Champion v. Great Dane LP,
NO. 14-08-00310-CV (Tex. App.-Houston [14th Dist.] May 7, 2009)(Frost)(product liability)
design defect, defective manufacturing)
TOMMY CHAMPION, Appellant V. GREAT DANE LIMITED PARTNERSHIP, Appellee
Affirmed and Opinion filed May 7, 2
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Cause No. 2005-52056
O P I N I O N
The underlying products-liability case arose from injuries sustained by appellant, a
truck driver, in attempting to unload a truck trailer manufactured by appellee. The
truck driver complains on appeal that the trial court erred in excluding testimony
from his expert witness as to the trailer’s alleged design defect and in granting a
motion for a directed verdict in favor of the manufacturer on the design-defect claim.
We affirm.
I. Factual and Procedural Background
Appellant Tommy Champion, a truck driver, filed suit against appellee Great Dane
Limited Partnership (hereinafter “Great Dane”) for injuries he sustained in an
incident involving a truck trailer manufactured by Great Dane. The trailer was owned
by Penske Trucking Leasing Company,[1] which leased the trailer to Champion’s
employer.
Great Dane designed and manufactured the refrigerated trailer according to
Champion’s employer’s specifications. The trailer had ridged flooring that allowed
cold air to circulate beneath the freight. An uncovered gutter[2] spanned the width
of the trailer in the rear, which allowed for condensation and liquids from leaky
freight to drain away from the freight. Liquids flowed into drainpipes on each side of
the gutter to prevent pooling. A “lift gate platform” was attached to the rear of the
trailer, which facilitated loading and unloading cargo. Champion had not used this
particular trailer before the incident in question.
On the day of the incident, Champion was transporting freight that did not require
refrigeration. He was scheduled to deliver pallets of freight to several locations. He
was supposed to use a pallet jack[3] to pull the load off of the trailer. At the first
location, Champion discovered the lift gate platform attached to the trailer was not
level. He noted on a vehicle inspection form that “this ramp needs to be fixed, drops
downhill.” During the course of Champion’s trip, he unloaded about twelve to fifteen
pallets before arriving at his last stop. He used a pallet jack to unload these pallets
and encountered no problems in crossing the trailer’s gutter, although he admitted
the pallets were relatively light. He explained at trial that in unloading these pallets, the
wheels of the pallet jack “hit” the gutter and “bumped” the gutter, so that the pallet jack
“bounced across” the gutter as he pulled cargo out of the trailer.
Champion’s last load was to be delivered to Filter Fresh Coffee in San Antonio, where he
was to unload four pallets. Although he unloaded the first two pallets without incident, he “hit”
the gutter both times. The third and fourth pallets contained bottled water and cans of coffee,
which were wrapped in plastic “shrinkwrap.” These pallets were heavier and stacked higher
than the other pallets. Champion slid the forks of the pallet jack under the third pallet and
used the pallet jack to lift the pallet off of the trailer’s floor. The pallet became unstable and
almost fell as he maneuvered to the lift gate platform. Champion attributed the unstable load
to the wheels of the pallet jack, which he claims became lodged in the trailer’s gutter. Filter
Fresh Coffee employees assisted Champion by removing some of the bottled water from the
pallet. He then moved the pallet into the Filter Fresh Coffee building.
In unloading the last pallet, Champion lifted and moved the pallet and approached the lift gate
platform from within the trailer. The wheels of the pallet jack fell into the gutter at the rear of
the trailer. The palletized load shifted, and Champion stabilized it with his hands. Champion
“wiggled” the load and then used the pallet jack hydraulics to lower the load. He pulled back
so that the pallet jack wheels were clear of the gutter and then lifted the load with the pallet
jack. Champion maneuvered onto the lift gate platform, where the pallet jack rolled 6-7
inches on its own. He then heard a “pop.”[4] The lift gate platform dropped several inches.
Champion lowered the load to prevent the pallet jack from rolling off the end of the lift gate
platform, and boxes fell from the pallet, hitting him in the head and knocking out some of his
teeth. He jumped off of the trailer and injured his heel, ankle, elbow and thumb. Champion
underwent numerous surgeries for his injuries.
Champion brought suit against Great Dane, among others, alleging causes of action for
negligence, strict liability for a design defect and marketing defect, breach of
warranty, and gross negligence. He complained that the trailer’s uncovered gutter
subjected him to an unreasonable risk of harm. At trial, Champion sought to elicit testimony
from an expert witness regarding alleged marketing and design defects of the trailer’s gutter.
The expert witness testified briefly; however, the trial court excluded the expert’s testimony as
to defective design and permitted the expert to testify only for marketing defect.
At the close of Champion’s evidence,[5] by oral motion, Great Dane moved for a directed
verdict on Champion’s defective-design claim. Great Dane argued that Champion failed to
produce evidence of a safer alternative design for the trailer’s gutter and that had the safer
alternative design existed, Champion presented no evidence that it would have prevented the
injuries he sustained. The trial court granted this motion.
The trial court submitted questions to the jury on Champion’s marketing-defect and
negligence claims. The jury returned a verdict in favor of Great Dane, concluding that
Champion was 100% negligent and responding "no” to a question regarding marketing
defect. The trial court entered a "take nothing” judgment in favor of Great Dane, confirming
the jury’s verdict. Champion now appeals, asserting that the trial court erred in excluding the
expert’s testimony and in granting Great Dane’s motion for directed verdict.
II. Issues and Analysis
A. Did the trial court err in granting a directed verdict for the manufacturer on the
issue of design defect?
In his first issue, Champion argues that the trial court erred in granting Great Dane’s
oral motion for a directed verdict on the issue of design defect.
A trial court may instruct a verdict in favor of a defendant if no evidence of probative
force raises a fact issue on the material questions in the suit. See Prudential Ins. Co.
of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). A directed verdict in
favor of a defendant may be proper when (1) a plaintiff fails to present evidence
raising a fact issue essential to the plaintiff’s right of recovery; or (2) the plaintiff
admits or the evidence conclusively establishes a defense to the plaintiff’s cause of
action. See id. We review the trial court’s granting of a directed verdict by following
the same standard for assessing legal sufficiency of the evidence. See City of Keller
v. Wilson, 168 S.W.3d 802, 809-828 (Tex. 2005). When reviewing the legal sufficiency
of the evidence, we consider the evidence in the light most favorable to the
nonmovant and indulge every reasonable inference that would support the verdict.
Id. at 823. When reviewing a directed verdict, we must credit favorable evidence if a
reasonable factfinder could and disregard contrary evidence unless a reasonable
factfinder could not. See id. at 827.
In his live petition, Champion alleged, among other things, strict liability in design
defect of the trailer’s “uncovered floor gutter at the rear of the trailer that interfered
with the transportation of loads out of the trailer.” A design defect renders a product
unreasonably dangerous as designed, thereby warranting strict liability, when
taking into consideration the utility of the product and the risk involved in its use.
See General Motors Corp. v. Sanchez, 997 S.W.2d 584, 588 (Tex. 1999).
To establish a design defect, Champion had to show by a preponderance of the
evidence that (1) there was a safer alternative design; and (2) the defect was the
producing cause of the personal injury. Tex. Civ. Prac. & Rem. Code Ann. §82.005(a)
(Vernon 2005). A “safer alternative design” under section 82.005[6] of the Texas
Civil Practice and Remedies Code means that a product design other than the one at
issue would have prevented or significantly reduced the risk of injury without
substantially impairing the product’s utility and that the safer alternative design was
both technologically and economically feasible when the product left the control of
the manufacturer. Id. §82.005(b); see Sanchez, 997 S.W.2d at 588. Generally, the
requirements to prove a design defect necessitate competent expert testimony and
objective proof that a defect caused the injury. See Nissan Motor Co., Ltd. v.
Armstrong, 145 S.W.3d 131, 137 (Tex. 2004) (concluding this premise was not
peculiar to unintended acceleration cases); DeGrate v. Executive Imprints, Inc., 261
S.W.3d 402, 410-11 (Tex. App.-Tyler 2008, no pet.) (providing that an expert’s
conclusory statements as to design defect are not competent evidence and are
insufficient to defeat or support summary judgment for design defect).
Great Dane moved for a directed verdict, alleging that Champion offered no evidence
of a safer alternative design that was both technologically and economically feasible
when the trailer left Great Dane’s control in 1999. Great Dane also alleged that
Champion offered no evidence that a safer alternative design, had it existed, would
have prevented Champion’s injuries. The trial court granted Great Dane’s motion.
At trial, Champion sought to show that the trailer was defectively designed because
of the hazard created when the wheels of a pallet jack became lodged in the trailer’s
rear gutter in the course of loading and unloading cargo.[7] On appeal, Champion
maintains that he produced evidence of safer alternative designs because James
Hofstetter, Great Dane’s Vice President of Product Safety and Compliance, testified
that Great Dane manufactures refrigerated trailers without any gutters or with gutters
located in the front of the trailer. He also points to testimony from both Hofstetter
and Greg Scoggins, another representative for Great Dane, who testified about
"dock plates”[8] that cover the gutters in refrigerated trailers. Finally, as evidence of
a safer alternative design, Champion points to his own testimony about his
experience in the 1970s and 1980s driving a refrigerated trailer with a mesh grate
that covered the rear gutter, a trailer that was not manufactured by Great Dane.[9]
1. Alternative Designs of a Trailer Without Any Gutters or with No Rear Gutter
As evidence of an alternative design, Champion points to Hofstetter’s testimony that
a refrigerated trailer without any gutters would have reduced or eliminated the risk of
injury in this case. Although Hofstetter testified that, at a customer’s request, Great
Dane had manufactured a refrigerated trailer with flat flooring and no gutters, that
design was an entirely different class of flooring for refrigerated trailers, and unlike
the trailer in this case, which featured ridged flooring. See, e.g., Allen v. W.A. Virnau
& Sons, Inc., 28 S.W.3d 226, 232B33 (Tex. App.-Beaumont 2000, pet. denied)
(providing that safer alternative design did not diminish utility of product involving
same model tractor). Furthermore, Scoggins testified that a trailer without any gutter
is not feasible in this type of trailer with ridged flooring. See Tex. Civ. Prac. & Rem.
Code Ann. §82.005(b)(2) (requiring technological and economic feasibility for an
alternative design); Smith v. Aqua-Flo, Inc., 23 S.W.3d 473, 477 (Tex. App.-Houston
[1st Dist.] 2000, pet. denied) (requiring separate proof for technological and
economic feasibility); see also Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d
328, 335 (Tex. 1998) (providing that a safer alternative design must be implemented
without destroying the utility of the product). Champion claims he is entitled to a
reasonable inference as to economic feasibility of this design even though he
acknowledges in his appellate brief that Hofstetter did not explicitly testify regarding
the economic feasibility of a refrigerated trailer without any gutters. But because
technological feasibility and economic feasibility are different concepts, separate
proof is required for each. See Smith, 23 S.W.3d at 477. Champion points to no
other evidence that an alternative design of a refrigerated trailer with this type of
ridged flooring but without any gutters was either technologically or economically
feasible when it left Great Dane’s control in 1999. See Tex. Civ. Prac. & Rem. Code
Ann. §82.005(b)(2) (requiring technological and economic feasibility); Smith, 23 S.W.
3d at 477 (requiring separate proof for technological and economic feasibility).
On this record, Champion has not produced evidence to show that this alternative
design would be a safer alternative design as contemplated by section 82.005(b).
See Tex. Civ. Prac. & Rem. Code Ann. §82.005(b); Smith, 23 S.W.3d at 480-81
(concluding directed verdict on design-defect claim was proper); see also General
Motors Corp. v. Harper, 61 S.W.3d 118, 130, 133 (Tex. App.-Eastland 2001, pet.
denied) (concluding evidence was legally insufficient to support a safer alternative
design).
Champion claims he is entitled to a reasonable inference from the evidence that an
alternatively designed trailer without a rear gutter would have reduced or eliminated
the risk of pallet-jack wheels “falling” into the rear gutter. Champion’s contention
that utilization of this alternative design might have avoided injuries does not prove
that the trailer was defective. See Harper, 61 S.W.3d at 124-25. In reference to the
feasibility of an alternative design with only a front gutter and no rear gutter,
Hofstetter testified that customers should be told of potential problems that may
arise without a drain in the rear. Hofstetter acknowledged one problem with this
design is that because the trailer naturally slopes downward toward the rear, liquid
can pool there. Hofstetter explained that without a rear gutter to drain the liquid, the
trailer’s refrigeration system may cause the liquid to freeze, which would pose a
potential hazard for slipping or falling. As a general rule, a manufacturer should not
be liable for failing to adopt an alternative design that, in some circumstances, would
impose an equal or greater risk of harm. See Uniroyal Goodrich Tire Co., 977 S.W.2d
at 337-38. To prevail on his design-defect claim with this alternative design,
Champion was required show that the safety benefits from his proposed alternative
design would not impose an equal or greater risk of harm. See id. The safety
benefits of the alternative design must be “foreseeably greater than the resulting
costs, including any diminished usefulness or diminished safety.” Id. Champion
has not pointed to any evidence that the safety benefits from this proposed
alternative design would not impose an equal or greater risk of harm. See id. at 338.
Champion has not offered evidence to demonstrate that the alternative design was
as safe as the current design in terms of protecting from risk of injury. See Harper,
61 S.W.3d at 124-25. Furthermore, Champion points to no other evidence in the
record that establishes this alternative design would reduce the risk of injury without
substantially impairing the utility of the gutter for this trailer with ridged flooring. See
Tex. Civ. Prac. & Rem. Code Ann.§82.005(b)(1); Harper, 61 S.W.3d at 128
(“Unsupported statements that an alternative design would be safer is not
evidence.”). Champion has not met the burden of showing that this alternative
design would be a safer alternative design as contemplated by section 82.005(b).
See Tex. Civ. Prac. & Rem. Code Ann. §82.005(b); see also Smith, 23 S.W.3d at 480
(affirming directed verdict granted on design defect claim); Harper, 61 S.W.3d at 130.
2. Alternative Designs of a Trailer with a Covered Gutter
Champion claims he is entitled to a reasonable inference from the evidence that an
alternatively designed trailer with a covered rear gutter would have reduced or
eliminated the risk of pallet-jack wheels “falling” into the rear gutter. He points to his
own trial testimony that a steel mesh covering[10] like the covering he saw in the
1970s would have reduced the risk of the hazard. However, Champion
acknowledged that the trailer in the 1970s was not manufactured by Great Dane and
that he did not use a pallet jack to unload cargo at that time. See, e.g., Allen, 28 S.W.
3d at 232-33 (involving safer alternative design implemented on same model tractor);
see also Harper, 61 S.W.3d at 127 (concluding a test constituted no evidence that an
alternative design for seat-belt webbing would protect a driver from the principal risk
of impacting a steering wheel when test did not involve steering wheels or steering
columns). The fact that another manufacturer uses an alternative design may be
evidence of the technical feasibility of that design. See Honda of Am. Mfg., Inc. v.
Norman, 104 S.W.3d 600, 607 (Tex. App.-Houston [1st Dist.] 2003, pet. denied).
However, economic feasibility refers to the cost of producing a particular design. Id.
Absent testimony that an alternative design is economically feasible, evidence
suffices to support a directed verdict. Smith, 23 S.W.3d at 477. Even if we were to
presume without deciding that Champion was a qualified witness to testify to this
alternative design, both Hofstetter and Scoggins rejected the technological and
economical feasibility of a metal grate covering in refrigerated trailers designed by
Great Dane.[11] See Smith, 23 S.W.3d at 477 (requiring separate proof for
technological and economic feasibility); see also Nissan Motor Co., Ltd., 145 S.W.3d
at 137 (indicating that expert testimony may be necessary to prove a design defect).
Hofstetter testified that a steel or aluminum grate for gutters in Great Dane’s trailers
was neither technologically nor economically feasible because such metals posed
problems of corrosion, added extra weight, and would need to be very thick to
sustain heavy loads. Champion does not point to any other evidence that such
grates would be technologically or economically feasible in 1999, when this trailer
left Great Dane’s control. See Tex. Civ. Prac. & Rem. Code Ann. §82.005(b)(2); Smith,
23 S.W.3d at 478. Therefore, Champion has not shown that this alternative design
would be a safer alternative design under section 82.005(b). See Tex. Civ. Prac. &
Rem. Code Ann. §82.005(b); Smith, 23 S.W.3d at 480; see also Harper, 61 S.W.3d at
130.
Finally, Champion claims that use of the “dock plates” manufactured by Great Dane
would have reduced or eliminated the risk of injury. However,”[u]nsupported
statements that an alternative design would be safer is no evidence.” Harper, 61 S.
W.3d at 128. At trial, Hofstetter testified that alternative designs to prevent pallet jack
wheels from “falling” into the gutter could not be implemented without seriously
affecting the utility of the trailer’s ridged floor. Hofstetter admitted that it was
technologically and economically feasible to manufacture dock plates, because
Great Dane manufactures such devices for other purposes, and installs them only at
a customer’s request. However, Hofstetter and Scoggins each explained that dock
plates are evenly spaced across the threshold of the gutter, but not spanning the
entire gutter. No evidence reflects that the use of dock plates, when used as
intended and spaced evenly over the gutter, would reduce or eliminate the hazard of
pallet-jack wheels “falling” into the gutter. See Tex. Civ. Prac. & Rem, Code Ann. §82.
005(b)(1); see, e.g., Harper, 61 S.W.3d at 130. Therefore, Champion has not
produced evidence to show that this alternative design, featuring dock plates
spaced evenly across the gutter’s threshold, would be a safer alternative design as
contemplated by section 82.005. See generally Tex. Civ. Prac. & Rem Code Ann. §82.
005; see also Harper, 61 S.W.3d at 130. To the extent that Champion suggested at
trial that dock plates may be used to cover the gutter entirely, when shown a picture
of a gutter with a solid metal cover over the entire gutter, Hofstetter indicated that
such a design was not technologically feasible because the drains and gutter need
to be accessible for cleaning or else liquid will collect in the floor and freeze.[12] See
Uniroyal Goodrich Tire Co., 977 S.W.2d at 337 (providing that a manufacturer should
not be liable for failing to adopt an alternative design that would impose an equal or
greater risk of harm); see also Tex. Civ. Prac. & Rem. Code Ann.§82.005(b)(2)
(requiring feasibility). On this record, no evidence reflects that the use of dock plates
to cover the gutter entirely is a safer alternative design under section 82.005(b). See
Tex. Civ. Prac. & Rem. Code Ann.§82.005(b); Smith, 23 S.W.3d at 480; see also
Harper, 61 S.W.3d at 130.
Furthermore, the record contains no expert testimony that any of the proposed
alternative designs satisfied both requirements of subsection 82.005(b) as a safer
alternative design. See Nissan Motor Co., Ltd., 145 S.W.3d at 137; see also Tex. Civ.
Prac. & Rem. Code Ann. §82.005. Even presuming without deciding that Champion
has met the requirements of section 82.005(b), the requirements to prove a design
defect generally necessitate competent expert testimony and objective proof that a
defect caused the injury. See Nissan Motor Co., Ltd., 145 S.W.3d at 137. Although
Champion suggested at submission that no expert witness was necessary, as
discussed above, no lay witness testimony established that any of these alternative
designs would meet all of the requirements of section 82.005 - particularly in light of
Champion’s own testimony at trial that (1) the trailer’s ridged flooring and gutter did
not have any influence over his pallet jack or whether it would roll toward him; and
(2) had the lift gate platform not malfunctioned, the accident would not have
occurred.[13] See Tex. Civ. Prac. & Rem. Code Ann.§82.005(a)(2) (requiring proof of
producing cause). In this case, no expert evidence established that the trailer or
gutter was the producing cause of Champion’s injuries, as contemplated by
subsection 82.005(a)(2)”especially when considering evidence in the record that
Champion’s palletized load stabilized after encountering the gutter and before it was
maneuvered onto the lift gate platform. See id.
Therefore, because on this record, no evidence of probative force raised a fact issue
on the material questions as to design defect, the directed verdict in favor of Great
Dane was proper. See Prudential Ins. Co. of Am., Inc., 29 S.W.3d at 77; Smith, 23 S.W.
3d at 480. Accordingly, we overrule Champion’s first issue.
B. Did the trial court commit reversible error in excluding expert testimony?
In his second issue, Champion argues the trial court abused its discretion in
excluding the testimony of expert witness, Dr. Waymon Johnston, regarding design
defect. Dr. Johnston testified briefly; however, the trial court excluded his testimony
as to defective design and permitted him to testify only about marketing defects and
warnings. Dr. Johnston’s deposition testimony, however, was included in the
record for our review.
The trial court has broad discretion to determine the admissibility of evidence; 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. Strauss v. Cont’l Airlines, Inc., 67 S.W.
3d 428, 448 (Tex. App.-Houston [14th Dist.] 2002, 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 the admissibility of the
testimony. See E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 557
(Tex. 1995).
Champion argues that the trial court excluded the expert’s testimony for the
improper reason that Dr. Johnston could not offer an opinion as to whether the
proposed safer alternative designs were technologically and economically feasible
or could reduce or eliminate risk without substantially impairing the product’s utility,
as contemplated by section 82.005(b). According to Champion, an expert was not
required to provide testimony on those elements because he offered this proof
through his own testimony and through Great Dane’s representatives. To the extent
that we have determined above that Champion did not present this evidence under
section 82.005(b) through testimony from Champion or Great Dane’s
representatives, the requirements of design defect generally necessitate competent
expert testimony and objective proof that a defect caused the injury. See Nissan
Motor Co., 145 S.W.3d at 137; DeGrate, 261 S.W.3d at 410-11. We, therefore, consider
whether Dr. Johnston was qualified to offer an opinion as to defective design.
The party calling the witness must show the expert is qualified by having
“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. abated). 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. Broders v. Heise, 924 S.W.2d 148, 150-54 (Tex. 1996).
Champion asserts that the trial court incorrectly framed the issue in evaluating Dr.
Johnston’s qualifications by requiring Dr. Johnston to be an expert in all aspects of
refrigerated trailer design. Champion argues that the focus of this case was about a
particular design feature, the uncovered gutter of the trailer, and that Dr. Johnston
was well-qualified to discuss potential hazards associated with truck drivers
crossing the uncovered gutter in the course of a job duty. The record reflects that
the trial court engaged in a lengthy discussion with the parties outside of the jury’s
presence about the admissibility of Dr. Johnston’s testimony for design defect. In
this exchange, the trial court characterized this case as involving Aa refrigerated
trailer with a specialized flooring system and specialized drainage needs.” On this
basis, the trial court did not require Dr. Johnston to be an expert in all aspects of
refrigerated trailer design.
Dr. Johnston holds advanced degrees in industrial engineering and an
undergraduate degree in mechanical engineering. He is an expert in product safety
engineering and human factors engineering. Over the course of a twenty-four year
career as the head of the Safety Engineering Program at Texas A&M University, Dr.
Johnston taught more than one thousand graduate and undergraduate students in
the fields of industrial safety engineering, product safety engineering, and human
factors engineering. In that capacity, he taught those students how to properly and
safely design all types of products for the workplace.
Dr. Johnston equated the hazard posed in this caseCi.e., pallet-jack wheels falling
into the uncovered rear gutterCwith similar hazards he had examined, including a
gutter or crack in a sidewalk or walking surface in which a child’s roller blade or
wheel could become lodged, or a wheel chair ramp. Dr. Johnston characterized the
hazard in this case as “nothing more than a gap in a walking surface, a surface that
truck drivers have to walk across and also have to run dollies and so forth.” His
solution was to cover or fill the gutter. Dr. Johnston acknowledged that he had not
designed and did not intend to design a safer alternative. Champion sought to use
Dr. Johnston’s testimony to establish that the alternative designs, as previously
described at trial by Hofstetter and Champion, met the requirements of section
82.002(b) in substantially reducing or eliminating the risk of injury.
As with one of the experts in the products-liability case Gammill v. Jack Williams
Chevrolet, Inc., Dr. Johnston in this case is not qualified to offer testimony as to any
alleged design defect with the trailer’s uncovered rear gutter.[14] See 972 S.W.2d at
719. “Just as not every physician is qualified to testify as an expert in every medical
malpractice case, not every mechanical engineer is qualified to testify as an expert in
every products liability case.” Id. Dr. Johnston may have demonstrated his
experience in designing workplace products and in designing solutions for hazards
in walking surfaces, but he was not shown to have any training, experience, or
special knowledge in the design or manufacture of refrigerated trailers or their
relevant components, i.e, the rear uncovered gutter of refrigerated trailers that
served a particular purpose for the trailer’s drainage. See id. at 718.
Although Dr. Johnston held the same undergraduate degree in mechanical
engineering as some of Great Dane’s engineers, this degree did not demonstrate
that Dr. Johnston possessed specialized knowledge about the refrigerated trailer’s
uncovered gutter and drainage system. See id. (requiring an expert to possess
special knowledge on the very matter for which the opinion is offered). Dr. Johnston’
s deposition revealed that he had participated in cases with accidents involving
pallet jacks and loading or unloading cargo in trailers. However, he had no
experience or specialized knowledge involving uncovered gutters or alternative
designs for the gutters in refrigerated trailers. On this record, Dr. Johnston was not
shown to have any expertise that would qualify him to testify about any alleged
design defects in a refrigerated trailer’s uncovered gutter or the proposed alternative
designs. See id.
Dr. Johnston demonstrated no specialized knowledge regarding the particular
design of this uncovered gutter, and, accordingly, his testimony as to Champion’s
proposed alternative designs did not rise above mere speculation. See Broders, 924
S.W.2d at 150-54. For this reason, Dr. Johnston was not qualified to offer an opinion
as to any alleged design defect of the gutter at issue. See Tex. R. Evid. 702; Gammill,
972 S.W.2d at 719. Therefore, the trial court did not abuse its discretion in excluding
Dr. Johnston’s testimony as to design defect. See Gammill, 972 at 719. Because we
conclude Dr. Johnston was not qualified under Rule 702, we do not address the
merits of whether the trial court assessed the expert’s reliability under an improper
standard. Accordingly, we overrule Champion’s second issue.
Having overruled Champion’s two issues on appeal, we affirm the trial court’s
judgment.
/s/ Kem Thompson Frost
Justice
Panel consists of Chief Justice Hedges, Justice Frost, and Senior Justice Hudson.*
--------------------------------------------------------------------------------
[1] Although Champion also asserted claims against Penske and another party, the record
reflects that Champion accepted settlement offers from those two parties and that the
claims against those parties were dismissed with prejudice.
[2] The parties used the terms “gutter” or "drain” interchangeably in reference to this
open space. For consistency, we use the term “gutter.” The gutter measured
approximately 2-1/3 inches wide and 1-1/4 inches deep.
[3] The parties refer to a pallet jack as a manually-operated piece of equipment that allows
a single operator to place fork-like arms beneath a pallet, lift the pallet with the aid of
hydraulics, and move the pallet on small wheels.
[4] Although he could not determine the source of the noise, Champion said the noise
could have been attributed to kinks in the chain that attached the lift gate platform to the
trailer.
[5] Champion had rested subject to calling Champion’s wife as a witness the following day.
[6] Unless otherwise specified, all references to a “section” are to the Texas Civil Practice
and Remedies Code.
[7] The record reflects that Great Dane representatives discouraged use of pallet jacks on
the type of ridged flooring found in this refrigerated trailer because the pallet jacks
damaged the floor. Great Dane manufactures refrigerated trailers with flat floors intended
for use with pallet jacks.
[8] Although at trial the parties referred to two different kinds of dock plates used by
trailers, a “dock plate” as used in this circumstance is an L-shaped piece of metal that is
several inches wide. The shorter piece of metal rests in the gutter of the trailer, and the
longer piece covers the open gutter and is tack-welded to the trailer’s ridged floor. The
dock plates are evenly spaced across the threshold of the gutter to cover the gutter in
spots, but not entirely. The dock plates were designed by Great Dane to protect the edges
of the ridged flooring where the ridged flooring meets the gutter when loading and
unloading cargo at a warehouse loading dock.
[9] At submission, Champion made reference to a fifth alternative design, filling the gutter
with square boxed tubing. Champion claims evidence of this design was raised at trial
through the testimony of a representative of the manufacturer of the lift gate platform.
However, Champion, in his appellate brief, neither identified nor addressed this fifth
alternative design and he has provided no analysis or citations to the record or legal
authorities as to this alternative design. Therefore, Champion has waived this issue. See
Tex. R. App. P. 38.1(h); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.-
Houston [14 Dist.] 2005, no pet.) (holding that, even though courts interpret briefing
requirements reasonably and liberally, a party asserting error on appeal still must put forth
some specific argument and analysis citing the record and authorities in support of the
party’s argument).
[10] Champion described this alternative design at trial as a piece of steel or “wire mesh”
with diamond-shaped square holes.
[11] Champion’s attorney questioned Hofstetter about an alternative design involving a
metal grate, made of aluminum or steel, which he described as being similar to a grate
used in a barbecue pit.
[12] Furthermore, Hofstetter could not determine from the picture whether the trailer in
the photo had ridged flooring like the trailer at issue in this case. At submission, Champion
suggested that Great Dane could have manufactured wider dock plates to span the length
of the gutter, leaving only the ends of the gutter near the drain exposed. Champion does
not point to evidence in the record that this design was raised as an alternative design at
trial. Likewise, Champion did not identify this alternative design in his appellate brief nor
address how this design meets the requirements of section 82.005. See Tex. R. App. P. 38.1
(h); San Saba Energy, L.P., 171 S.W.3d at 338.
[13] In his appellate brief, Champion points to his testimony at trial that the accident would
not have occurred if the rear gutter had been covered. This testimony was in reference to
the steel grate like the one he saw in the 1970s. As discussed above, Champion did not
produce evidence to establish that this alternative design met the requirements of section
82.005.
[14] In contrast, a second expert witness in Gammill was shown to be qualified to testify
about defects concerning a rear seat belt of the automobile at issue. See Gammill, 972 S.
W.2d at 719. Although this second expert in Gammill, a licensed engineer, had a long
academic career, similar to Dr. Johnston in this case, this second expert researched
vehicle restraint systems, including systems like the one at issue, and had published
articles on the subject. See id. This expert testified in numerous cases involving
allegations of seat belt defects. See id. We factually distinguish Dr. Johnston from this
expert in Gammill because, as shown in his deposition testimony, Dr. Johnston had not
conducted research on uncovered gutters in refrigerated trailers, nor had he published
articles on the subject or testified in any cases involving this type of allegation. See id.
* Senior Justice J. Harvey Hudson sitting by assignment.