Catherine Church, Richard H. Church and Sheila P. Church v. Exxon Mobile Company

SUPREME COURT CASES

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State: Texas

Court: Texas Northern District Court

Docket No: 01-11-00802-CV

Case Date: 11/01/2012

Plaintiff: Catherine Church, Richard H. Church and Sheila P. Church

Defendant: Exxon Mobile Company

Preview:Opinion issued November 1, 2012.

In The

Court of Appeals
For The

First District of Texas
---------------------- NO. 01-11-00802-CV ---------------------- CATHERINE CHURCH, RICHARD H. CHURCH, AND SHEILA P. CHURCH, Appellants V. EXXON MOBIL CORPORATION, Appellee

On Appeal from the 61st District Court Harris County, Texas Trial Court Case No. 2009-66696

MEMORANDUM OPINION Catherine Church and her parents, Richard H. Church and Sheila P. Church, appeal a take-nothing judgment rendered in favor of ExxonMobil Corporation. Catherine, then a minor, was injured when a restroom sink in an Exxon gas station

and convenience store fell to the floor and shattered, severing her Achilles tendon. The jury found Catherine was negligent and ExxonMobil was not, and the trial court rendered judgment that the Churches take nothing. The Churches raise three issues on appeal. They contend that the trial court erred by admitting

ExxonMobil's expert's testimony because it was conclusory and speculative. They also contend that the evidence was legally and factually insufficient to support the jury's finding that Catherine was negligent, and that the evidence conclusively proved that ExxonMobil was negligent. Finding no error, we affirm. Background Catherine Church had been to the beach in Galveston with friends and was on her way home when one of the friends, Brittney Schoen, needed to use the restroom. They stopped at an Exxon gas station owned by ExxonMobil

Corporation, and Catherine and Brittney went into the women's restroom. As Brittney used the facilities, Catherine leaned against the restroom sink. The sink fell off the wall and shattered when it hit the floor. A shard from the sink cut Catherine's leg, severing her Achilles tendon. This incident led the Churches to bring a premises liability claim against ExxonMobil. The evidence at trial showed that there was no apparent problem with the sink or the manner in which it was installed. Neither Catherine nor Brittney noticed anything wrong with the sink before it fell. 2 Similarly, ExxonMobil

introduced a photograph of the sink in the men's restroom, which was installed at the same time and in a similar manner to the sink in women's restroom, and it also appeared normal, with no indication of any problem. ExxonMobil also introduced evidence of its "mystery shopper" program. A mystery shopper is hired by an independent, third-party company to visit ExxonMobil locations and perform an incognito inspection of each store's condition and its employee's conduct. Approximately ten days before Catherine's accident, a mystery shopper had visited the gas station and noted no problems with the women's restroom. A photograph of the sink taken by the mystery shopper did not reveal any apparent problems with the sink or its installation. The Churches and ExxonMobil presented competing experts to render opinions about how the incident occurred. The Churches' expert was Thomas Scott, a safety consultant, who sponsored what came to be called the "teeter-totter" theory to explain how the sink fell. Scott explained that the sink sat on a wall bracket, with metal "ears" of the bracket sliding into "pockets" on the sink. The sink also had holes for "anchor screws, which, if installed, would pass through the holes in the sink and into the wall. The sink that fell, however, did not have the anchor screws installed. Scott opined that as Catherine leaned on the right side of the sink, the left side was lifted, rising sufficiently to clear the ear of the wall bracket, and then the sink was able to fall. Scott also opined that if the anchor 3

screws had been installed, the sink would not have been able to teeter-totter and fall. Scott pointed out that the sink manufacturer's instructions stated anchor screws should be installed, the anchor screws were not installed on this sink, and the failure to install the anchor screws created "a safety risk for the public" and a "substantial hazard." Scott also testified that, in his opinion, ExxonMobil should have known about the improper installation and did not have an adequate inspection process for discovering this type of problem. ExxonMobil presented Ed Jensen, a professional engineer and safety consultant. Jensen testified that when he looked at a photograph of the restroom taken a day or two after the accident, he noticed that the right ear on the wall bracket was bent. He thought this significant and it became a focus of his

investigation and testimony. After doing some background research on the sink, including contacting the manufacturer for technical data, Jensen conducted a series of experiments on newly-purchased sinks of the same model as the one that injured Catherine, to see whether and under what conditions the sink would "fail"--that is, fall or break in a manner similar to what Catherine described. Jensen started with sinks of the same model as the one involved in this accident. The bracket that came with it seemed too thin and did not appear to be similar to the bracket in the photograph of the restroom. He contacted the

manufacturer and was able to obtain a bracket that appeared to be the same as the 4

one in the photograph. He attached the bracket to a two-by-ten board that was attached to two heavy duty workstands (similar in appearance to a sawhorse). Jensen then mounted the sink to the bracket. Jensen loaded the sink with weights. In his first experiment, the bracket was attached to the two-by-ten by all mounting bolts and the sink did not have the anchor screws installed. Jensen gradually loaded weight on the front center of the sink. He gradually increased the weight to 150 pounds, but he observed no

damage or bending to the sink or wall bracket. Next, he placed 150 pounds on the right corner of the sink. Again, he observed no damage or bending. Jensen then removed one bolt from the mounting bracket, because the photograph of the bracket after Catherine's accident showed one bolt missing from the bracket. In that experiment, he continued loading weight onto the front right corner in increments of ten to twenty pounds. Neither the sink nor the bracket suffered any bending or damage until Jensen loaded 220 pounds, when the sink broke--that is, the porcelain material of the sink cracked and the sink fell. A small piece of the sink remained mounted on the left ear; the rest fell forward and to the right. A photograph after this experiment shows the right ear of the wall bracket bent in a manner similar to the ear on the bracket in ExxonMobil's gas station. Having caused the sink to fail in what he opined was a similar manner to Catherine's accident, Jensen "didn't really have a plan" for his remaining 5

experiments. First, he performed the same test as the one that caused the sink to fail, but this time he installed all the bolts in the mounting bracket. The sink did not fail until 330 pounds had been stacked on the front right corner. Next, he used all the mounting bolts and the two anchor screws. He dropped 120 pounds from a height of six inches onto the front right corner. The sink did not break or fall, but "rattled back and forth a little bit," and the bracket bent slightly. Finally, Jensen put all the mounting bolts and anchor screws in the last sink and loaded it with weights; it did not fail until 320 pounds had been loaded. With the anchor screws in place, the sink simply broke where it was attached to the bracket and did not bend the bracket. Based on his experiments, Jensen concluded the accident could not have occurred as Catherine said it did. He based this opinion primarily on the fact that the evidence showed Catherine weighed 120 or 125 pounds, but the sink in his experiment was not damaged or affected by a similar weight. Rather, it took significantly more weight to cause the sink to fail. He opined that some force had to be applied to the sink that would not be present if Catherine were merely leaning against the sink. He stated that for Catherine, weighing about 120 pounds, to generate the force that broke the sink, it would be something equivalent to hopping up on the sink, although he acknowledged he could not say that that in fact happened. Jensen also opined that the lack of anchor screws did not cause the sink 6

to fall. He explained that the anchor screws were "more of a security issue, so somebody doesn't come in there and lift [the sink] up off the mounts." The Churches' counsel subjected Jensen to a vigorous cross-examination. Counsel, through his questioning, identified several areas in which there was a disconnect between Jensen's experiments and the evidence in the case. One of the most significant criticisms was that Jensen's experiment ignored Catherine's and Brittney's testimony. They testified that Catherine leaned against the sink, and thus generated some lateral force, not simply downward force. Jensen's

experiment, by gradually stacking weights on the edge of the sink, applied only downward force and no lateral force against the sink. Likewise, the Churches' counsel pointed out that the sinks and brackets Jensen used in his experiments were brand new, while the sink at the gas station was installed fifteen years before Catherine's accident. The photograph of the restroom after the accident also did not show any part of the sink remaining on the bracket as occurred during Jensen's test. And Jensen's test sink was not attached to water or drain lines, as was the sink in the restroom. On cross-examination, Jensen also acknowledged that the anchor screws would have prevented the sink from lifting up off the ears of the bracket and that the ear could have been bent if the opposite side of the sink had risen far enough to lift off the bracket. During his testimony, Scott, the Churches' expert, had also criticized Jensen, stating that he had no problem with how Jensen 7

conducted his tests; rather, he stated that Jensen's tests "had nothing to do with the case," because Jensen had not performed a test similar enough to the actual conditions to simulate what had occurred. The jury, in response to the first question in the charge, unanimously found that ExxonMobil's negligence, if any, was not a proximate cause of the occurrence or injury and that Catherine's negligence was. The jury accordingly did not

answer any other questions. The trial court rendered a take-nothing judgment in favor of ExxonMobil, and the Churches appealed. Sufficiency of Jensen's Testimony In their first issue, the Churches contend that the trial court erred by admitting Jensen's opinion testimony "because his opinions were conclusory and speculative, and therefore legally insufficient to support the jury's finding that Plaintiff was negligent and Defendant was not negligent." ExxonMobil responds that this issue is waived because it was not timely raised before the trial court. Specifically, ExxonMobil contends that the Churches are not challenging the expert testimony as conclusory--a challenge that may be raised for the first time on appeal. ExxonMobil argues that the Churches, although they call it an objection that the opinion is conclusory, are actually challenging the reliability of the expert's opinion. Such a challenge, they argue, may not be raised for the first time on appeal, but must be raised before trial or when the evidence is offered. 8

A.

Preservation of Challenges to Expert Testimony "To preserve a complaint that scientific evidence is unreliable and thus, no

evidence, a party must object to the evidence before trial or when the evidence is offered." Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998). The Texas Supreme Court has re-visited the Maritime rule in Coastal Transp. Co. v. Crown Central Petroleum Corp., 136 S.W.3d 227 (Tex. 2004) and City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009). In Pollock, the supreme court reemphasized that complaints about an expert's methodology, technique, or foundational data, must be made in the trial court: [There is] a distinction between challenges to an expert's scientific methodology and no evidence challenges where, on the face of the record, the evidence lacked probative value. When the expert's underlying methodology is challenged, the court necessarily looks beyond what the expert said to evaluate the reliability of the expert's opinion. When the testimony is challenged as conclusory or speculative and therefore non-probative on its face, however, there is no need to go beyond the face of the record to test its reliability. We therefore conclude that when a reliability challenge requires the court to evaluate the underlying methodology, technique, or foundational data used by the expert, an objection must be timely made so that the trial court has the opportunity to conduct this analysis. However, when the challenge is restricted to the face of the record--for example, when expert testimony is speculative or conclusory on its face--then a party may challenge the legal sufficiency of the evidence even in the absence of any objection to its admissibility. Pollock, 284 S.W.3d at 817 (quoting Coastal, 136 S.W.3d at 233). Thus, while a no-evidence challenge asserting that the expert opinion is conclusory need not be preserved to be raised on appeal, a no-evidence challenge based on methodology or 9

a lack of reliability must be raised before trial or when the evidence is offered. Pollock, 284 S.W.3d at 817; Coastal, 136 S.W.3d at 232

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