life care
management plan on July 11, 2011. In Arnold’s “Life Care Plan,” she estimated
that Foret would incur $679,296 in future medical and related needs. Stewart &
Stevenson alleged that the expert report was based, in part, on the late-filed
medical report from Dr. Hubbell, who had estimated that Foret required $259,710
in pain management treatment. In his response to Stewart & Stevenson’s motion,
Foret argued that Stewart & Stevenson was not unfairly prejudiced by the late
35
production of Hubbell’s report because he was timely designated as an expert and
his medical records were produced upon receipt. In regard to Arnold’s report,
Foret asserted that he timely designated Arnold and Stewart & Stevenson had
Arnold’s report when it deposed her on July 12, 2011.
Stewart & Stevenson argues that it was “deliberately shortchange[ed]” in its
ability to adequately depose Dr. Hubbell and Arnold concerning the substance of
their reports. However, we note that on July 13, 2011, two days after it had filed
its motion to strike, and one day after it had deposed Arnold, Stewart & Stevenson
filed a “Motion to Assign This Case to the Jury Docket, or, In the Alternative,
Motion for Continuance.” In that motion, Stewart & Stevenson asked the trial
court to set the jury trial start on July 18, 2011. In the alternative, Stewart &
Stevenson requested a continuance only if the trial court denied its “request to have
[the] matter set on the jury docket for the two-week period July 18, 2011 – July 29,
2011.” On July 19, 2011, in response to Foret’s motion to strike its motion for
continuance, Stewart & Stevenson again asserted that it “seeks to maintain the
current jury trial.” Only in the alternative to the trial court’s denial of its motion to
assign the case did Stewart & Stevenson assert a “need for additional discovery”
due to Foret’s “barrage of late-filed discovery.”
Here, Stewart & Stevenson was able to depose Arnold after receiving her
report, Foret produced Dr. Hubbell’s report as soon as it became available, and,
36
most importantly, Stewart & Stevenson repeatedly insisted on going to trial on July
18. Thus, the trial court could have reasonably concluded that Stewart &
Stevenson was not unfairly prejudiced by the late production of Arnold’s and
Hubbell’s reports. See, e.g., Wigfall v. Tex. Dep’t of Criminal Justice, 137 S.W.3d
268, 274 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (holding that trial court
did not abuse its discretion in not excluding late-designated expert witnesses where
movant did not request continuance or show how “delay left him unable to conduct
his own discovery”). Accordingly, we hold that the trial court did not err in
admitting the reports into evidence.
We overrule Stewart & Stevenson’s third issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Brown, and Huddle.
37