COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00250-CV
BNSF RAILWAY COMPANY APPELLANT
V.
JAMES E. PHILLIPS APPELLEE
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FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY
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OPINION ON REHEARING
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Upon consideration of Appellant BNSF Railway Company’s motions for
rehearing and reconsideration en banc, Appellee James E. Phillips’s response, and
BNSF’s reply, this court denies the motion for reconsideration en banc in a separate
order today, and we deny the motion for rehearing. However, we withdraw our prior
opinions and judgment of August 1, 2013 and substitute the following.
BNSF appeals from the trial court’s judgment following a jury verdict awarding
Phillips $1,901,820.85 in damages and court costs on his claims for negligence
under the Federal Employers Liability Act (FELA) and for violation of the Locomotive
Inspection Act (LIA). In six issues, BNSF challenges the sufficiency of the evidence
to support the jury’s verdict, the trial court’s exclusion of evidence proffered by
BNSF, and the jury charge. Because we hold that (1) the evidence is legally
sufficient to support the verdict; (2) the trial court did not abuse its discretion by
excluding BNSF’s geometry car video, evidence of the absence of the train seats’
negative effects on Phillips’s coworkers, and general evidence that genetics and
heredity can play a role in degenerative spinal conditions; and (3) the trial court did
not abuse its discretion in charging the jury, we affirm the trial court’s judgment.
I. Background Facts
Phillips began working for BNSF’s predecessor, Atchison, Topeka and Santa
Fe Railway, in 1974. At some point, that railway merged with Burlington Northern
Railway Company and became BNSF. Phillips continued his employment with
BNSF until he resigned in 2005 after a neurologist advised him that he could no
longer tolerate the work because of the deterioration of his spinal health.
Phillips sued BNSF on April 13, 2007, asserting that BNSF was negligent
under FELA and that it had violated provisions of LIA. Phillips alleged that he had
“injur[ies] to his back, neck, legs, shoulders, arms[,] and other body parts.” He
further alleged that these injuries had been caused by his subjection to “jolts,
shocks, vibrations, and cumulative trauma . . . due to defective equipment,
including . . . rough riding locomotives, locomotive cab seats that failed to protect
2
[him] from long-term exposure to vibratory forces, and poorly maintained
equipment.” The jury found
• that BNSF was negligent and that the negligence was the cause of
Phillips’s injuries;
• that BNSF violated LIA “and/or one or more of the Federal regulations
in one or more of the ways alleged by” Phillips;
• that BNSF’s violations of federal law were a cause of Phillips’s injuries;
and
• that Phillips’s damages were $1,900,000.00.
The jury also answered “no” to question six, which addressed the three-year
limitations period. The trial court rendered a judgment in accordance with the jury’s
verdict, awarding Phillips damages plus costs for a total recovery of $1,901,820.85.
II. Three-Year Limitations Period
In its first issue, BNSF argues that the evidence is legally insufficient to
support the jury’s finding that Phillips filed his FELA claims within three years from
the day his cause of action accrued and asserts instead that the evidence
conclusively establishes that Phillips did not file his FELA claims within the required
time period.
A. Legal Sufficiency Standard of Review
We may sustain a legal sufficiency challenge only when (1) the record
discloses a complete absence of evidence of a vital fact; (2) the court is barred by
rules of law or of evidence from giving weight to the only evidence offered to prove a
vital fact; (3) the evidence offered to prove a vital fact is no more than a mere
3
scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. 1 In
determining whether there is legally sufficient evidence to support the finding under
review, we must consider evidence favorable to the finding if a reasonable factfinder
could and disregard evidence contrary to the finding unless a reasonable factfinder
could not. 2
Anything more than a scintilla of evidence is legally sufficient to support the
finding. 3 More than a scintilla of evidence exists if the evidence furnishes some
reasonable basis for differing conclusions by reasonable minds about the existence
of a vital fact. 4 Any ultimate fact may be proved by circumstantial evidence. 5 A fact
is established by circumstantial evidence when the fact may be fairly and reasonably
inferred from other facts proved in the case. 6 However, to withstand a legal
sufficiency challenge, circumstantial evidence still must consist of more than a
1
Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),
cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and
“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960).
2
Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007);
City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).
3
Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996);
Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996).
4
Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002).
5
Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993).
6
Id.
4
scintilla. 7
B. Substantive Law
In 1992, we held,
The limitations period under FELA is three years from the day
the cause of action accrued. In a FELA action, compliance with the
statute of limitations is a condition precedent to recovery rather than an
affirmative defense. The burden is upon the claimant to allege and
prove that he filed suit within the three-year period.
In cases of latent injury, the United States Supreme Court has
applied the discovery rule to determine when a cause of action
accrues. A claimant should reasonably know of his injury when he
possesses critical facts of such injury. Moreover, an awareness of
critical facts will impose a duty upon a claimant to investigate and
confirm or deny his belief, otherwise the limitations period would be
meaningless.
The Kubrick court held, for limitations purposes, a cause of
action accrues when a claimant discovers both his injury and its
underlying cause; however, it is not necessary the claimant know the
defendant is blameworthy. . . . The DuBose court interpreted the
Kubrick test to implicitly mean a claim accrues when the claimant
should reasonably have been aware of the critical facts of injury and
causation.
A critical fact causing a claim to accrue can be an event that
should put a claimant on notice to check for injury, even if the event
results in only minor physical effects. Although the injury may turn out
to be more serious than originally thought, the cause of action will
nevertheless accrue on the date that a claimant realizes he has
sustained harm.
....
Applying the standard to this case, Billman’s cause of action
accrued and limitations began running when he knew that he had
7
Blount v. Bordens, Inc., 910 S.W.2d 931, 933 (Tex. 1995).
5
suffered a hearing loss which was job related. Because the summary
judgment proof is conclusive that he knew he had suffered a job-related
hearing loss more than three years before suing MOPAC, Billman’s
action for that injury is barred by limitations. 8
C. Analysis
We must therefore decide whether the evidence is legally sufficient to show
that Phillips’s claims accrued no earlier than April 13, 2004. In his petition filed April
13, 2007, Phillips alleged
[t]hat over the course of his career working for . . . BNSF, [he] was
subjected to jolts, shocks, vibrations, and cumulative trauma causing
injury to his back, neck, legs, shoulders, arms and other body parts due
to defective equipment, including but not limited to, rough riding
locomotives, locomotive cab seats that failed to protect [him] from long-
term exposure to vibratory forces, and poorly maintained equipment.
On April 8, 1998, Phillips filled out a medical form for a chiropractor
complaining of soreness and “[te]nderness up and down [his] spine.” He stated that
the condition had appeared on April 5, 1998, and recurred “[e]very few months,” that
it did not get progressively worse, and that he had seen other doctors for it. Phillips
stated that “rough riding railroad engines” aggravated his condition, but he also
stated that his condition was not due to injury or illness arising out of his
employment and that he had not missed any work as a result of his condition.
Phillips further stated that he had suffered at some point in the past low back pain,
neck pain or stiffness, tingling in his hands, legs, and feet, and cramps or backache.
8
Billman v. Mo. Pac. R.R. Co., 825 S.W.2d 525, 526–28 (Tex. App.—Fort
Worth 1992, writ denied) (emphasis added) (citations omitted).
6
The chiropractor noted that Phillips had suffered from “chronic back pain for years”
and that his symptoms were “constant in any position” that he was in “when awake.”
In August 2003, the chiropractor ordered an MRI to investigate the cause of
Phillips’s continued symptoms, including “back pain” and “pain down [the] left leg to
the left foot.” The resulting radiologist consultation report indicated that Phillips had
spondylolysis, minor bulging, and intravertebral hemangiomas.
In June 2004, Phillips complained of chronic back spasms and tingling in his
fingertips and also reported that “his left foot fe[lt] like ice water.” The doctor
appeared to connect Phillips’s symptoms to his diabetes. Phillips’s work was not
listed as a cause of any symptoms. The doctor found no gross musculoskeletal
abnormalities on inspection, stating that Phillips had a normal gait and no joint
swelling or effusion. Approximately one year later, Phillips experienced some
numbness and “tingleness” in his fingertips and foot and was referred to a
neurologist. Ultimately, in 2005, Phillips was finally “properly diagnosed.” The
neurologist told Phillips that he “had climbed up the last ladder of a locomotive as of
that day.” Phillips testified that he was overwhelmed. He elaborated,
Well, I was not expecting such a hard hit of news. And I knew
my career was over and—but I remained optimistic. I thought, Well, I
can get a surgery done and possibly go back to work. I really didn’t—it
really didn’t soak in what he—what he said. So I thought, Well, my life
has taken a hard right turn. As I went on down that road, I realized that
I was immediately—my life was immediately put in reverse and has
remained there.
When asked to pinpoint the “very first time that [he] understood that [his]
spinal condition was in fact caused by [his] work,” Phillips testified,
7
I would have to say that it was prior to—to 2005, possibly, somewhere
in there. But I worked and mowed my yard. And I was at work a lot
more on locomotives than I was anywhere else. So I realized that that
seemed to be where my tenderness and soreness came from.
Phillips testified that “[b]ack in 1998 or 1999 or the early 2000s,” he did not
know anything about “whole-body vibration” and that he had not been informed by
the railroad about any of the scientific literature on the subject. In contrast, his
fellow union member, Buddy Blue, testified that members of their union had “been
maybe aware” that full body vibration can injure engineers “in the last ten years.”
Phillips also testified that his “family had always gone to a chiropractor[,] [n]ot
on a regular basis, but as needed.” He told the chiropractor that he was a
locomotive engineer who rode on rough riding engines. Phillips further testified that
the chiropractor’s treatments, which he described as about twenty minutes of heat
packs followed by adjustments and which he likened to massages, made him feel
better and helped his symptoms go away. Phillips testified that he saw the
chiropractor from 1998 until 2005 when the neurologist diagnosed him with a spinal
condition.
In a footnote to Billman, we noted that “[h]ad Billman, in his deposition or
affidavit[,] denied rather than admitted that he associated his hearing loss with the
loud noises at work, his testimony would be evidence raising a fact issue that
precluded summary judgment.” 9 We therefore reject BNSF’s argument that
9
Id. at 528 n.3; see also Hassell v. Mo. Pac. R.R., 880 S.W.2d 39, 44 (Tex.
App.—Tyler 1994, writ denied).
8
“Phillips’s self-serving testimony cannot overcome the conclusive contrary evidence
produced by BNSF.” Further, Phillips’s evidence does not need to overcome
BNSF’s evidence; it merely needs to amount to more than a scintilla. 10 Viewing the
evidence in the light most favorable to the jury’s verdict, there is some evidence that
(1) Phillips, whose family had always seen chiropractors routinely as needed,
suffered intermittent back pain that adjustments relieved and experienced tingling
and numbness that was initially attributed by doctors to his diabetes, (2) the railroad
had not made him aware of the risks of full body vibration and he had no awareness
of the risks “back in 1998 or 1999 or the early 2000s,” and (3) he reasonably did not
realize that his job caused his debilitating injuries until on or after April 13, 2004.
Because there is some evidence to support the jury’s finding that Phillips filed his
FELA claims within three years from the day his cause of action accrued, we
overrule BNSF’s first issue.
D. Related Jury Charge Issues
BNSF argues alternatively in its second issue that the trial court erred by
refusing (1) to fully instruct the jury regarding Phillips’s burden to prove that he filed
his FELA claims within three years from the day his cause of action accrued, (2) to
place the limitations question first in the jury charge, and (3) to condition the jury’s
consideration of other questions on an affirmative answer to the limitations question.
10
See Cazarez, 937 S.W.2d at 450; Leitch v. Hornsby, 935 S.W.2d 114, 118
(Tex. 1996).
9
As the Supreme Court of Texas explained in 2002, in a FELA case, as in
other civil cases,
[a] trial court must submit such instructions and definitions as shall be
proper to enable the jury to render a verdict. A party is entitled to a jury
question, instruction, or definition if the pleadings and evidence raise
an issue. An instruction is proper if it (1) assists the jury, (2) accurately
states the law, and (3) finds support in the pleadings and evidence.
Failure to submit an instruction shall not be deemed a ground for
reversal of the judgment unless a substantially correct instruction has
been requested in writing and tendered by the party complaining of the
judgment. A trial court’s error in refusing an instruction is reversible if it
probably caused the rendition of an improper judgment. 11
And, as this court discussed in a FELA case in 2011,
We review a trial court’s refusal to include an instruction in the jury
charge for an abuse of discretion. The trial court has considerable
discretion to determine necessary and proper jury instructions. To
establish an abuse of discretion, the requested instruction must be
necessary to enable the jury to render a proper verdict so that the trial
court’s refusal probably caused the rendition of an improper verdict.
When a trial court refuses a requested jury instruction, we examine
whether the instruction was reasonably necessary to enable the jury to
render a proper verdict. Because the jury should not be burdened with
surplus instructions, not every correct statement of the law belongs in
the jury charge. 12
The last question of the jury charge, Question No. 6, addresses the limitations
issues. It reads,
11
Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002) (citations
and internal quotation marks omitted).
12
Neloms v. BNSF Ry. Co., No. 02-09-00281-CV, 2011 WL 944434, at *1
(Tex. App.—Fort Worth, Mar. 17, 2011, no pet.) (mem. op.) (citations and internal
quotation marks omitted).
10
Concerning Plaintiff James E. Phillips’ claims in this case, did he
know, or should he have known, before April 13, 2004 of both the
alleged injury and its cause?
Plaintiff James E. Phillips has the burden of proof to show that
he did not know before April 13, 2004 of both the alleged injury
and its cause.
Answer “Yes” or “No[.]” [Emphasis added.]
BNSF complains that the trial court gave only the first sentence of its proposed
instruction to the jury. In addition to the italicized instruction noted above, BNSF
proposed the following instructions for Question No. 6:
It is not necessary that James E. Phillips believed that he had a
right to pursue a claim against BNSF Railway Company because of the
alleged injury. All that is required is that James E. Phillips had
knowledge of the alleged injury and knowledge of the cause of that
injury. Thus, all that is required is whether James E. Phillips
possessed sufficient critical facts from which the alleged injury and its
cause, including work-relatedness, should be plainly known. It is also
not required that the full extent of the alleged injury be known.
BNSF’s entire proposed instruction was taken from the Texas Pattern Jury
Charge for DTPA claims. 13 BNSF argues that the jury needed the entire proposed
instruction
to clarify that “knowledge” in this context means possession of
sufficient critical facts—not a full and complete understanding. Without
the full instruction, the jury did not understand that once Phillips
possessed sufficient critical facts concerning his injury and its cause,
he had a duty to “investigate and confirm or deny his belief,” which
triggered the FELA’s three-year time period within which Phillips had to
file his claim. Thus, the jury received inadequate instruction on a
13
See Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury
Charges: Business, Consumer, Employment PJC 102.23 (2008).
11
critical, threshold question.
Phillips argues that the proposed instruction would have been repetitive and
redundant. We hold that the question as given properly addressed both Phillips’s
actual knowledge and his duty to inquire by using the “did he know, or should he
have known” phraseology, 14 and we further hold that the instruction properly placed
the burden of proof on Phillips. Consequently, while BNSF’s proposed instruction
might have been helpful, we cannot conclude that it was “necessary to enable the
jury to render a proper verdict so that the trial court’s refusal probably caused the
rendition of an improper verdict.” 15 We overrule BNSF’s first subissue of its second
issue.
In the remainder of its second issue, BNSF contends that the trial court erred
by failing to place the limitations question first in the jury charge and by failing to
make the jury’s consideration of the other questions conditional on an answer to the
limitations question in Phillips’s favor. Even if the trial court did err by not placing
the limitations question first in the charge and by not conditioning the jury’s
consideration of the remaining questions on an answer to the limitations question in
14
See DuBose v. Kansas City So. Ry. Co., 729 F.2d 1026, 1030–31 (5th Cir.)
(“The Kubrick rule, we think, represents the Court’s latest definition of the discovery
rule and should be applied in federal cases whenever a plaintiff is not aware of and
has no reasonable opportunity to discover the critical facts of his injury and its
cause.”), cert. denied, 469 U.S. 854 (1984).
15
See Neloms, 2011 WL 944434, at *1; see also Tex. R. App. P. 44.1(a).
12
Phillips’s favor, we cannot say that BNSF has shown harm. 16 That is, we have
already held that legally sufficient evidence supports the jury’s finding that Phillips
filed his FELA claims within three years from the day his cause of action accrued.
BNSF therefore can show no harm in either the sequencing of the questions or the
absence of language making the jury’s consideration of the remaining questions
conditional on their answering the limitations question in Phillips’s favor. 17 We
overrule the remainder of BNSF’s second issue.
III. Sufficiency of Causation Evidence
In its third issue, BNSF contends that the testimony of Phillips’s experts Drs.
Eckardt Johanning and Tyler Kress is unreliable and therefore legally insufficient to
support causation.
A. Reliability
BNSF moved to exclude the expert testimony of Johanning on the basis that
his opinion on causation lacked reliable foundation data. BNSF asserted that
Johanning had inspected only one locomotive riding on a portion of the track that
Phillips rode on and that Johanning “[could] not know the levels of vibration [Phillips]
may or may not have been exposed [to], nor [could] he identify a dose/response
threshold beyond which vibration will cause injury.” BNSF also objected that
16
See Tex. R. App. P. 44.1(a).
17
See Thanedar v. Donna Indep. Sch. Dist., No. 13-09-00589-CV, 2011 WL
3631954, at *8 (Tex. App.—Corpus Christi Aug. 18, 2011, pet. denied) (mem. op.);
see also Tex. R. App. 44.1(a).
13
Johanning’s opinions as to the cause of Phillips’s “shoulder injury and the practice of
getting on and off moving equipment [were] unsupported by any scientific basis and
[were] unsupported by any data or references in his Expert Report.”
BNSF likewise filed a motion to exclude the testimony of Kress, who has a
Ph.D. in engineering with a focus on human factors in ergonomics. BNSF objected
to his testimony on the grounds that Kress’s “opinions regarding causation are not
reliable and are not supported by any underlying facts or data.” BNSF contended
that there was no evidence that Phillips had exposures similar to those in
epidemiological studies and reports on which Kress based his opinions and that
Kress’s opinions were “mere conclusions and speculation.” BNSF preserved its
legal sufficiency challenge in its motion for judgment notwithstanding the verdict. 18
We therefore reject Phillips’s contentions that BNSF failed to preserve error on its
reliability complaints.
As the Supreme Court of Texas has made clear, “a no-evidence review
encompasses the entire record, including contrary evidence tending to show the
expert opinion is incompetent or unreliable.” 19 And, as we explained in a recent
FELA case, even though Phillips’s claims are pursuant to federal statutes,
the trial court must follow state procedure in determining the reliability
of expert testimony. To be admissible into evidence, an expert
18
See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220–21
(Tex. 1992).
19
Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex. 2009).
14
witness’s testimony must, among other things, be reliable. The expert
must be qualified, and the testimony must be relevant and be based on
a reliable foundation. Expert testimony is unreliable if (1) it is not
grounded in the methods and procedures of science and is thus no
more than subjective belief or unsupported speculation, or (2) there is
too great an analytical gap between the data upon which the expert
relies and the opinion he offers. The purpose of the reliability
determination is not to decide whether the expert’s conclusions are
correct, but only whether the analysis used to reach them is reliable. 20
1. Reliability of Johanning’s Testimony
BNSF contends that because none of the epidemiological studies that
Johanning relied on to show that exposure to vibration can cause injury were
admitted into evidence, there is no basis on which to determine their reliability. But
BNSF cites no authority requiring that the studies be admitted into evidence; it is the
trial court who determines reliability, not the jury. 21 We therefore reject this
argument.
BNSF further argues that Johanning’s testimony is insufficient to show that the
vibration to which Phillips was exposed caused his injuries and that the testimony is
therefore unreliable. Specifically, BNSF argues that Johanning failed to prove that
Phillips was exposed to levels greater than or comparable to those that people in the
studies were exposed to because Johanning admitted that there is no known dose
or exposure level at which injury results. BNSF and the dissent both rely on toxic
20
BNSF Ry. Co. v. Nichols, 379 S.W.3d 378, 382 (Tex. App.—Fort Worth
2012, pet. denied) (citations omitted).
21
See E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 556
(Tex. 1995).
15
tort law, that is, cases involving injuries allegedly caused by a person’s exposure to
substances, in stating their proposition. But neither BNSF nor the dissent directs us
to a case applying that law to a whole body vibration case, nor are we prepared to
do so. 22 We therefore reject this argument.
BNSF further contends that Johanning’s own testing is no evidence to
establish that Phillips was exposed to unsafe levels of vibration and that it is
therefore unreliable. Johanning reviewed the following pleadings, documents, and
legal records:
(1) [Phillips’s] Petition;
(2) BNSF’s Answer, Affirmative Defenses and Demand for Jury
Trial;
(3) [Phillips]’s Answers to [BNSF]’s Interrogatories;
(4) [Phillips]’s Responses to [BNSF]’s First Request for Production
of Documents;
(5) BNSF’s Answers to [Phillips]’s First Set of Interrogatories;
(6) BNSF’s Responses to [Phillips]’s First Request for Production of
Documents;
(7) Transcript from James E. Phillips’[s] August 8, 2008 deposition;
22
See Hardyman v. Norfolk W. Ry. Co., 243 F.3d 255, 265 (6th Cir. 2001) (“[I]t
makes little sense to require a plaintiff to establish a dose/response relationship or
threshold level in a situation where there has been no scientific study conducted
specifically on railroad brakemen and where the dose/response relationship or
threshold level will always vary from individual to individual. Such a requirement
essentially would foreclose plaintiffs from recovering . . . against negligent
employers unless their particular job has been the subject of a national,
epidemiological study . . . .”).
16
(8) Mr. Phillips’[s] X-rays, MRI’s, CT’s[,] and reports from May 25,
2005 through March 3, 2008;
(9) CD containing Exhibits #1 through #227 regarding cumulative
trauma, repetitive stress and locomotive ride quality;
(10) Topical Index to Exhibits #1 through #227; and
(11) Mr. Phillips’s medical records.
Johanning also performed a clinical examination of Phillips, ordered lab
testing and reviewed the results, and performed a differential diagnostic medical
evaluation of him. As explained by our sister court,
Differential diagnosis, or differential etiology, is a standard scientific
technique of identifying the cause of a medical problem by eliminating
the likely causes until the most probable one is isolated. A reliable
differential diagnosis typically, though not invariably, is performed after
physical examinations, the taking of medical histories, and the review
of clinical tests, including laboratory tests, and generally is
accomplished by determining the possible causes for the patient’s
symptoms and then eliminating each of these potential causes until
reaching one that cannot be ruled out or determining which of those
that cannot be excluded is the most likely. This technique has
widespread acceptance in the medical community, has been subject to
peer review, and does not frequently lead to incorrect results. 23
Johanning further inspected the locomotive ride quality and cab seat of a
BNSF train traveling between Belen, New Mexico and Clovis, New Mexico, the
same route Phillips traveled when he last worked. During the inspection, Johanning
“obtained representative whole-body vibration (WBV) exposure data and body
posture assessment for the operator sitting in the engineer’s seat in accordance with
23
Praytor v. Ford Motor Co., 97 S.W.3d 237, 245 (Tex. App.—Houston [14th
Dist.] 2002, no pet.) (citations and internal quotation marks omitted).
17
current applicable technical standards and guidelines (i.e., ISO 2631-1; 1997, etc.)
in order to assess occupational WBV exposure and potential health risks.” During
the inspection, Johanning also evaluated the tested locomotive cab seat for
“ergonomic features such as adjustability, posture[,] and suspension quality.”
Johanning obtained the WBV exposure measurements, assessed the
operator’s body posture, and evaluated the cab seat in accordance with
internationally-accepted professional and scientific guidelines. The WBV study that
Johanning prepared provides a detailed description of the data he obtained and the
conclusions he reached, and it was submitted to the trial court as an exhibit to
BNSF’s motion to exclude Johanning’s expert testimony. Likewise, Johanning’s
clinical medical report containing the differential diagnostic evaluation was also
attached to BNSF’s motion. Thus, Johanning’s medical report on Phillips and the
WBV locomotive study were before the trial court when it made its reliability
determination. Based on all the above, we cannot say that Johanning’s locomotive
and cab seat inspection and test coupled with his examination and evaluation of
Phillips yielded unreliable evidence.
BNSF also argues that Johanning failed to consider other potential causes
and had no articulated basis for ruling out other causes of Phillips’s injury. Though
BNSF briefly mentions hypertension and diverticulitis in its brief, the alleged
potential causes actually discussed by BNSF in any detail in its brief are genetics,
diabetes, obesity, and spinal slippage, or spondylosis. We will likewise concentrate
our discussion on those four alleged potential causes.
18
BNSF relies on this court’s opinion in Faust v. BNSF Railway Company for its
statement of the rule that “‘if there are other plausible causes of the injury or
condition that could be negated, the plaintiff must offer evidence excluding those
causes with reasonable certainty.’” 24 This court relied on the Supreme Court of
Texas’s 1997 Havner opinion for that language. 25 But in 2010, also relying on
Havner, the Supreme Court of Texas refined the rule, stating that “if evidence
presents ‘other plausible causes of the injury or condition that could be negated, the
(proponent of the testimony) must offer evidence excluding those causes with
reasonable certainty.’” 26 This court implicitly followed this rule in Faust, specifically
pointing out that the record in that case
demonstrate[d] that there was evidence of other plausible causes of
Linda’s gastric cancer: H. pylori and cigarette smoking. Peter Shields,
M.D., testified for BNSF that H. pylori is an established cause of
stomach cancer and that, by itself, it was a substantial cause of Linda’s
stomach cancer. He also testified that there is a “pretty broad
consensus” that smoking can cause stomach cancer and that he could
not imagine what evidence someone could review in this case to
conclude that smoking was not the cause or a substantial contributor to
Linda’s stomach cancer. 27
24
337 S.W.3d 325, 334 (Tex. App.—Fort Worth 2011, pet. denied) (quoting
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 720 (Tex. 1997), cert.
denied, 523 U.S. 1119 (1998)).
25
Id.
26
Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211, 218 (Tex. 2010)
(emphasis added) (quoting Havner, 953 S.W.2d at 720).
27
Faust, 337 S.W.3d at 335 (emphasis added).
19
To be evidence of causation, “an expert opinion must rest in reasonable
medical probability.” 28 In arguing in its brief that Johanning failed to articulate a
basis for ruling out other causes of Phillips’s injury, BNSF relies only on Johanning’s
conclusory testimony on cross-examination that genetics, diabetes, and spinal
slippage generally could be factors in the injuries suffered by Phillips. Contrary to
BNSF’s assertions, Johanning never conceded that obesity could be a factor in
Phillips’s injuries, and BNSF’s trial counsel moved to a new topic when Johanning
offered to show him (and the jury) “studies that show there’s no relationship
controlling for other factors including, probably, mass index of obesity, that type of
thing.”
BNSF relies on no expert testimony of its own in arguing in its brief that
evidence of these other alleged potential causes was admitted. Thus, BNSF does
not point to evidence “resting in reasonable medical probability” of those alleged
other potential causes. Consequently, we hold that no evidence triggered any duty
on Phillips’s part to offer evidence excluding other potential causes of his injuries
with reasonable certainty. 29 Nevertheless, we point out that he did exclude those
causes, as shown by Johanning’s testimony:
Q. Okay. Would you tell us a little bit about what your examination
consisted of, when you did it, et cetera?
28
Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 500 (Tex. 1995).
29
See Crump, 330 S.W.3d at 218.
20
A. It was a standard physical, comprehensive evaluation, a history
taking. I asked Mr. Phillips why he’s here, what his issues are,
what his problems are. Which treatment—which doctors he had
seen, which treatments he had received. What other medical
problems he has, other than the back issues that he was talking
about as his main complaint. Asked him about family history;
past medical history; medication use; smoking history; hobbies;
other jobs, other than the locomotive engineer jobs; any jobs he
had done; any activities that would require any, you know,
forceful lifting, bending, twisting or exposure to vibration.
I reviewed medical records corresponding to what he told
me about, you know tests that had been done. X-rays, MRIs,
CAT scans and so forth.
Q. What would your most important findings be with respect to his
condition when you saw him?
A. Well, he reported to me that he had significant neck and lower
back pain that affected his extremities, primarily on the right side.
He had numbness, tingling, pins and needles pain radiating to
the right, mainly in the arms, as well as the leg that occurred
over some time period.
That he had seen a doctor for this who referred him to a
specialist, who referred him to another specialist. One was a
neurologist, someone who looks at nerve problems. Another
one, once he diagnosed the nerve issues, referred him to a
surgeon to correct the problem.
I looked at his regular doctor notes. You know, Mr.
Phillips has hypertension, diabetes, a number of other issues
which could play a role, and I—I considered that. And I did
what’s called a differential diagnosis trying to rule in or rule out
other conditions that may present itself as back problems or
back pain. Like cancer, inflammatory disease, gout, you know,
cirrhosis and so on and so forth.
Q. Did you take a comprehensive work history from him with
respect to all of his work at the railroad?
A. That’s right.
21
Q. And did you get the full information about the number of years
and the types of seats and locomotives and areas where he
worked?
A. As an occupation physician, I spend a lot of time on this. So I
went through that in great detail asking him what jobs did he do,
how long did he do it, what his hours are, what locomotive he
used, what the seats were. Other workers with similar problems
there that he’s aware of.
And like I said, you know, it’s what is he doing outside of
his job. Is he riding horses, or is he a rodeo champ or a
paratrooper or whatever, you know, that could play a role. Was
he a construction worker, let’s say. Was he a trucker. You
know, was he jumping out of airplanes for some reason, you
know, which could play a role for his particular injury. Which he
said he didn’t, by the way. Were all negative.
Q. What about some of the other issues that the railroad has raised
in this case, if I could ask it. As part of your differential
diagnosis, smoking, childhood falls, spondylolysis or
spondylolisthesis, diabetes, did you assess and consider those
other factors?
....
A. [Y]eah, he has a problem with a protrusion, and I have an
example of it on the slide of the lower part of his spine. Maybe
genetic, it’s not clear. I think that at least now we know that it’s a
little slippage of the spine with the pelvic bone. Visible now on
the X-ray.
He had—what he told me, maybe he was rejected by the
Army and I think by the railroad at some point in some medical
examination, for some reason he’s not sure about. I mean, may
be related to this, or it may have been related to some kidney
issues he had at the time early on. He’s not sure.
So I considered that. It’s a minimal slippage. It’s a grade
one, meaning less than one quarter of the spine size—I mean,
the verte—sorry. Vertebrae size. It’s very minimal. I don’t think
it’s a competent factor. It’s not an issue that required surgery or
interfered with any of his job activities early on.
22
Q. What about diabetes or smoking?
A. Well, they’re two important things. Smoking, I think, there wasn’t
anything. He has quit smoking for several years. He wasn’t
such a heavy smoker. There wasn’t any other signs that are
typical for smoking, vascular problems.
He has diabetes, chronic diabetes for several years. And
there, certainly people can have some nerve damage and some
vascular issues. Again, I don’t think he has vascular issues
related to diabetes. He may have some, you know, early signs
of peripheral neuropathy from diabetes, based on some—one
test, but not clinically speaking. And none of the doctors ever
suggested that, except for a neurologist who examined him
saying this could be related. I’m not sure, it may be a factor in it.
But in the final diagnosis, he didn’t consider it a competent
factor.
Q. And what about his spine with respect to premature
degenerative dis[c] disease, what were your findings?
A. He has what I would say we typically see in people who have
intense vibration exposure for many years. And if you’ll allow
me, I think 30 years on the job being a locomotive engineer or
conductor or fireman, being up in the cab. So typically we want
to see at least 10 to 15 years, 10 years on a job, you know, to
consider it as an occupational issue. He has double of that.
He has the problems where we typically would see it in the
lumbar spine and the neck. He also has degenerative, you
know, accelerated aging signs in the thoracic spine, meaning the
chest.
....
Q. You’ve reviewed all of his medical records—
A. Right.
....
Q. Did you review his actual MRIs and scans, and do you have
those for us?
23
A. Right. I have a synopsis of it. I mean, there are hundreds of
pictures, and it’s going to take a long time to get them all up—
uploaded. You know, they’re all electronic[]. But I have a few of
them that I thought shows the—the key issues and messages
here.
A. This is what we—what you tried to say earlier, spondylolisthesis.
Q. [Plaintiff’s Counsel]: Thank you.
A. Spondylo- means the spine. And -listhesis means slippage.
And he had a—what they call grade one. Not as much as this,
actually, he had less, you know, quarter of the, a little slippage
there. Grade four would be all the way out. You know, and then
clearly you get compression there. That’s shown.
And these the earliest MI found, and it’s unfortunately
not—not separate cuts. They’re all put together. It’s from 2003.
But it will show you highlights of this. And these are sagi—
sagittal cuts . . . [, m]eaning side cuts. Then you’ll see from the
side view, there he is, his spinal canal. Trust me for that[ i]s the
. . . bone, the processing where the other doctor had the needles
in. And up here is the front part of the spine, the vertebrae.
I show you in more detail. You know, this is a different
year now. Same spine. It’s Mr. Phillips from 2003.
....
And for me, what’s important is, now how do the vertebra
surface look. How do the dis[cs] look. And does it affect the
spinal cord that’s shown back here. And then a search, and we
look at it.
And you see here, actually, this tiny slippage, the
spondylolisthesis that he had, probably all along didn’t bother
him. So I don’t think, you know, if they did military X-rays in the
old days they would exclude someone because, yeah, they
shouldn’t jump out of airplanes. You know, that’s certainly a risk,
you know. But no one from the railroad subsequently excluded
him for any reason, know it was that.
This is the 2008 [MRI].
24
....
And what’s unique for Mr. Phillips here, and it’s common in
many of these reports, the straightened [neck.] Normally you
have a nice shape there. Why is the curve in the spine, this
double S curve good? Because when you compress it, you
know, a curve element . . . gives in. If it’s stiff, a straight stick or
whatever will not give in. So the neck doesn’t have anything to
cushion itself. It’s straightened up because of the degenerative
effects on the cervical spine that required the surgery.
....
Q. And in your review of these MRIs and—and scans, did those
confirm your diagnosis of premature degenerative dis[c]
disease?
A. That’s the results of it, yeah.
....
Q. . . . Dr. Johanning, based upon all of your training and your
experience, based on the occupational history that you took from
him, based upon your understanding of the medicine and the
review of the scans, do you have an opinion that you can
express with reasonable medical probability as to whether or not
these injuries, these premature degenerative dis[c] disease
changes, herniated and ruptured dis[c]s and spinal cord
impingement, were caused by his work for the . . . BNSF
railway?
A. Yes, I believe based on the data I have and my experience and
training that the nerve damage he has is a result, in whole or in
part, from the exposure and the repeated shocks and jolts that
he experienced in 30 years operating locomotives, the way I
studied them. And we have documented and other people have
described the problems that are in the cabs with the vibration
exposure and jolts, yes.
Q. Dr. Johanning, based upon a reasonable degree of medical
probability, do you have an opinion as to whether or not the need
for these surgical procedures was likewise caused by his work
25
for the railroad and his overexposure to jolts[,] shocks[,] and
whole body vibration?
A. I think based on my medical knowledge and training, I would say
yes. There was a dire need for these type of interventions.
Q. Would you consider this, in your medical opinion, to be normal
aging?
A. Certainly not. I don’t hope that’s the norm. No, it’s certainly—I
mean, someone with so much surgery and deterioration of the
spine, I wouldn’t expect that. Even if someone has diabetes,
high blood pressure, is a smoker, you know, obese or whatever,
these are not factors that I think explains any of what we’re
looking at here.
Q. And so in your best professional judgment, what would be the
factor that explains what happened to Mr. Phillips?
A. I think it’s work exposure. The shocks and jolts; the bad seats;
the awkward postures at times; the slack in, slack out, that type
of action; the resonance effects; the vector sum results that
we . . . saw; the high crest factors. These are indices for
exposure. Based on comparative studies now that other people
have done with other occupations where they had similar
exposures.
....
Q. And just for the record, all of the opinions that you’ve just
expressed would be to a reasonable degree of medical
probability?
A. Yes.
We reject this argument by BNSF. Having disposed of all BNSF’s arguments
as to the reliability of Johanning’s testimony, we hold that his expert evidence is
reliable.
26
2. Reliability of Kress’s testimony
BNSF argues that as a matter of law, Kress is not qualified to testify to specific
causation because he is an ergonomist, not a medical doctor. As our sister court in
Tyler explained in a similar case almost twelve years ago,
[Kress’s] education and work are in the areas of biomedical
engineering and human factors engineering. His work, including
teaching, research, and consulting, involves the application of
engineering principles to the human body, focusing on injury
prevention. This includes the biomechanical and ergonomical
engineering aspects of safety and injury. Synar’s suit involved
allegations that UP did not provide him with a safe place to work,
leading to his repetitive-use injury. Kress could properly testify as to
these matters. 30
Similarly, here, Kress testified that BNSF did not provide reasonable seats,
did not reasonably maintain the seats that it did provide, and did not provide Phillips
a reasonably safe working environment. Like our sister court, we also conclude that
Kress is not precluded from testifying “as to these matters.” 31
BNSF also contends that Kress’s testimony is unreliable and therefore no
evidence because (1) he relies on epidemiological studies without proving the
requisite background needed to render them admissible; (2) he cannot testify to any
specific dose/response relationship between vibration and injury; and (3) he did no
actual testing in this case to determine the levels of exposure to which Phillips may
30
Synar v. Union Pac. R. Co., No. 12-99-00428-CV, 2001 WL 1263573, at *6
(Tex. App.—Tyler Oct. 17, 2001, pet. denied) (not designated for publication).
31
See id.
27
have been exposed. We reject BNSF’s arguments regarding the necessity of
epidemiological studies being admitted into evidence before the jury and of
complying with toxic tort caselaw for the same reasons we rejected those arguments
when raised against Johanning. 32
As to BNSF’s third argument, that Kress did no actual testing in this case to
determine the levels of exposure Phillips experienced and that Kress’s testimony is
therefore unreliable, an expert does not necessarily have to do his own testing to
qualify as an expert. As the Supreme Court of Texas has explained,
In determining whether expert testimony is reliable, a court may
consider the factors set out by the Court in Robinson and the expert's
experience. However, in very few cases will the evidence be such that
the trial court's reliability determination can properly be based only on
the experience of a qualified expert to the exclusion of factors such as
those set out in Robinson, or, on the other hand, properly be based
only on factors such as those set out in Robinson to the exclusion of
considerations based on a qualified expert's experience. 33
The Supreme Court of Texas explained the parameters of the Robinson
factors,
There are many factors that a trial court may consider in making the
threshold determination of admissibility under Rule 702. These factors
include, but are not limited to:
(1) the extent to which the theory has been or can be tested;
(2) the extent to which the technique relies upon the subjective
interpretation of the expert . . . ;
32
See Tex. R. Evid. 803(18); Robinson, 923 S.W.2d at 556.
33
Camacho, 298 S.W.3d at 638 (citations omitted).
28
(3) whether the theory has been subjected to peer review and/or
publication;
(4) the technique’s potential rate of error;
(5) whether the underlying theory or technique has been
generally accepted as valid by the relevant scientific community; and
(6) the non-judicial uses which have been made of the theory or
technique.
We emphasize that the factors mentioned above are non-
exclusive. Trial courts may consider other factors which are helpful to
determining the reliability of the scientific evidence. The factors a trial
court will find helpful in determining whether the underlying theories
and techniques of the proffered evidence are scientifically reliable will
differ with each particular case. 34
In Kress’s affidavit attached to Phillips’s brief opposing BNSF’s motion to
exclude Kress, Kress explains the foundation for his opinions. In addition to his
“review and knowledge about the scientific, engineering, medical[,] and
epidemiological literature in regard to the health effects of repeated exposure to
whole-body vibrations, shocks[,] and jolts in the seated environment,” Kress relied
upon pleadings and discovery; Phillips’s medical records; photographs and
timetables produced by Phillips regarding various locomotives he worked on during
his career; photographs Phillips produced of tractor seats with dampening devices; a
prior report prepared by Johanning in another case regarding his testing of BNSF
locomotive ride quality characteristics and seating evaluation; a prior report
prepared by William H. Muzzy in another case titled, “Preliminary Analysis of
34
Robinson, 923 S.W.2d at 557.
29
Locomotive Operator Seats—Condition and Suitability”; an index to ergonomic and
medical literature from BNSF’s own files that BNSF produced in another case; and
other materials from similar cases Kress worked on involving cumulative trauma
spinal injuries to BNSF locomotive engineers and conductors, which include many
thousands of pages of BNSF internal documents, memoranda, correspondence,
complaints and reports from train crew personnel about defective locomotives and
seats, locomotive defect reports, and cab seat defect reports produced in those
cases.
Although Kress did not conduct a site inspection in this case, he explained in
his affidavit that it was unnecessary for him to do so for three important reasons.
First, Phillips’s injuries are cumulative; they developed over a career spanning more
than three decades. Thus, many of the seats and locomotives Phillips formerly
utilized would not have been available for inspection at the work site. Further, Kress
is very knowledgeable of the locomotives and seats Phillips encountered in his long
career because Kress has personally evaluated a large number of BNSF
locomotives and cab seats over the course of his career. Finally, Kress had no
need to make a site inspection because he already had amassed detailed
information about BNSF’s locomotives and cab seats used over the last thirty years
from his review of the many thousands of pages of internal BNSF documents,
memoranda, photographs, correspondence, and complaints, as well as reports from
train crew personnel about defective locomotives and defective seats, locomotive
30
defect reports, and cab seat defect reports produced during discovery in this and
prior similar cases he has worked on.
Thus, we hold that Kress’s opinions are based on his long experience and
“grounded ‘in the methods and procedures of science[,]’” not based merely on
“subjective belief or unsupported speculation.” 35 Having disposed of BNSF’s
arguments, we hold that Kress’s opinions are reliable.
B. Sufficiency of the Evidence
BNSF also argues that even if reliable, the testimony of Johanning and Kress
is legally insufficient to support causation. As we explained in a recent FELA case,
Under FELA, every railroad engaging in interstate commerce is
liable in damages to any employee injured during his employment
when such injury results in whole or in part from the railroad’s
negligence or by reason of any defect or insufficiency due to its
negligence. To prevail on a FELA claim, a plaintiff must show that the
railroad did not use reasonable care when it could have reasonably
foreseen harm. The defendant’s duty is “measured by what a
reasonably prudent person would anticipate as resulting from a
particular condition.”
The test for causation under FELA is more relaxed than the
common law standard. The test of causation under FELA is whether
the railroad’s negligence “played any part, even the slightest, in
producing the injury or death for which damages are sought.” Despite
the lower burden under FELA, a plaintiff still bears the burden of
presenting evidence from which a jury could conclude the existence of
a probable or likely causal relationship as opposed to merely a possible
35
Id. (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
590, 113 S. Ct. 2786, 2795 (1993)).
31
one. The causal link between an event sued upon and the plaintiffs’
injuries must be shown by competent evidence. 36
As presented above, Johanning testified that in his opinion, Phillips’s injuries
were caused by his work for the railroad and his overexposure to shocks, jolts, and
whole body vibration. Kress testified,
Essentially, it’s pretty simple when you look at this case. He’s a
professional vehicle operator. That’s what—That’s what Mr. Phillips
does for a living.
And the bottom line is the seated environment in his vehicle is
not reasonable and it is a—it is an antiquated design with respect to
appropriateness for long-term professional drivers that have to be in
that environment. That’s the crux of it.
He also testified,
Q. Do you have an opinion, Dr. Kress, with this background,
knowledge and information as to whether or not it was
reasonable or unreasonable for [BNSF] to provide toadstools,
flat backs or seats that amplified the vibration of the human
spine?
A. I do.
Q. Okay. What is it?
A. I understand by now I don’t think it’s reasonable. Essentially, the
seats . . . are—even if you go beyond the toadstool seat, even
the seats that are currently used are the types that are—they just
have a—literally a pole underneath that mounts the seat pan to
the floor, a rigid metal pole, and then —or that pole—metal poles
that mount onto the wall.
So it’s either like a—you know, like a diving board, so it’s
all rigid metal that can get loose the way it’s affixed or straight to
the floor. There is no mechanical or air suspension in these
36
Nichols, 379 S.W.3d at 381–82 (citations omitted).
32
seats between the seat pan and the floor level, and there’s a
reasonable opportunity to address jolts and vibration at that
level.
Plus, your foams are the types that are the single-density
type foams that don’t have a very long life. Most of them are
only warrantied for about a year and they become flat and
ineffective as far as just the foam standpoint too.
. . .—And then there’s deficiencies of maintenance and
appropriateness in the lumbar curve and the breathability.
There’s all sorts of ergonomic characteristics. It’s just basically
not a good seat. It’s unreasonable.
....
Q. Have you had the opportunity to look at your own data and Dr.
Johanning’s data and either Dennis Mitchell’s data with respect
to the vector sum to make a determination as to whether or
not . . . BNSF violated or was not in compliance with the
appropriate standards of care?
A. Yes, sir, I have.
Q. And what opinion do you have in that regard, Dr. Kress?
A. If you look at just vibration, again, there are other risk factors.
You know, we have transients and jolts and posture influences.
If you look at just vibration, in many of the measured values that
have been—the data that have been presented here and I’ve
looked at, the vector sums exceed the threshold caution values
in the—in the standards that exist.
Q. Okay. Would you have a professional opinion as to whether or
not it would be reasonable or unreasonable to allow these
particular seats that you’re knowledgeable with respect to Mr.
Phillips to become into a condition of disrepair?
Is that reasonable or an unreasonable thing to fail to
maintain the seats?
A. Well, clearly, that’s a simple answer. I mean, it’s unreasonable
not to appropriately maintain your seats. First of all, you want a
33
reasonable seat in the first place. And then naturally you want
to—you want to maintain it and don’t let it get into disrepair or
having problems with its adjustability and looseness and et
cetera.
....
Q. Do you have an opinion, Dr. Kress, as to whether or not the
BNSF provided Mr. Phillips with a reasonably safe work
environment specifically with respect to this particular nonrisk
injury?
A. I do have an opinion.
Q. And what is your opinion?
A. That it’s not reasonable. The seats are antiquated. And it’s just
clear to me from evaluating this, it’s a problem.
Because the jury could have concluded from the evidence that BNSF’s
negligence “played some part” in causing Phillips’s injuries, we hold that the
evidence of causation is sufficient under the FELA standard. We overrule BNSF’s
third issue.
IV. Exclusion of Evidence
BNSF argues in its fourth issue that the trial court improperly restricted
BNSF’s ability to cross-examine Phillips’s witnesses in any meaningful way by
erroneously excluding evidence relevant to the causation inquiry—evidence of
genetics and heredity, evidence from Phillips’s coworkers, and evidence taken from
BNSF’s geometry car.
In its discussion of the first two categories of excluded evidence, BNSF
focuses on the granting of Phillips’s motion in limine. A complaint that the trial court
34
abused its discretion by excluding evidence cannot be predicated on a trial court’s
ruling on a motion in limine. 37 The granting of a motion in limine is not a ruling on
the admissibility of the evidence and does not preserve error. 38 A motion in limine
simply prohibits references to specific issues without first obtaining a ruling on the
admissibility of those issues outside the presence of the jury. 39
To preserve error if the motion in limine is granted, during trial the party must
(1) approach the bench and ask for a ruling, (2) formally offer the evidence, and (3)
obtain a ruling on the offer. 40 If, at that time, the court rules the evidence
inadmissible, the party must further preserve the evidence through an offer of
proof. 41 An appellate court cannot decide whether evidence was improperly
excluded unless the evidence is included in the record for review. 42
To determine whether an abuse of discretion occurred in the exclusion of
evidence, we look to see whether the trial court acted without reference to guiding
37
Sw. Country Enters., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490, 493 (Tex.
App.—Fort Worth 1999, pet. denied).
38
Id.
39
Id.
40
Id.
41
Id. at 493–94; see also Tex. R. App. P. 33.1(a)(1)(B), 33.2; Tex. R. Evid.
103(a)(2).
42
Sw. Country Enters., 991 S.W.2d at 494.
35
principles or rules. 43 We will not reverse a trial court’s judgment because of an
erroneous evidentiary ruling unless the ruling probably, though not necessarily,
caused the rendition of an improper judgment. 44 The complaining party must usually
show that the whole case turned on the evidence at issue. 45 If erroneously admitted
or excluded evidence was crucial to a key issue, the error was likely harmful. 46
We examine the entire record in making this determination of harm. 47 We
evaluate the entire case from voir dire to closing argument, considering the
evidence, strengths and weaknesses of the case, and the verdict. 48 We also
consider whether counsel emphasized the erroneous evidence and whether the
admission of the evidence was calculated or inadvertent. 49
43
Enbridge Pipelines (E. Tex.) L.P. v. Avinger Timber, LLC, 386 S.W.3d 256,
262 (Tex. 2012) (citing Robinson, 923 S.W.2d at 558; Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985), cert. denied, 476 U.S. 1159
(1986)).
44
Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 871 (Tex. 2008).
45
Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001)
(op. on reh’g); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753–54 (Tex. 1995).
46
State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009)
(op. on reh’g); Reliance Steel, 267 S.W.3d at 873.
47
Interstate Northborough P’ship, 66 S.W.3d at 220.
48
Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 236 (Tex. 2011).
49
Id.
36
A. Hereditary or Genetic Factors
BNSF complains that throughout the trial, the trial court erroneously excluded
evidence that hereditary or genetic factors could have been the cause of Phillips’s
injuries. To the extent that BNSF complains of an unfavorable ruling on Phillips’s
motion in limine, a ruling that we can find nowhere in the record, we hold that it did
not preserve error. 50 We further hold that to the extent BNSF complains of the
exclusion of evidence that does not appear in its offer of proof, it has not preserved
the issue. 51
But BNSF did preserve error as to the exclusion of evidence by Drs. William
Mitchell and Dan Spengler as well as by Johanning.
In BNSF’s presentment of its offer of proof of the testimony of Mitchell and
Spengler, the following dialogue occurred:
[Defense Counsel]: . . . . Outside the presence of the jury, the Court
granted Plaintiff’s motion in limine which prohibited the introduction of
evidence concerning the influence of or contribution of genetics toward
the development of degenerative dis[c] disease in the cervical, lumbar
or thoracic spine. Both Dr. Spengler and Dr. Mitchell, if allowed to
testify, would have testified that genetics is a documented contributor to
genetic—to degenerative dis[c] disease in the cervical and lumbar
spine and thoracic spine such as that found in the Plaintiff. And that
Plaintiff’s genetic predisposition to gene—degenerative dis[c] disease
is, in reasonable medical probability, a cause or contributing cause to
Plaintiff’s degenerative dis[c] disease in the cervical and lumbar spine.
50
See Sw. Country Enters., 991 S.W.2d at 493.
51
See id. at 493–94; see also Tex. R. App. P. 33.1(a)(1)(B), 33.2; Tex. R.
Evid. 103(a)(2).
37
That concludes our offer of proof.
THE COURT: Are you telling the Court that there has been a finding of
genetic predisposition?
[DEFENSE COUNSEL]: I’m telling—
THE COURT: It sure sounded like it.
[DEFENSE COUNSEL]: Okay. But I’m—
THE COURT: For the Plaintiff.
[DEFENSE COUNSEL]: What I’m telling the Court is that the literature
supports—there’s—
THE COURT: Everybody knows it, Counsel, which is one of the
reasons why I just—I’ve excluded it. It’s—it’s common knowledge.
[DEFENSE COUNSEL]: Fair enough, but it’s common knowledge we
would like to reinforce with the—with the jury. So I’m not saying—
THE COURT: I’m sure you would.
[DEFENSE COUNSEL]: I’m not saying that there is a specific genetic
finding as to the—
THE COURT: Well, it sounded like it to me, maybe I didn’t—
[DEFENSE COUNSEL]: Well, I’m sorry—
THE COURT:—hear it.
[DEFENSE COUNSEL]:—for—for that. I mean, it’s certainly our
position that the literature supports that it’s a factor or— a contributing
factor or a contributing cause to the—to the degenerative dis[c] disease
as found in the Plaintiff.
In regard to Spengler’s video deposition, even though BNSF contends that
Spengler’s video deposition testimony concerning the role of genetics and heredity
was excluded and that it preserved its objection, defense counsel’s statement to the
38
trial court as provided in the record, together with the notations in the reporter’s
record, indicates that the jury actually heard that portion of Spengler’s testimony.
Defense counsel stated to the court, “With regard to . . . Spengler’s deposition, we
will be playing that deposition for the jury from page 47, line 21 to the end of the
deposition.” [Emphasis added] The deposition takes only forty-nine pages. The
reporter’s record recites that the “[v]ideotaped deposition of . . . Spengler, Court
Exhibit No. 5, was played for the jury[.]” The recitation does not indicate that any
portion of the exhibit was excluded. Moreover, the portion that defense counsel
specifically told the trial court that he would play for the jury includes the following
exchange:
[Defense Counsel]: Dr. Spengler, can you tell us what is the role of
heredity or genetics in causes of spinal conditions?
[Plaintiff’s Counsel]: I don’t think this is an accurate time. I’m going to
object to that, Counsel, for the sake of the record, for us to be putting
something on record. The motion in limine was already ruled on, so—
[Defense Counsel]: And I have to make an offer of proof.
[Plaintiff’s Counsel]: If you want to make an offer of proof, I think that
that would be a more appropriate subject at some—by briefing
schedule.
[Defense Counsel]: The judge instructed us to approach before we
asked these questions. I will approach before any of this is played for
the jury, I assure you.
[Defense Counsel]: Doctor, can you answer my question?
A.: Yes. I think I—maybe could you repeat it once more so I don’t
wander and I get right to it?
39
Q. What is the role of heredity or genetics in spinal problems?
A. Well, I think that’s—that’s what’s the exciting part of the new
science that’s coming of age now. We have a number of
excellent studies by Vieteman and Bhatia on identical twins. I
think that information is very, very relevant to this case.
They studied twins—identical twins. One of the twins had
a very much history of vibratory exposure, exposure to vibration,
driver, etc., etc. The other twin had no such exposure and was
not so active and so forth. And the interesting thing was is they
followed these people along as they aged. There was no
change whatsoever in the MRIs of their lumbar spines and their
spines in general.
So that—that’s a powerful study that suggests where
everything is controlled, there’s not—these are good studies.
These are the best studies we have and they show no
relationship. So I think that’s—that’s important.
And, in fact, the lead article in the Journal of Bone and
Joint Surgery this month, which I haven’t even totally read but
I’ve reviewed it, shows that there’s a big factor of family history
linked to a herniated disc, which we knew in animal studies, such
as the dachshund. I suppose everybody knows about those little
dogs. They have hereditary causes of dis[c] herniations.
And now we’re starting to see literature come out linking
the same to human disc herniations. So I think there’s a lot of
excellent data, much better data than we have that [Plaintiff’s
Counsel] quoted.
Q. Does that information and data on the role of heredity support
your opinion in this case regarding causation in Mr. Phillips’
conditions?
A. Absolutely.
Q. Do you need to have genetic testing done on Mr. Phillips in order
to reach that opinion?
A. No, No, I don’t think—no, no, no, no. I hope I didn’t suggest that.
I think it’s just the—the knowledge that’s come out about the
40
identical twins and these kind of studies is very, very interesting
and I think very, very powerful.
Phillips’s trial counsel cross-examined Spengler in the videotaped deposition
as well:
Q. Doctor, it’s true that you don’t know anything about Mr. Phillips’
genetic history, do you?
A. I do not.
Q. You don’t know that his mother and father are long lived and
have no spinal disorders whatsoever, do you?
A. Well, I wouldn’t say I didn’t know about his father. I knew his
father worked for the railroad for many, many years, but I don’t
know their personal health. And so, yes, I’m not going to discuss
their health. I don’t know that.
Q. You don’t know anything about his father’s spinal health, do
you?
A. All I know is he worked for the railroad, as I said.
Q. Do you know what craft he worked in for the railroad?
A. No.
Q. Do you know anything about his mother’s spinal health?
A. No.
Q. Do you know anything about his family tree in terms of their
spinal health?
A. No.
Q. It’s true, is it not, Doctor, that the studies by Bhatia and Vieteman
were rejected when NIOSH did its comprehensive review of their
work after they testified in front of OSHA?
A. I’m not familiar with that, but it wouldn’t surprise me.
41
Q. It’s true, is it not, that the follow-up studies with Vieteman and
Bhatia have, in fact, identified whole body vibration as an
independent additive factor for degenerative disc disease?
A. I don’t believe that’s quite what their work suggested.
We cannot hold that the trial court abused its discretion by excluding
Spengler’s testimony about the role of genetics and heredity on Phillips’s injuries
when the record indicates that the jury did in fact hear it. 52 Further, because BNSF
gave identical offers of proof for Mitchell and Spengler, even if the trial court had
abused its discretion by excluding Mitchell’s testimony, which we do not hold, 53 there
would be no harm because it is cumulative of Spengler’s testimony that the record
reflects was in fact heard by the jury. 54
Finally, in BNSF’s offer of proof regarding Johanning, the following dialogue
occurred:
[Defense Counsel]: First, . . . Johanning, you agree, don’t you, that a
potential cause to the population in general for degeneration of the
spine is genetic problems?
52
See Taveau v. Brendan, 174 S.W.3d 873, 876–77 (Tex. App.––Eastland
2005, pet. denied) (holding evidentiary issues waived because court could not tell,
based on reporter’s transcription, where tapes were stopped and started and which
parts of tapes were actually heard by jury).
53
See Amoco Chems. Corp. v. Stafford, 663 S.W.2d 147, 150 (Tex. App.—
Houston [1st Dist.] 1983, no writ) (holding that trial court properly excluded doctor’s
testimony that some of plaintiff’s symptoms could be associated with alcoholism or
alcohol withdrawal when no competent evidence indicated plaintiff was alcoholic or
suffered from alcohol withdrawal).
54
See Gen. Motors v. Burry, 203 S.W.3d 514, 545 (Tex. App.—Fort Worth,
pet. denied) (op. on reh’g).
42
A. It’s a genetic issue, yes.
As BNSF acknowledges, on direct examination of Johanning, the following evidence
was admitted,
Q. [By Phillips’s trial counsel]: What about some of the other issues
that the railroad has raised in this case, if I could ask it. As part
of your differential diagnosis, smoking, childhood falls,
spondylolysis or spondylolisthesis, diabetes, did you assess and
consider those other factors?
A. There was a difficult word, right, spondylolisthesis. I know,
everyone has problems saying it—
Q. Spondylo—
A. —yeah, he has a problem with a protrusion, and I have an
example of it on the slide of the lower part of his spine. Maybe
genetic, it’s not clear. I think that at least now we know that it’s a
little slippage of the spine with the pelvic bone. Visible now on
the X-ray.
He had—what he told me, maybe he was rejected by the
Army and I think by the railroad at some point in some medical
examination, for some reason he’s not sure about. I mean, may
be related to this, or it may have been related to some kidney
issues he had at the time early on. He’s not sure.
So I considered that. It’s a minimal slippage. It’s a grade
one, meaning less than one quarter of the spine size—I mean,
the verte—sorry. Vertebrae size. It’s very minimal. I don’t think
it’s a competent factor. It’s not an issue that required surgery or
interfered with any of his job activities early on.
Even if the trial court did abuse its discretion by limiting BNSF’s cross-
examination of Johanning, which we do not hold, any error would be harmless
43
because the testimony in BNSF’s offer of proof is cumulative of the testimony of
Johanning and Spengler that the trial court did admit. 55
Despite the notations in the reporter’s record to the contrary, Phillips argues in
his brief that the foregoing evidence “was properly excluded.” But he contends that
the evidence is irrelevant because there is no evidence that Phillips himself was
genetically predisposed to degenerative disc disease or degenerative spinal
conditions. To the extent that the jury did not hear the complained-of testimony of
Spengler, Mitchell, and Johanning, we hold that the trial court did not abuse its
discretion by excluding it. Johanning testified that he excluded genetic conditions as
a reason for Phillips’s injury. In the absence of any evidence that Phillips had a
genetic predisposition to such injuries––which absence BNSF conceded and the
trial court indicated it found significant––we hold that the trial court did not abuse its
discretion by excluding Johanning’s testimony that “[i]t’s a genetic issue” and
Spengler’s and Mitchell’s testimony that genetics is a cause of degenerative disc
disease. 56
B. Coworkers’ Evidence of No Injury
BNSF also contends that the trial court abused its discretion by excluding
Phillips’s coworkers’ testimony that they do not believe they were harmed by riding
in locomotives. Again, to the extent that BNSF complains of the granting of
55
See id.
56
See Tex. R. Evid. 401; Nichols, 379 S.W.3d at 387–89.
44
Phillips’s motion in limine, it has preserved no error. 57 But BNSF did preserve error
by obtaining an unfavorable ruling and making an offer of proof regarding the
exclusion of testimony of five coworkers—Phillips’s witnesses Clifford Dunson,
Buddy Blue, and Ricke Huguley and BNSF’s witnesses William Sundquist and
James Brandon. Nevertheless, we hold that the lay testimony of Phillips’s
coworkers that they have no medical injuries is mere conjecture 58 and irrelevant to
whether Phillips suffered injuries as a result of his employment. 59 The trial court
therefore did not abuse its discretion by excluding it.
C. Geometry Car Video
BNSF also complains that the trial court abused its discretion by excluding its
geometry car video as cumulative. In offering the video excerpt, BNSF counsel
stated,
We have a 2 minute and 37 second extraction from a geometry
car ride that shows the geometrar (phonetic)—that—that shows various
57
See Sw. Country Enters., Inc., 991 S.W.2d at 493–94; see also Tex. R. App.
P. 33.1(a)(1)(B), 33.2; Tex. R. Evid. 103(a)(2).
58
See Barraza v. Eureka Co., Inc., 25 S.W.3d 225, 232 (Tex. App.—El Paso
2000, pet. denied) (holding that testimony of plaintiff and her coworkers regarding
cause of her injury was pure conjecture).
59
See Charter Oak Fire Ins. v. Perez, 446 S.W.2d 580, 585–86 (Tex. Civ.
App.—Houston [1st Dist.] 1969, writ ref’d n.r.e.) (“The absence of a previous claim
for lung injury [by any other employee] is a circumstance which affords very little, if
any, basis for a reasonable presumption that Perez’ sustaining of an occupational
disease was not due to the nature of his employment, that the hazards of the
disease do not exist in the nature of his employment or that such disease is not
characteristic of his employment and peculiar to it.”).
45
frogs and switches and turnouts and bridges and that sort of thing. And
I would like to show that in conjunction with Mr. [Craig] Sloggett, to
show: Hey, this is the geometry car, this is the equipment that it has,
these are the conditions they look for, this is the track that we’re
traveling over.
After the trial court excluded the video excerpt, BNSF counsel continued questioning
Sloggett:
Q. All right. Mr. Sloggett, does the BNSF have the detection
equipment that’s designed to detect defects and to enhance
quality control?
A. Yes, we do, we have several different types of equipment.
Q. All right. Would you tell the jury the types of equipment you have
in that respect.
....
A. Got geometry cars that go over and simulate like a engine car
going over the track. It’s got test equipment on it. Some of the
latest in equipment anywhere available in the world that’ll test
how level the track is, is it the—the right geometry, you know,
level, are the curves banked right for dips and bumps in the
track, and all that. And all that equipment we ran frequently
across the Clovis sub.
....
Q. All right. And then the geometry car, you’ve been on the
geometry car, have you not?
A. Yes, several times.
Q. All right. Have you been on the geometry car across this Clovis
to Belen subdivision?
A. Yes, I have.
Q. And I just want to go through briefly just so the jury can get an
idea of what this equipment looks like and—and what it does.
46
We’ve seen this before, but can you tell me what that is, tell jury
what that is?
A. That is one of our geometry cars, the one typically that runs
across that portion of the railroad, the Clovis sub.
Q. All right. And it’s got a locomotive and a power generator, and
then you’ve got the car back there, right?
A. That is correct.
Q. All right. Now, is there a front and back of the car?
A. Yes, there is.
Q. If you’d tell the jury, then, is that the front or the back?
A. That’s the back of the car. That’s where, like myself, the
roadmasters, track inspectors, foreman would sit in looking at all
the different screens and data that the car’s putting out, and
you’re looking out the back of the car as you’re going down the
track.
Q. All right. So typically, the division engineer[s] will be up here,
and then the road foreman would be back here communicating
repairs?
A. Yes.
Q. All right. Now, there are three screens up there. This is a rail
profile screen, and what’s this screen about?
A. That is the strip chart in the center there.
Q. Okay. And what is this?
A. That’s a summary of the events, whether it’s defects. Kind of
tells you where it’s at, a small track chart along.
....
Q. . . . . So Mr. Sloggett, long story short, you have sophisticated
equipment that goes through and measures various things and
finds the defects; is that correct?
47
A. That is correct.
Q. All right. I want to show one last screen for you to have a look
at, and let’s talk about it. There are times, I guess, when you do
find defects; is that correct?
A. That is correct.
Q. And the red ones are FRA defects; is that right?
A. FRA and—and BNSF defects.
Q. All right. And what about the yellow ones?
A. They’re a condition that’s getting close, something that need—
we need to over time fix before it gets to the condition where,
you know, we have to slow the track down, slow the trains down.
Q. All right. So not only do you detect actual defects, you detect
development of potential defects and take corrective action in
advance?
A. That is correct.
....
Q. . . . . I guess the last thing I’d like to ask you is, in your—with
your various jobs, have you had an opportunity to ride
locomotives?
A. A lot of times.
Q. And tell the jury about what your exposure is to riding in
locomotives.
A. Even when I first started on the work crews and that, we ride the
locomotives just to go out to work. You know, in and out of work
and that. And throughout my career, I’ve rode several
locomotives. And, you know, my experience on the Clovis
subdivision, I—I ride eight to ten times a year on the locomotive,
plus on, you know, riding the geometry car four times a year
across there. So I would ride the locomotive a lot of times
because I lived in Albuquerque and going over to Clovis. I would
drive down from Albuquerque to Belen, get on the locomotive
48
because I could get—first off, I could get over to Clovis faster,
and it was a lot smoother ride going down than driving the
highway.
Q. All right. Now, just—just basically, what is your impression of
just general, I understand you’re not an engineer. You don’t—
you haven’t been on there as much as Mr. Phillips. But when
you were on locomotives, what is impression of the quality of
ride?
A. Kind of like I stated earlier, I mean, I—I preferred that than
driving—
Q. Right.
A. —I mean, it was a good ride, smooth ride.
Because Sloggett’s testimony accomplished the same purposes that BNSF
articulated when seeking the admission of the video excerpt into evidence, and
because a trip on the rails had already been shown by an excerpt of Johanning’s
video, we cannot say that the trial court abused its discretion by excluding this video,
or, if so, that such exclusion was harmful. 60 We overrule BNSF’s fourth issue.
V. Contributory Negligence
In its sixth and final issue, BNSF argues that the trial court erred by refusing to
submit the issue of Phillips’s contributory negligence to the jury. BNSF clarifies in its
reply brief that this issue pertains to the FELA cause of action only, not to the LIA
cause of action. 61 FELA recognizes contributory negligence as an affirmative
60
See Tex. R. App. 44.1(a).
61
See 45 U.S.C.A. §§ 53, 54 (West 2007); Lilly v. Grand Trunk W. R.R. Co.,
317 U.S. 481, 491, 63 S. Ct. 347, 353–54 (1943).
49
defense that does not bar relief but instead diminishes the recovery of a negligent
employee. 62 The same standard of causation applies to the employee’s contributory
negligence as to the railroad’s negligence. 63 As we have already explained,
The test of causation under FELA is whether the railroad’s
negligence “played any part, even the slightest, in producing the injury
or death for which damages are sought.” Despite the lower burden
under FELA, a plaintiff still bears the burden of presenting evidence
from which a jury could conclude the existence of a probable or likely
causal relationship as opposed to merely a possible one. The causal
link between an event sued upon and the plaintiff’s injuries must be
shown by competent evidence. 64
Thus, the test of causation for contributory negligence is whether Phillips’s
negligence, if any, had any part in producing his injuries. 65 And BNSF had the
burden to present evidence from which the jury could conclude a likely or probable
causal relationship, not merely a possible one. 66
BNSF appears to contend that Phillips’s failure to complain in writing, to “bad
order” a locomotive, or to refuse to operate a particular locomotive if he believed the
seat was substandard contributed to his injuries. BNSF does not develop its
argument in any detail. We cannot say that a jury could conclude more than a
62
Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 166, 127 S. Ct. 799, 805 (2007).
63
Id. at 171, 127 S. Ct. at 808.
64
Nichols, 379 S.W.3d at 382 (citations omitted).
65
See id.
66
See id.
50
possible causal relationship from Phillips’s failure to complain and his injuries,
especially given the evidence that when he realized that his work had caused his
debilitating injuries, he retired. Similarly, Phillips’s speeding in eight different
locations over a two-month period in 1991, approximately fourteen years before his
diagnosis, is evidence from which a jury could at most find a possible relationship.
Finally, the evidence shows that when Phillips realized that his job caused his
debilitating condition, rather than merely aggravated his minor pains, he did not ride
a locomotive again. We hold that there is therefore no evidence that he continued
“operat[ing] locomotives . . . many years after he drew a connection between his
spinal injuries and” his employment. Because there is no evidence from which the
jury could conclude that negligence, if any, of Phillips partially caused his injuries,
the trial court did not err by omitting the contributory negligence instruction. We
overrule BNSF’s sixth issue.
VI. LIA Claim
In its fifth issue, BNSF argues that there is no evidence that BNSF violated
LIA, and that a remand is necessary if this court renders judgment in favor of BNSF
on Phillips’s LIA claim but renders judgment in favor of Phillips on his FELA claims.
LIA claims are subsumed within FELA claims and thus not independent causes of
action. 67 Because we have already held that the evidence supports the jury verdict
67
See Munns v. CSX Transportation, Inc., 579 F. Supp. 2d 924, 929 (N.D.
Ohio 2008).
51
on Phillips’s FELA claims, we do not need to address the sufficiency of the evidence
supporting the jury’s LIA findings. 68 Further, because the LIA claims are subsumed
within Phillips’s FELA claims and because the jury specifically found that BNSF was
negligent by answering “Yes” to Question No. 1, there is no need for a
Casteel/Smith analysis. 69 “[T]he damages awarded are consistent with either
theory.” 70 We overrule BNSF’s fifth issue.
VII. Conclusion
Having overruled BNSF’s dispositive issues, we affirm the trial court’s
judgment.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.
MEIER, J., filed a dissenting opinion.
DELIVERED: May 22, 2014
68
See Tex. R. App. P. 47.1.
69
See Harris Cnty. v. Smith, 96 S.W.3d 230, 233–34 (Tex. 2002); Crown Life
Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2000) (op. on reh’g).
70
See Urie v. Thompson, 337 U.S. 163, 196, 69 S. Ct. 1018, 1038 (1949).
52
BNSF Railway Company v. James E. Phillips
Combined Opinion