Juanita Walker v. April Rangel

Reversed and Remanded and Memorandum Opinion filed December 3, 2009. In The Fourteenth Court of Appeals ___________________ NO. 14-08-00643-CV ___________________ JUANITA WALKER, Appellant V. APRIL RANGEL, Appellee On Appeal from the County Civil Court at Law No. 4 Harris County, Texas Trial Court Cause No. 848124 M E M O R A N D U M  O P I N I O N Juanita Walker sued April Rangel, claiming personal injury from an automobile accident. A jury found Rangel’s negligence did not proximately cause the accident. Walker now appeals, contending the trial court erred in admitting opinion testimony of Senior Police Officer Daryl Woods of the Houston Police Department and Rangel’s accident reconstruction expert, Dale King. After a thorough review of the appellate record, we conclude the trial court erroneously admitted the following testimony: · Officer Woods’s conclusion regarding the points of impact on the vehicles; · Officer Woods’s conclusion regarding location of the initial impact where he found vehicle debris; · Officer Woods’s conclusion that Walker drove into a lane occupied by Rangel’s vehicle; · King’s conclusion that Walker drove into a lane occupied by Rangel’s vehicle; and · King’s conclusion that the accident most likely occurred where vehicular debris was found. We further conclude that the trial court properly admitted King’s following opinions: · The initial impact did not occur at the intersection; and · The accident resulted from a side-to-side impact. We hold the erroneously-admitted opinions probably resulted in rendition of an improper judgment. Accordingly, we reverse the trial court’s judgment and remand this case for a new trial.[1] I. Factual and Procedural Background The automobile accident occurred in Houston, Texas, on a feeder road of the Southwest Freeway, U.S. Route 59, during July 2005. According to a police diagram, the feeder road has at least three lanes of traffic at this location. At or near the 11100 block of the Southwest Freeway, Roark Road intersects with the right or outside lane of the feeder road (the “intersection”). Vehicles approaching the feeder road from Roark come to a stop sign and must turn right onto the one-way feeder road. A hotel parking lot is on the right side of the feeder road, the middle of which is around 145 feet down the feeder road from the intersection. At the time of the accident, Walker was driving a taxi cab with passengers Dr. Liliana Karim and her child.[2] Walker claimed she was in the middle lane of the feeder road when she saw something coming from her right. Walker testified that she turned her cab “a little bit” to the left to avoid the incoming object, but was struck by Rangel, who was driving a truck. Walker claimed that the left side of Rangel’s front bumper struck near the right rear-passenger door of her cab, propelling the front of her cab to the right, where her front, right-side fender and panel were struck by the front of Rangel’s truck. Walker further testified that Rangel hit her at a “T-bone” angle rather than a sideswipe: “[I]t’s not like [Rangel] was coming side by side with me. She’s coming from an angle. She’s coming off a side street.” According to Walker, Rangel entered the feeder road at Roark, and the impact occurred at or very near that intersection. Walker also testified that the impact propelled her cab into the far left lane. After Walker regained control, she drove her vehicle into the hotel parking lot. Rangel testified she stopped on Roark, checked to see if traffic was coming from the left, and then turned into the far right-hand lane of the feeder road. According to Rangel, someone collided with the side of her truck as she drove down the feeder road, but she did not see the impacting vehicle or how the impact occurred because her truck is tall. Nevertheless, Rangel described the impact as “side-to-side” and denied the front corner of her truck hit Walker at an angle. Rangel stated she reacted by turning right to avoid further collision, causing her to drive over the feeder road curb and into a car parked in the hotel parking lot. Rangel stepped out of her truck and saw Walker driving toward the hotel parking lot. Rangel maintained that the accident did not occur at the intersection, but farther down the feeder road. Rangel presented the deposition testimony of Officer Woods. Walker objected to Officer Woods’s qualifications to offer expert opinion testimony. The trial court overruled Walker’s objection. Rangel also presented the deposition testimony of King, an accident reconstruction expert. Walker objected regarding reliability of the data on which King based his opinions. Again, the trial court overruled Walker’s objection. After hearing evidence and arguments of counsel, the jury found Rangel’s negligence, if any, did not proximately cause the occurrence in question. The trial court rendered judgment on the jury’s verdict. II. Issue Presented and Standard of Review In a single issue, Walker contends the trial court erred in admitting Officer Woods’s and King’s opinion testimony over her objections, probably causing rendition of an improper judgment. The trial court has broad discretion to determine admissibility of expert testimony; as such, a reviewing court will reverse only if there is an abuse of that discretion. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001). A trial court abuses its discretion only when it acts in an unreasonable and arbitrary manner, or when it acts without reference to any guiding principles. Champion v. Great Dane Ltd. P’ship, 286 S.W.3d 533, 543 (Tex. App.—Houston [14th Dist.] 2009, no pet.). We must uphold the trial court’s evidentiary ruling if there is any legitimate basis for it. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). Texas Rule of Evidence 702, entitled “Testimony by Experts,” provides, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Tex. R. Evid. 702. Expert testimony is admissible if the expert is qualified and the testimony is relevant and based on a reliable foundation. Helena Chem. Co., 47 S.W.3d at 499. Once the party opposing the expert testimony objects, the proponent bears the burden of demonstrating admissibility of the testimony. See E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995). III. Analysis A. Officer Woods’s Qualification to Offer Opinion Testimony We begin by addressing whether the trial court abused its discretion in allowing Officer Woods to testify as an accident reconstruction expert. Officer Woods testified he interviewed Walker and Rangel at the accident scene. He observed the vehicles’ damage and found vehicular debris on the road. He spoke with another officer at the scene and with someone from accident division, both of whom assisted him in the investigation. Based on his investigation, Officer Woods determined there were two points of impact; the first occurred where debris was found approximately 30 or 40 yards from the intersection. He also opined that Walker entered the lane occupied by Rangel. His diagram, which was admitted into evidence, reflected these opinions. The party calling the expert witness must show he is qualified by possessing “knowledge, skill, experience, training, or education” to testify on the specific issue before the court. See Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex. 1998). Rule 702 permits expert testimony if such testimony would assist the trier of fact in understanding the evidence or determining a fact issue. Tex. R. Evid. 702; see Gammill, 972 S.W.2d at 718. Whether an expert is qualified under Rule 702 is a preliminary matter to be determined by the trial court. See Gammill, 972 S.W.2d at 718. A trial court “must ensure that those who purport to be experts truly have expertise concerning the actual subject matter about which they are offering an opinion.” Id. at 719 (quoting Broders v. Heise, 924 S.W.2d 148, 152 (Tex.1996)). “General experience in a specialized field is insufficient to qualify a witness as an expert.” General Motors Corp. v. Burry, 203 S.W.3d 514, 526 (Tex. App.—Fort Worth 2006, pet. denied). If the expert is not qualified to offer a particular opinion in a particular case, then the expert’s testimony is not admissible because it does not rise above mere speculation, and, accordingly, does not offer genuine assistance to the jury. See Broders, 924 S.W.2d at 153. “As a general rule, police officers, based on their position as police officers alone, are not qualified to render opinions regarding accidents.” Pilgrim’s Pride Corp. v. Smoak, 134 S.W.3d 880, 891 (Tex. App.—Texarkana 2004, pet. denied). “[P]olice officers are qualified to testify regarding accident reconstruction if they are trained in the science and possess the high degree of knowledge sufficient to qualify as an expert.” Id. Relative to his qualifications, Officer Woods testified he had received only basic training in accident investigation. He stated his hand-drawn accident diagrams were not as precise as those drawn by someone from accident division. Officer Woods estimated he has investigated approximately 150 traffic accidents per year during his twenty years on the force. However, Officer Woods failed to explain how this experience imbued him with expertise in accident reconstruction. Instead, he admitted several times that he conferred with someone from accident division during his investigations. Finally, Officer Woods admitted he is not an accident reconstruction expert. In light of this testimony, we conclude the trial court abused its discretion by overruling Walker’s qualification objection. See Clark v. Cotton, 573 S.W.2d 886, 887–88 (Tex. Civ. App.—Beaumont 1978, writ ref’d n.r.e.) (officer with eight and one-half years’ experience and who had investigated over 350 accidents did not qualify as expert when he had no specialized training in accident reconstruction). Accordingly, we hold the trial court erred in admitting Officer Woods’s opinion testimony. B. Reliability of Data Supporting Accident Reconstruction Expert’s Opinion Walker next complains about the trial court’s overruling her objection that the data supporting King’s opinions was unreliable. In determining the reliability of an expert’s methodology and underlying data, the trial court may consider several non-exclusive factors, including (1) the extent to which the expert’s theory has been or could be tested; (2) the extent to which his technique relies upon subjective interpretation; (3) whether his technique has been subjected to peer review and/or publication; (4) the potential error rate for the technique; (5) whether the expert’s underlying theories or techniques have been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses that have been made of the theory or technique. See Robinson, 923 S.W.2d at 557. In addition, a trial court may give weight to the expert’s skill and experience when appropriate to do so. See Gammill, 972 S.W.2d at 726. If there is an analytical gap between the expert’s conclusions and the underlying data upon which he relies, his expert testimony may be unreliable and inadmissible. See id. The Texas Supreme Court has recognized “‘the Robinson factors are not always useful in evaluating expert testimony in automobile cases.’” Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 39 (Tex. 2007) (quoting Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 801 (Tex. 2006)). Courts should bear in mind “‘there must be some basis for the opinion offered to show its reliability,’” and “‘[a]n expert’s bare opinion will not suffice’ and is unreliable if ‘based solely upon his subjective interpretation of the facts.’” Id. (quoting Volkswagen of America, Inc. v. Ramirez, 159 S.W.3d 897, 906 (Tex. 2004); Gammill, 972 S.W.2d at 726). Walker concedes King is a qualified accident reconstruction expert. King testified he reviewed the depositions of Walker, Officer Woods, and Veda Cuffee,[3] as well as the accident report, which contained Rangel’s opinions, and photographs of the vehicles. King also obtained measurements at the accident site. His principal opinion testimony was two-fold: (1) the accident most likely occurred during a shallow-angled lane-change maneuver, instead of a vehicle entering the feeder road directly from a stop sign, which would be at a greater angle; and (2) therefore, it was most likely Walker moved into Rangel’s lane, made contact with Rangel, and Rangel went into the parking lot where she struck a parked car. According to King, the damage reflected in the photographs indicated the vehicles collided at a roughly 10 to 20-degree angle, which was inconsistent with the greater-degree angle described by Walker. King opined that the front bumper on Rangel’s truck appeared to be pushed forward, and the contact damage to the front right fender of Walker’s cab was from front to back and pushed in slightly toward the rear, meaning Walker was traveling at a faster speed than Rangel and the vehicles impacted at a shallow angle. According to King, a greater angle of impact would have caused more of an indentation to the sheet metal of Walker’s cab and would have caused the front bumper of Rangel’s truck to be pushed in, not pulled out. He explained that evidence of where the vehicles came to rest after impact would be conclusive relative to the direction of force, but this evidence was unavailable because Walker moved her cab. King opined that Walker’s version of the accident was inconsistent with his review of the objective evidence, but the investigating officer’s diagram was consistent with his opinions. Specifically, King agreed with Officer Woods’s depiction that the first impact occurred at or near Walker’s right-rear door, and then Walker’s vehicle moved-up and pushed Rangel’s front bumper forward. King also testified that the photographs showed rubber transferred to Walker’s cab. He explained that if Rangel was turning her steering wheel hard during the collision, causing her tire to stick out, it would explain the rubber transfer. According to King, the fact that Rangel’s tire impacted Walker’s vehicle provided additional support for the claim that the accident did not occur at the intersection. King inspected the accident site and measured from the intersection at Roark Road to the location depicted on Officer Woods’s diagram reflecting where Rangel’s truck struck the parked car. King stated that these measurements supported his conclusion that the accident did not occur at the intersection. King further testified that if Rangel struck Walker at the intersection, the angle of impact would be at least 30 degrees. King agreed the investigating officer’s discovery of debris 30 or 40 yards from the intersection rendered it more probable that the accident occurred at that location, particularly if wind did not blow the debris. King admitted weather could have affected the debris, but conditions would necessarily be very windy for the debris to move 30 or 40 yards. Walker attacks the reliability of the data underlying King’s opinion testimony. Specifically, Walker argues: (1) King admitted he could not determine who made the accident-causing lane change or how fast the vehicles were traveling[4]; (2) King went to the accident site three years after the accident and did not see any vehicle debris or skid marks, or talk to any witnesses; (3) King never inspected the damaged vehicles, but was relegated to reviewing photographs, which he admitted could be very misleading; and (4) King admitted weather conditions could have altered where the debris was located after the accident. We note King also admitted that the best way to reconstruct an accident is through inspection of fresh physical evidence. King’s concessions regarding the limitations of photographs did not affect the reliability of his observations, but were factors relevant to the weight the jury gave King’s opinions based on his interpretation of vehicular damage in the photographs. See Keo v. Vu, 76 S.W.3d 725, 734 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (noting “factual weaknesses underlying an expert’s causation opinion generally go to the testimony’s weight, rather than its admissibility”). During cross-examination, King admitted the best method of determining causation would be through inspection of the scene and the vehicles shortly after the accident. See Exxon Corp. v. Makofski, 116 S.W.3d 176, 195 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (“Cross-examination remains ‘the traditional and appropriate means of attacking shaky but admissible evidence.’” (quoting Gammill, 972 S.W.2d at 728)). It was the province of the jury to decide how much weight to afford King’s opinion that the photographs reflect a side-to-side impact. Furthermore, King’s opinion that the accident did not occur at the intersection was supported by his review of photographs depicting damage to the respective vehicles and his inspection of the angle of the intersection. While reliable evidence supports King’s opinion that the accident resulted from a lane-change maneuver, King’s opinion that Walker’s vehicle entered the lane occupied by Rangel was unsupported. King readily admitted there was not enough evidence for an accident reconstruction expert to determine which vehicle changed lanes or how fast the vehicles were moving. He even agreed that it was possible Rangel’s vehicle entered the lane occupied by Walker’s vehicle. Such admissions rendered King’s lane-change opinion to be mere speculation, based on subjective interpretation of the evidence. See Ledesma, 242 S.W.3d at 39. Succinctly, King agreed an analytical gap existed between the evidence and his opinion that Walker drove her vehicle into a lane occupied by Rangel’s vehicle. See Gammill, 972 S.W.2d at 726. We also conclude King’s opinion that the accident most likely occurred where debris was located was unsupported by reliable data. King admitted the location of debris was directly related to the velocity of the vehicles and weather conditions, neither of which he could determine. He also admitted the location of Rangel’s car in the parking after the impact did not necessarily reflect the direction of force from the impact. Accordingly, we hold the trial court abused its discretion in admitting King’s conclusions that Walker drove into a lane occupied by Rangel’s vehicle and that the accident most likely occurred where vehicular debris was found. C. Harm Analysis Having held that the trial court erred in admitting certain of Officer Woods’s and King’s opinions, we now determine whether such errors were harmful. Even when an evidentiary ruling is erroneous, we will not reverse the court’s judgment unless the ruling probably caused rendition of an improper judgment. Tex. R. App. P. 44.1(a); Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004). The Supreme Court has recognized the impossibility of prescribing a specific test to determine whether a particular error is harmful, and entrusts that determination to the sound discretion of the reviewing court. McCraw v. Maris, 828 S.W.2d 756, 757–58 (Tex. 1992); Lorusso v. Members Mut. Ins. Co., 603 S.W.2d 818, 821 (Tex. 1980). “A reviewing court must evaluate the whole case from voir dire to closing argument, considering the ‘state of the evidence, the strength and weakness of the case, and the verdict.’” Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 871 (Tex. 2008) (quoting Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 841 (Tex. 1979)). “[I]t is not necessary for the complaining party to prove that ‘but for’ the exclusion of evidence, a different judgment would necessarily have resulted.” McCraw, 828 S.W.2d at 758. The complaining party must only show “that the exclusion of evidence probably resulted in the rendition of an improper judgment.” Id. The erroneous admission of evidence is likely harmless if the evidence was cumulative, or the rest of the evidence was so one-sided that the error likely made no difference in the judgment. Reliance Steel, 267 S.W.3d at 873. However, if erroneously admitted evidence was crucial to a key issue, the error is likely harmful. Id. In arguing an improper judgment resulted, Walker asserts Rangel’s counsel emphasized Officer Woods’s and King’s erroneously-admitted opinions during opening statement and closing argument. See Nissan Motor, 145 S.W.3d at 144 (considering counsel’s efforts to emphasize erroneous evidence in harm analysis). According to Walker, Rangel’s focus on these opinions was harmful because fault was hotly contested. Finally, Walker contends Officer Woods’s erroneously-admitted opinions had greater impact because he was a disinterested witness. See Nikoloutsos v. Nikoloutsos, 47 S.W.3d 837, 839 (Tex. App.—Beaumont 2001, pet. denied). We disagree with Walker’s assertion that Rangel focused on these opinions during opening statement and closing argument.[5] In fact, Rangel’s counsel emphasized King’s admission that he could not determine which vehicle changed lanes.[6] We further note that the trial court properly admitted King’s opinion that the vehicles collided during a lane-change maneuver which did not occur at or near the intersection. Nevertheless, causation is the pivotal issue on which this case turns. Despite King’s properly-admitted testimony supporting Rangel’s version, the erroneously-admitted opinions of Officer Woods and King were crucial to key issues of causation. See Reliance Steel, 267 S.W.3d at 873. Moreover, the potential harm associated with multiple proffers of inadmissible expert testimony by a disinterested, uniformed officer cannot be discounted. See Nikoloutsos, 47 S.W.3d at 839. There were four witnesses who testified regarding causation: Rangel, Walker, Officer Woods, and King. Of these four witnesses, two gave inadmissible testimony pertaining to causation that supported Rangel’s version of the accident. We hold erroneous admission of Officer Woods’s and King’s opinions probably resulted in rendition of an improper judgment. Accordingly, we sustain Walker’s sole issue. We reverse the trial court’s judgment and remand this case for a new trial. /s/ Charles W. Seymore Justice Panel consists of Chief Justice Hedges and Justices Seymore and Sullivan [1] Because the dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. [2] Dr. Karim was called by Walker at trial, but testified she did not see who caused the accident and did not know whether Walker was changing lanes. [3] King did not elaborate on Veda Cuffee’s identity or what her testimony entailed. [4] We construe Walker’s pre-trial argument that King admitted “there is not enough evidence” as an “analytical gap” objection. [5] The only erroneously-admitted testimony Rangel’s counsel emphasized was Officer Woods’s opinion that the accident occurred where the debris was found. [6] As discussed above, King testified during direct examination that Walker was the party who changed lanes, but admitted on cross examination he could not determine which party changed lanes.