









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________

No. 06-01-00095-CV
______________________________


THE CITY OF PARIS, TEXAS, Appellant

V.

FELIX CLIFTON MCDOWELL, Appellee



On Appeal from the 6th Judicial District Court
Lamar County, Texas
Trial Court No. 61881





Before Cornelius, C.J., Grant and Ross, JJ.
Opinion by Chief Justice Cornelius

O P I N I O N

	Felix McDowell sued the City of Paris, Texas, and Tony Waggoner for damages, alleging
that Waggoner negligently caused a rear-end collision with a vehicle driven by McDowell, and that
Waggoner was acting within the course and scope of his employment with the City when the
collision occurred.  The City did not contest negligence, and the case was tried before a jury on the
issues of causation and damages. The jury awarded McDowell approximately $16,000.00 in
damages, but did not award him any damages for pain and suffering or for loss of earning capacity. (1) 
	McDowell filed a motion for new trial, contending that the jury's finding was against the
great weight and preponderance of the evidence.  The trial court granted McDowell's motion. 
McDowell  then  filed  a  motion  to  consolidate  the  case  with  a  negligence  suit  he  had  filed
against L. A. Davidson arising from another rear-end collision that occurred after the collision
involving Waggoner.  The record shows the collision with the City's vehicle driven by Waggoner
occurred in April 1993, and the collision with Davidson occurred in October 1996.  In his motion,
McDowell contended the two cases involved common issues of fact because both Davidson and the
City would argue that McDowell's injury resulted from the collision caused by the other.  The trial
court granted McDowell's motion. (2) 
	The case was again tried to a jury on the issues of causation and damages.  The jury awarded
McDowell approximately $248,000.00, including damages for pain and suffering and for loss of
earning capacity. (3)  The jury also found the City 100 percent responsible for the damages.  The trial
court rendered judgment accordingly.  
	In its first issue, the City contends the trial court abused its discretion in admitting the
testimony of John Smith, one of McDowell's expert witnesses.  The City contends Smith's opinions
should not have been admitted because McDowell failed to establish that the foundation on which
Smith's opinions were based was reliable.
	McDowell contends the City failed to preserve its complaint for appeal.  The City first
objected to Smith giving "any opinion regarding the effect of the impact on the human body
[because] the witness is not qualified as an expert on the human body or in the field of medicine or
in any related science."   The trial court sustained the objection because McDowell had not, at that
time, presented a foundation for Smith to testify about anything related to biomechanics. 
	The City next objected "to [Smith's] opinion of what happens to people [in a collision]."  The
trial court sustained the City's objection because the witness had not given a definition of
biomechanics.  
	The City's third objection was that McDowell listed Smith in its discovery responses as a
collision reconstruction expert, rather than a biomechanics expert, and that McDowell failed to
disclose in discovery that Smith has a master of science degree in biomechanics.  The trial court
overruled these objections. 
	Finally, the City asked the trial court:
		[Defendant's Counsel]:	One last thing, Your Honor.  Do I understand
the court's ruling that the witness will be allowed to testify regarding his opinion as
to whether this accident could have caused the injuries that the plaintiff is claiming? 
Or is that not a part of the ruling that the court has made yet?

		THE COURT:	I think that this witness is qualified by education and
experience to render that opinion, and I'm going to permit him to do so.

		[Defendant's Counsel]:	Would I be required to make any further
objection, or can my objection just be noted in the record as a running objection to
that testimony?

		THE COURT:	I would prefer that you just - I will be glad to grant you
a running objection to everything I have ruled on without you having to repeat it, but
I want to urge you to do whatever you feel is necessary to protect your own record. 
I will grant your running object [sic] concerning his qualifications and expertise.

	The City contends Smith's opinions should not have been admitted in evidence because the
scientific bases of those opinions are logically flawed.  The City contends the foundation of Smith's
opinions is deficient because Smith did not personally inspect the vehicles or the scene of the
collision, but relied exclusively on photographs of the vehicles at the scene.  The City also contends
Smith did not speak with the damage appraisers, did not speak to any of the witnesses, and did not
review the circumstances of the collision until approximately seven and one-half years after it
occurred.  The City further contends Smith did not consider the effect of McDowell's previous
experiences of participating in college and professional football or his involvement in the 1996
collision.
	We agree with McDowell that this issue is not preserved for our review.  To preserve an issue
for appellate review, the record must demonstrate that (1) the complaint was made to the trial court
by a timely request, objection, or motion, which stated the grounds of the objection with sufficient
specificity to make the trial court aware of the complaint, unless the specific grounds were apparent
from the context; and (2) the trial court ruled on the request, objection, or motion either explicitly
or implicitly or refused to rule on the request, objection, or motion and the complaining party
objected to the refusal.  Tex. R. App. P. 33.1(a).
	In this case, the City objected to Smith's qualifications and expertise.  The trial court
overruled the City's objections, but expressly stated it was granting a running objection concerning
those issues.  The City did not present any objection regarding the foundation on which Smith's
opinions were based.
	The City also contends the trial court erred in admitting Smith's testimony because Smith's
curriculum vitae (CV) did not disclose any academic training in the field of biomechanics and
McDowell did not supplement his discovery responses to disclose any such academic training. 
Smith's CV recites he has a bachelor of science degree in geophysical engineering and a master of
science degree in electrical engineering.  His CV does not reflect a degree in biomechanics.  
	At trial Smith testified he completed his course work for his master of science degree in
biomechanics in November 2000 and received his degree in December 2000.  It is not clear when
McDowell supplied his discovery responses to the City, but Smith's preliminary report, which was
included in the discovery response, is dated November 6, 2000.  The trial in this case was held on
February 26, 2001.
	Regarding testifying experts or consulting experts whose mental impressions or opinions
have been reviewed by a testifying expert, Tex. R. Civ. P. 192.3(e) makes discoverable, among other
things, the subject matter on which a testifying expert will testify and the expert's current resume and
bibliography.  Tex. R. Civ. P. 192.3(e)(2); see also Tex. R. Civ. P. 194.2(f).  In responding to written
discovery, a party must make a complete response based on all information reasonably available to
the responding party or the party's attorney at the time the response is made.  Tex. R. Civ. P. 193.1.
	Arguably, McDowell did not have a duty to supplement his discovery response because the
record does not disclose that the City specifically sought Smith's "current resume and bibliography,"
as Rule 192.3(e)(2) allows.  Rather, McDowell sought:
	[T]he name, address, and telephone number of each expert witness you may call at
trial as an expert witness . . . and for each such witness:  1) state the subject matter
on which the expert is expected to testify; 2) state the mental impressions and
opinions held by the expert concerning any issue in this case; and (3) state the facts
known to the expert which relate to or form the basis of the mental impressions and
opinions held by the expert.

	However, assuming McDowell's duty to supplement arose from the fact of his earlier
disclosure of Smith's CV, the issue is not properly preserved for our review.  If a party learns that
the party's discovery response is no longer complete and correct, the party must amend or supplement
the response (to the extent the written discovery sought information other than the identity of persons
with knowledge of relevant facts, trial witnesses, or expert witnesses) unless the additional or
corrective information has been made known to the other party in writing, on the record at a
deposition, or through other discovery responses.  Tex. R. Civ. P. 193.5(a); see also Tex. R. Civ. P.
195.6.  A party who fails to make, amend, or supplement a discovery response in a timely manner
may not introduce in evidence the material or information not timely disclosed unless the trial court
finds:  (1) there was good cause for the failure to timely make, amend, or supplement the discovery
response; or (2) the failure to timely make, amend, or supplement the discovery response will not
unfairly surprise or unfairly prejudice the other party.  Tex. R. Civ. P. 193.6(a).
	Here the information subject to exclusion was the fact that Smith obtained his master of
science degree in biomechanics.  This information was disclosed at trial on direct examination
without a timely objection.  The record shows that McDowell asked Smith to state his educational
and professional background and his experience and training in accident reconstruction, engineering,
and biomechanics.  Smith responded, without objection, with a recitation of his credentials,
including his master of science degree in biomechanics.  Only much later did the City object on the
ground "there was no mention in any respect of a masters [sic] of science degree in biomechanics"
in the CV McDowell produced in his discovery response.  
	As mentioned previously, to preserve an issue for review, the record must demonstrate that
the complaint was made to the trial court by a timely request, objection, or motion which stated the
grounds for the requested ruling with sufficient specificity to make the trial court aware of the
complaint, unless the specific grounds were apparent from the context.  Tex. R. App. P. 33.1(a). 
Here, the objection was not made timely, and the City's specific objection was not made clear from
the context of its previous objections, which only attacked Smith's qualifications to testify as an
expert in biomechanics.
	The City also contends the trial court erred in admitting Smith's testimony because McDowell
failed to disclose a notebook of material to which Smith referred at trial and certain correspondence
between Smith and McDowell's attorney.   This issue is improperly briefed.  Tex. R. App. P. 38.1(h). 
The City has not shown where it requested this material from McDowell and has not presented any
authority showing why it was entitled to the material.
	The City also contends the trial court erred in admitting Smith's testimony regarding the
biomechanical forces exerted in the accident because McDowell did not properly inform the City in
its discovery responses that Smith would testify concerning that subject. (4)  In his response to the
City's discovery request, McDowell disclosed Smith as a testifying expert.  Specifically, McDowell
disclosed:
	Mr. Smith, a reconstruction expert, will testify as to all aspects of the accident
investigation and reconstruction.  He will testify as to the negligence of Tony Lee
Waggoner and the City of Paris, the proximate cause of the accident and will assess
Tony Lee Waggoner's conduct in relation to the accident.

	Mr. Smith has reviewed the photographs of the vehicles involved, the accident report
prepared by the police officer that investigated the collision, and copies of vehicle
repair estimates.  He has been or will be furnished with depositions of fact witnesses
in this case.  Mr. Smith is expected to testify that the road conditions at the time of
the occurrence in question were not hazardous and that the failure of Tony Lee
Waggoner to keep a proper lookout, failure to make a proper application of his
brakes, and failing to make a timely application of his brakes was negligence and the
proximate cause of the occurrence in question.

	Mr. Smith's curriculum vitae is attached as Exhibit A and a copy of his Preliminary
Report is attached as Exhibit B.

	McDowell's discovery response discloses that Smith would testify regarding "all aspects of
the accident investigation and reconstruction," which would certainly include the forces exerted on
McDowell that could cause his injury.  Regarding Smith's qualifications as an expert in
biomechanics, Smith's CV recites that he has been associated as a staff engineer with Raymond P.
Smith and Associates in Denver, Colorado, since December 1991.  In that capacity, he performs
accident investigations and reconstructions and analyses of "occupant kinematics/injury
mechanisms" and biomechanics. 
	Smith testified he listed in his CV, under the heading "Continuing Education," the courses
and seminars he took in pursuit of his master of science degree in biomechanics.  The continuing
education courses listed in Smith's CV include "Head & Neck Injury Symposium," "Accidental
Injury:  Biomechanics & Prevention," "Biomechanics of Accidents," "Whiplash Symposium," and
attendance at the twenty-first through twenty-sixth "International Workshop[s] on Human Subjects
for Biomechanical Research."  Smith's CV also reveals he has written an article titled "The Physics,
Biomechanics and Statistics of Rear Impacts," and given speeches titled "Biomechanics,"
"Biomechanics and Accident Reconstruction," "Principles of Accident Reconstruction:  Physics and
Biomechanics," and "Countering the Opposition's Biomechanical Expert."
	Smith's preliminary report recites Smith's conclusion that, "The injuries reported are
consistent with the applied forces in the collision."  The City contends, however, that "a report is not
a 'discovery response' as envisioned by Rule 193.6."  The City's contention overlooks the fact that
Smith's report was included as an attachment to McDowell's discovery response.  Given the above
disclosures, we conclude that the City had sufficient notice of the possible scope of Smith's
testimony.
	In its second issue, the City contends there was no evidence or insufficient evidence to
support the jury's finding that the 1993 collision was the cause of McDowell's injury and that the City
was completely responsible.  In determining whether there is no evidence of probative force to
support a jury's finding, we must consider all of the evidence in the light most favorable to the party
in whose favor the verdict has been rendered, and we must indulge every reasonable inference that
can be deduced from the evidence in that party's favor.  Merrell Dow Pharm., Inc. v. Havner, 953
S.W.2d 706, 711 (Tex. 1997).  We will sustain a no-evidence issue when (a) there is a complete
absence of evidence of a vital fact; (b) we are barred by rules of law or of evidence from giving
weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact
is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital
fact.  Id.  More than a scintilla of evidence exists when the evidence supporting the finding, as a
whole, rises to a level that would enable reasonable and fair-minded people to differ in their
conclusions. 
	When considering a factual sufficiency challenge to a jury's verdict, we consider and weigh
all of the evidence, not just the evidence supporting the verdict.  Maritime Overseas Corp. v. Ellis,
971 S.W.2d 402, 406-07 (Tex. 1998).  We set aside the verdict only if it is so contrary to the
overwhelming weight of the evidence that it is clearly wrong and unjust.   Id.  We are not a fact-finder.  Accordingly, we may not pass on the witnesses' credibility or substitute our judgment for the
jury's, even if the evidence would clearly support a different result. 
	McDowell called as witnesses two neurosurgeons who had examined him.  Dr. James Bland
testified he first saw McDowell in October 1993, after the 1993 collision with the City vehicle; 
again in January 1996; and a third time in January 1997, after the 1996 collision with Davidson.  
Dr. Charles Gordon testified McDowell was referred to him in 1999.
	Both Bland and Gordon testified McDowell complained of pain between his shoulder blades
and down his back.  Both reviewed magnetic resonance imaging (MRI) scans and a myelogram. 
Both doctors concluded McDowell had a herniated disk between his fifth and sixth vertebrae.  Both
testified the MRIs showed little change in McDowell's condition since the first MRI was taken in
1993. 
	Bland testified McDowell's injury was, within reasonable medical probability, caused by the
1993 collision with Waggoner, the City's employee.  He testified the 1996 collision with Davidson
irritated McDowell's condition by, for a time, increasing his pain, but the collision with Davidson
did not cause a material change in McDowell's condition.  Gordon testified that McDowell's injury
was consistent with an injury that could be suffered in an automobile collision.  Smith, the accident
reconstruction expert, testified the forces exerted in the collision could have caused McDowell's
injury.
	Both Bland and Gordon admitted that their conclusions were based on McDowell telling
them he did not have pain in his back before the 1993 collision, but had pain afterward.  Bland
testified McDowell's experiences of playing four years of college football and attending professional
football camps might cause a degenerative disk condition that would not surface until later. 
However, Gordon testified it would be "highly unlikely" that McDowell would have sustained his
injury playing football and not have known about it or reported it earlier. 
	McDowell testified that on the day of the 1993 collision, he was waiting at a red light
preparing to turn.  He testified the impact of the rear-end collision sent his truck forward fifteen to
eighteen feet.  He immediately felt a "tingling" in his back.  The pain got worse until he eventually
went to the emergency room that evening. 
	McDowell and his wife, Cathy, both testified that McDowell has lived with pain since the
1993 collision.  McDowell testified the pain has gotten worse as he has gotten older.  He has taken
pain medication and antidepressants consistently since 1993. 
	McDowell testified he had no back problems before the 1993 collision.  He testified that in
1984 and 1985, he received thorough physical examinations before attending and being released
from training camps with the Washington Redskins and the Green Bay Packers, respectively, and
had no evidence of back trouble.  He testified that after being "cut" at training camp in 1983, he
worked as a painting and construction contractor for several years, which he testified involved
physically demanding work.  On cross-examination, however, the City presented a note in
McDowell's medical records from 1990 in which a doctor, who treated McDowell for an ulcer, noted
McDowell's complaints about high back and low back pain, which the doctor characterized as
"musculoskeletal." 
	McDowell testified that in the 1996 collision, Davidson "sideswiped" him.  He testified the
collision caused swelling in his back, much like what happens to him after a hard day's work.  On
cross-examination, however, he admitted he alleged in his pleadings in his suit against Davidson that
in the 1996 collision, "he was thrown about inside [his] vehicle with unusual force and violence";
that he "suffered blows to [his] head, neck, back and diverse other parts" of his body; that his "entire
body was bruised, battered and contused"; that he suffered "great shock to his nervous system"; that
he suffered great physical and mental pain, suffering and anguish"; and that the injuries he sustained
in that collision are permanent in nature. 
	Reviewing the record in this case, we conclude there is sufficient evidence to support the
jury's finding that the 1993 collision was the cause of McDowell's injury and that the City was
100 percent responsible for those injuries.  Bland testified McDowell's injury was caused by the 1993
collision.  Gordon testified McDowell's injury was consistent with an injury that could be suffered
in an automobile collision.
	Bland and Gordon both testified McDowell's condition did not change from 1993 to 1999,
even after the 1996 collision.  Though McDowell's pleadings in his suit against Davidson alleged
he received serious and permanent injuries in the 1996 collision, the jury was free to give greater
weight to evidence that McDowell's condition did not change from 1993 to 1999.  
	Though both Bland and Gordon agreed that their conclusions depended on the premise that
McDowell did not have a pre-existing back problem, McDowell testified he did not have a back
injury before the 1993 collision.  Though there is evidence that McDowell complained of back pain
in 1990, the jury could have rationally believed that complaint arose from some other cause.
	Though the City contends McDowell's injury could have resulted from McDowell's
experience as a football player, the record shows McDowell last played football in 1985 and received
a physical examination on his release that revealed no back injury.  Further, Gordon testified it is
highly unlikely that McDowell could have received his injury playing football and not have been
aware of it.
	The judgment is affirmed.


							William J. Cornelius
							Chief Justice

Date Submitted:	April 4, 2002
Date Decided:		April 26, 2002

Publish
1. The jury awarded nothing for past and future physical pain and mental anguish, nothing for
loss of past earnings, nothing for loss of future earning capacity, $3,000.00 for past physical
impairment, $5,000.00 for future physical impairment, and $8,057.00 for past medical and hospital
care. 
2. McDowell and Davidson later settled.
3. The jury awarded $95,000.00 for past and future physical pain and mental anguish,
$112,600.00 for loss of future earning capacity, $8,000.00 for past physical impairment, nothing for
future physical impairment, $7,680.81 for past medical care, and $25,000.00 for future medical care. 

4. This issue is properly preserved because, at the time the City made its objection, Smith had
not given an opinion concerning whether the force from the collision could cause McDowell's injury.

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                                                         In
The
                                                Court
of Appeals
                        Sixth
Appellate District of Texas at Texarkana
 
                                                ______________________________
 
                                                             No. 06-10-00105-CV
                                                ______________________________
 
 
                                       COY LYNN OWENS,
Appellant
 
                                                                V.
 
                                            COY E. OWENS, Appellee
 
 
                                                                                                  

 
 
                                       On Appeal from the 62nd
Judicial District Court
                                                           Hopkins County, Texas
                                                          Trial Court
No. CV36520
 
                                                       
                                           
 
 
                                          Before Morriss, C.J.,
Carter and Moseley, JJ.
                                            Memorandum Opinion by Justice Moseley



                                                     MEMORANDUM 
OPINION
 
            Coy
Lynn Owens, pro se, filed a notice of appeal from an order releasing funds from
the registry of the court.  He filed the
notice of appeal on October 4, 2010. 
Fifteen days later, on October 19, 2010, he filed a letter with the
district clerk requesting the appeal be dismissed (with detailed explanations
of his reasons).  He asked the court to
treat his letter as a motion to withdraw his notice of appeal.
            In
accord with his stated intention, we treat his correspondence as a motion to
dismiss his appeal.  See Tex. R. App. P. 42.1.

            We
dismiss the appeal.  
 
 
                                                                        Bailey
C. Moseley
                                                                        Justice
 
Date Submitted:          November 16, 2010
Date Decided:             November 17, 2010
 
 

