Stewart & Stevenson, LLC v. Brady Foret

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