Ex Parte Harland P. Kenyon--Appeal from 154th District Court of Lamb County

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State: Texas

Court: Texas Northern District Court

Docket No: 07-05-00117-CR

Case Date: 04/07/2005

Plaintiff: CONNIE BOERNE WILLIAMS

Defendant: THE STATE OF TEXAS--Appeal from 24th District Court of Goliad County

Preview:IN THE TENTH COURT OF APPEALS No. 10-09-00126-CV THE CITY OF WACO, Appellant v. ARMANDO FUENTES, III, Appellee

From the 414th District Court McLennan County, Texas Trial Court No. 2003-875-3 MEMORANDUM OPINION
Armando Fuentes was involved in an accident with a City of Waco garbage truck. The pickup Fuentes was driving was rear-ended by the City truck. Fuentes suffered neck, back, and ankle injuries. Fuentes sued the City after ultimately having back surgery with continued pain in his neck and back. The jury awarded Fuentes almost $400,000 in damages. The trial court reduced that amount to $250,000. The City appeals. Because we find the evidence sufficient to support $250,000 in damages and because we find the trial court did not err in admitting certain expert testimony, we affirm the judgment of the trial court.

EXPERT TESTIMONY The City contends that the trial court erred in allowing Dr. Michael Riggs to testify as an expert on certain subjects about which Riggs was allegedly not qualified to testify. Rule 702 of the Texas Rules of Evidence permits a witness qualified as an expert by knowledge, skill, experience, training, or education to testify on scientific, technical, or other specialized subjects if the testimony would assist the trier of fact in understanding the evidence or determining a fact issue. TEX. R. EVID. 702; Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713, 718 (Tex. 1998). A two-part test governs

whether expert testimony is admissible: (1) the expert must be qualified; and (2) the testimony must be relevant and be based on a reliable foundation. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). The trial court makes the initial determination about whether the expert and the proffered testimony meet the requirements of Rule 702. Helena, 47 S.W.3d at 499;

Robinson, 923 S.W.2d at 556. The trial court also has broad discretion to determine admissibility, and we will reverse only if there is an abuse of that discretion. Helena, 47 S.W.3d at 499; Robinson, 923 S.W.2d at 558. In deciding if an expert is qualified, trial courts "must ensure that those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion." Gammill, 972 S.W.2d at 719 (quoting Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996)).

The City of Waco v. Fuentes

Page 2

Prior to the trial on the merits, the City filed a motion to strike Riggs's testimony or, alternatively, to limit Riggs's testimony. The City argued in its motion that Riggs admitted he was not a neurosurgeon and thus, he lacked specialized knowledge and expertise to testify about causation between the accident and Fuentes's injuries. Riggs's testimony was to be submitted by video deposition. The trial court denied the City's motion except for certain excerpts of the deposition. Neither party complains about the deposition excerpts that were not allowed to be shown to the jury. On appeal, the City challenges Dr. Riggs's qualification as an expert to offer opinion testimony as an accident reconstruction expert or to offer opinion testimony that the accident caused Fuentes's injury. The first challenge, that Riggs was not qualified to offer opinion testimony as an accident reconstruction expert, was not presented to the trial court in either the City's motion to strike or in its argument at the pre-trial hearing regarding the City's motion. Because the trial court did not have an opportunity to consider this challenge, the City cannot now raise it on appeal. Accordingly, this particular challenge on appeal is not preserved for our review. See TEX. R. APP. P. 33.1. As to the second challenge, that Riggs was not qualified to offer opinion testimony that the accident caused Fuentes's injury, it is unclear from the record what the trial court reviewed to determine Riggs's qualifications. At the hearing on the motion to strike, the following exchange took place between the court and counsel for the parties. THE COURT: Number 1, do we have a complete

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