                                                                                       ACCEPTED
                                                                                  04-14-00124-CV
                                                                       FOURTH COURT OF APPEALS
                                                                            SAN ANTONIO, TEXAS
                                                                              2/9/2015 7:31:18 PM
                                                                                    KEITH HOTTLE
                                                                                           CLERK




NO. 04-14-00124-CV                                                 FILED IN
                                                            4th COURT OF APPEALS
                                                             SAN ANTONIO, TEXAS
                                                            02/9/2015 7:31:18 PM
                                                              KEITH E. HOTTLE
                         IN THE COURT OF APPEALS                    Clerk
                    FOR THE FOURTH DISTRICT OF TEXAS
                               SAN ANTONIO


                    WESTFREIGHT SYSTEMS, INC., ET AL.

                                     v.

                      JOHN MICHAEL HEUSTON, ET AL.


                    From The 79th Judicial District Court
                        of Jim Wells County, Texas


        REPLY BRIEF OF HEUSTON, RODRIGUEZ, AND THE ESTATE OF
         JUANA GARZA AS CROSS-APPELLANTS AND AS APPELLEES


John Blaise Gsanger                   David T. Bright
SBN: 00786662                         SBN: 02991490
THE EDWARDS LAW FIRM                  SICO, WHITE, HOELSCHER,
802 N. Carancahua, Suite 1400         HARRIS & BRAUGH, LLP
Corpus Christi, Texas 78401           802 N. Carancahua, Suite 900
Tel: (361) 698-7600                   Corpus Christi, Texas 78401
Fax: (361) 698-7614                   Tel: (361) 653-3300
                                      Fax: (361) 653-3333
ORAL ARGUMENT REQUESTED ONLY
IF THE COURT BELIEVES ARGUMENT        ATTORNEYS FOR CROSS-APPELLANTS/
WOULD ASSIST CASE DISPOSITION         APPELLEES JOHN HEUSTON, ET AL.
                                      I.    TABLE OF CONTENTS

I.       TABLE OF CONTENTS ........................................................................... ii

II.      INDEX OF AUTHORITIES....................................................................... iii

III.     ARGUMENT.................................................................................................. 1

     A. Westfreight did far worse than negligently create a dangerous condition ....... 1

       1. Westfreight’s negligence during the crash and in the preceding seconds ..... 1

       2. Westfreight relies on cases which are readily distinguishable ...................... 4

          a. Bell v. Campbell involved two different crashes separated in time ........... 5

          b. Erie Ins. Exch. v. U.S. involved a truck speeding in a snowstorm ............ 6

          c. Tex. Elec. Co-op. v. Dillard refutes Westfreight's argument ..................... 6

          d. City of Kemah v. Vela was decided on sovereign immunity grounds ....... 7

          e. Fitzsimmons v. Brake Check involved two crashes and car maintenance . 7

          f. Texas & New Orleans Railroad involved a train, not a lane change ......... 8

     B. There is overwhelming evidence of proximate causation................................. 9

       1. Westfreight’s no evidence point fails to consider all of the evidence ........... 9

       2. Westfreight misunderstands “but for” and “substantial factor” analysis .... 11

       3. Proof of foreseeability and reckless disregard of foreseen dangers ............ 13

     C. Westfreigh reduced Garza's ability to perceive the intrusion into her lane .... 15

     D. Westfreight’s complaints about expert methodology were not preserved ..... 18

     E. Heuston and Rodriguez preserved and fully briefed their cross-point............ 20

IV.      PRAYER ....................................................................................................... 22

V.       CERTIFICATES ......................................................................................... 23

                                                           ii
                               II.    INDEX OF AUTHORITIES
Cases

Arkoma Basin Exploration Co. v. FMF Assoc. 1990-A, Ltd.,
     249 S.W.3d 380 (Tex. 2008) .........................................................................19

Bell v. Campbell,
       434 S.W.2d 117 (Tex. 1968) ....................................................................... 4-5

Bostic v. Georgia-Pacific Corp.,
      439 S.W.3d 332 (Tex. 2014) .........................................................................12

Burrow v. Arce,
     997 S.W.2d 229 (Tex. 1999) .........................................................................19

City of Keller v. Wilson,
       168 S.W.3d 802 (Tex. 2005) ...........................................................................9

City of Kemah v. Vela,
       149 S.W.3d 199 (Tex. App.-Houston [14th Dist.] 2004, pet. den.) ............5, 7

City of San Antonio v. Pollock,
       284 S.W.3d 809 (Tex. 2009) .........................................................................19

Coastal Transp. Co. v. Crown Cent. Petroleum Corp.,
     136 S.W.3d 227 (Tex. 2004) .........................................................................19

Daven Corp. v. Tarh E & P Holdings, L.P.,
     441 S.W.3d 770 (Tex. App.-San Antonio 2014, pet. filed)...........................21

Del Lago Partners, Inc. v. Smith,
      307 S.W.3d 762 (Tex. 2010) .........................................................................11

Erie Ins. Exch. v. U.S.,
       115 F.Supp.2d 493 (M.D. Pa. 2000)............................................................ 5-6

Flying J Inc. v. Meda, Inc.,


                                                     iii
         373 S.W.3d 680 (Tex. App.-San Antonio 2012, no pet.) ..............................21

Fitzsimmons v. Brake Check Inc.,
      832 S.W.2d 446 (Tex. App.-Houston [14th Dist.] 1992, no writ) .......... 5, 7-8

Ford Motor Co. v. Castillo,
     444 S.W.3d 616 (Tex. 2014) ...........................................................................9

Formosa Plastics Corp., USA v. Kajima Intn'l, Inc.,
     216 S.W.3d 436 (Tex. App.-Corpus Christi 2006, pet. denied) ....................20

Gen. Motors Corp. v. Sanchez,
     997 S.W.2d 584 (Tex. 1999) .........................................................................19

In re ADT Sec. Servs., S.A. de C.V.,
       No. 04-08-00799-CV, 2009 WL 260577 (Tex. App.-San Antonio Feb. 4,
  2009, orig. proceeding)...........................................................................................9

In re City of Lancaster,
       228 S.W.3d 437 (Tex. App.-Dallas 2007, no pet.) ..........................................9

In re Lerma,
       144 S.W.3d 21 (Tex. App.-El Paso 2004, orig. proceeding) ..........................9

Ingham v. O'Block,
     351 S.W.3d 96 (Tex. App.-San Antonio 2011, pet. denied) .........................21

Jackson v. Williams Bros. Constr. Co.,
      364 S.W.3d 317 (Tex. App.-Houston [1st Dist.] 2011, pet. denied) .............21

Orren v. BWF Corp.,
      NO. CA2013-11-112, 2015 WL 135365, 2015-Ohio-62 (Ohio App. 12 Dist.
 Jan 12, 2015).........................................................................................................16

Perry v. Cohen,
      272 S.W.3d 585 (Tex. 2008) .........................................................................20

Pilgrim's Pride Corp. v. Burnett,
      No. 12-10-00037-CV, 2012 WL 381714 (Tex. App.-Tyler Feb. 3, 2012, no

                                                           iv
   pet.) .......................................................................................................................16

Royce Homes, L.P. v. Humphrey,
      244 S.W.3d 570 (Tex. App.-Beaumont 2008, pet. denied) ...........................21

Ryder Integrated Logistics, Inc. v. Fayette County,
      No. 13-0968, 2015 WL 496303 (Tex. Feb. 6, 2015) .............................. 11, 13

Schlafly v. Schlafly,
      33 S.W.3d 863 (Tex. App.-Houston [14th Dist.] 2000, pet. denied) ..............9

Sossi v. Willette & Guerra, LLP,
       139 S.W.3d 85 (Tex. App.-Corpus Christi 2004, no pet.)...............................9

Tex. Elec. Co-op. v. Dillard,
      171 S.W.3d 201 (Tex. App.-Tyler 2005, no pet.) ....................................... 5-7

Texas & New Orleans Railroad Co. v. Compton,
      136 S.W.2d 1113 (Tex. 1940) ................................................................. 5, 8-9

VTech Holdings Ltd. v. PriceWaterhouseCoopers LLP,
     348 F.Supp.2d 255 (S.D.N.Y. 2004) .............................................................18

W. Invs., Inc. v. Urena,
      162 S.W.3d 547 (Tex. 2005) .........................................................................11

Weeks Marine, Inc. v. Garza,
     371 S.W.3d 157 (Tex. 2012) .........................................................................20


Statutes and Rules

Tex. Transp. Code Ann. § 545.363(a) .......................................................................2

49 CFR § 392.33(a)..................................................................................................15




                                                                v
 IN THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS – SAN ANTONIO


     WESTFREIGHT SYSTEMS, INC., ET AL. v. JOHN MICHAEL HEUSTON, ET AL.


        From The 79th Judicial District Court of Jim Wells County, Texas


               REPLY BRIEF OF CROSS-APPELLANTS/APPELLEES


TO THE HONORABLE COURT OF APPEALS:

                              III.   ARGUMENT

A. Westfreight did far worse than negligently create a dangerous condition

      1. Westfreight’s negligence during the crash and in the preceding seconds

      This is not a case where Westfreight carelessly created a dangerous situation

that manifested days, hours, or minutes later in a crash that killed Janie Garza.

Westfreight’s negligence occurred during the crash when Westfreight pulled into

Garza’s lane and in the seconds before the crash when Westfreight backed onto the

darkened highway and then pulled forward without looking for oncoming traffic.

      Westfreight’s own crash reconstructionist admitted it “was a poor decision”

for Westfreight’s truck driver to back across a 70-mile-per-hour highway at night

because it is “not prudent” for a truck to block the road. 6 RR 25, 59-60. Yet in

a “night environment” where “it's dark” and the “pavement is dark,” Westfreight’s



                                        1
truck trailer was “angled across the road” with the back of the trailer “in the left-

hand lane” while moving into the right lane at “five to 10 miles an hour … at the

time of the impact.” 6 RR 20, 29-30, 102; see also 4 RR 46-47, 65-70, 77-78, 81-84,

226; 23 RR Ex. 242-43; cf. Tex. Transp. Code Ann. § 545.363(a) (“operator may not

drive so slowly as to impede the normal and reasonable movement of traffic”).

      As a result, the crash occurred while the truck was moving forward and “the

trailer was straddling the white dashed line” separating the left lane from the right

lane, and – according to Westfreight’s own witness – that was imprudent:

      Q.     Let's talk about February 20th, 2012, Highway 281, in the dark,
             after they backed on the highway and they're straddling the white
             line; is that reasonably prudent for a truck driver to do?
      A.     In general, you wouldn't want to do that.

6 RR 102, 109. The jury heard why this negligence by Westfreight’s truck driver

caused the crash:

      Well, the collision would not have happened unless they pulled the
      trailer not just into the right lane, but where it's straddling the center
      line of the roadway. Because remember, we know exactly where that
      van impacted the rear of the trailer. We know where that was in the
      roadway. It left fingerprints in the roadway, those gouge marks. So it
      would have had to have backed over onto the shoulder and then pulled
      out some and pulled into the middle of the roadway splitting both lanes
      before it was struck…. [I]t should be intuitively obvious, that the
      reason this collision occurred is because the driver chose to back the
      vehicle out, it's in the lane crossing the roadway, blocking the roadway
      for over 60 seconds. It's in the left travel lane for the tail lights, and then
      it's moving into the right travel lane. The driver and the co-driver,
      neither one were aware of oncoming traffic. And to pull a truck out
      there and to block the roadway with it is certainly not a prudent thing

                                            2
      to do. It's not what any reasonable truck driver would do. It's a known
      hazard not only to the trucking industry, but to probably everybody in
      this room that you don't have a hard, fixed object in a dark roadway at
      night.

4 RR 81-83.

      Westfreight’s lane change was also negligent because the truck was “violating

… the right of way of the vehicle approaching from the rear,” which was Janie

Garza’s minivan. 4 RR 249-50. The Westfreight truck’s entry into Garza’s lane

of traffic was “a negligent thing to do because it’s certainly a foreseeable hazard to

pull out in a slow moving truck and to block those lanes” and it was irresponsible

misconduct:

      Because a truck driver is aware … he's … driving a … very slow-
      moving vehicle. And so what … he's doing if he does do that, move
      from the shoulder onto the travel lane, is he's putting 100 percent of the
      avoidance on the other person, taking no responsibility himself.

4 RR 81-82.

      In addition to Westfreight’s careless driver, Westfrieght also had a spotter in

the truck whose primary job as to look down the roadway to protect oncoming traffic,

but he admittedly failed to see Janie Garza as she was driving on Highway 281 that

night. 5 RR 37-39, 41, 50-51. Westfreight’s spotter admitted he would have seen

Garza before the truck pulled into her lane if he had been performing his job, 5 RR

51, and Westfreight’s trucking safety witness agreed the spotter’s failure was

negligence:

                                          3
      Q.     So now the only thing that is possible is that Bailey and Johnston
             were not looking for approaching motorists such as Ms. Garza,
             correct?
      A.     Yes. For whatever reason, they did not see her.
      Q.     And they should have been, correct?
      A.     They should have been watching, yes.
      …
      Q.     Is it negligent for these gentlemen not to be looking for
             approaching motorists on the roadway that night?
      A.     It would be negligent of them not to follow a recommended
             procedure of watching, look out around – in and around – front
             of, back, side of the vehicle.
      Q.     Okay. And they didn’t do that, correct?
      A.     Not to my satisfaction, no, sir.
      Q.     Okay. And that would be negligent for them not to, right?
      A.     I’m afraid it would be.
      …
      Q.     Do you agree that it is negligent to make a start from a stopped
             position in that fashion?
      A.     Without being aware of the traffic that's coming, one blends into
             the other. So, yes.

5 RR 203-05.

           2. Westfreight relies on cases which are readily distinguishable

      Notwithstanding Westfreight’s active negligence during the crash and in the

preceding seconds as documented by crash reconstructionists and trucking safety

experts for both sides in the case, Westfreight persists in arguing that it did nothing

worse than create “a condition necessary for the collision to occur.”     Westfreight

Reply Br. pp. 18-23. In support of this argument, Westfreight cites a half dozen

cases – none of which supports Westfreight’s argument in this case:

    Bell v. Campbell,

                                          4
    Erie Ins. Exch. v. U.S.,

    Tex. Elec. Co-op. v. Dillard,

    City of Kemah v. Vela,

    Fitzsimmons v. Brake Check Inc.,

    Texas & New Orleans Railroad Co. v. Compton.

See Westfreight Reply Br. pp. 18-23.

        a. Bell v. Campbell involved two different crashes separated in time

      In Bell v. Campbell, the surviving family of John Bell sued Addie Campbell,

a woman who was involved in a car crash with Thomas Marshal.       Bell v. Campbell,

434 S.W.2d 117, 118-19 (Tex. 1968).           After the crash between Cambell and

Marshal, Bell was a passerby who stopped to help remove debris from the highway

when Bell was hit by a drunk driver, W. W. Fore., and the Bell court held that “[t]he

active and immediate cause of the second collision, however, was an entirely

independent agency, Fore”:

      All forces involved in or generated by the first collision had come to
      rest, and no one was in any real or apparent danger therefrom. No one
      would have been injured if there had not been a second collision.

Id. at 120.   The case now before the Court is entirely different: there is no “first

collision” and “second collision” in this case.   The active and immediate cause of

the crash that killed Janie Garza was Westfrieght’s negligent driver with its trailer



                                          5
in the left lane slowly moving into the Garza’s lane – the right lane – after

Westfreight’s spotter negligently failed to spot Garza.           The forces from

Westfreight’s negligence had not “come to rest;” instead, the forces from

Westfreight’s negligence were moving at five to 10 miles per hour in the dark while

straddling the lane divider as they moved from the left lane into the right lane of

Highway 281.

       b. Erie Ins. Exch. v. U.S. involved a truck driver speeding in a snowstorm

      In Erie Insurance Exchange v. U.S., Jacob Hodge (insured by Erie Insurance)

slowed or stopped his SUV in the left lane of a snow-covered highway in a heavy

snowstorm due to extremely reduced visibility, and he was rear-ended by a United

States Post Office truck that had driven past several crashes and many stopped cars

and had moved into the left lane to pass slower cars.   Erie Ins. Exch. v. U.S., 115

F.Supp.2d 493, 494-95 (M.D. Pa. 2000). Based on the snowstorm, the Post Office

truck driver was found to be at fault for driving too fast for the conditions. Id. at

495-96.   Erie Insurance Exchange v. U.S. has no bearing on the case now before

this Court because Westfreight’s blocking both lanes of the highway was not

justified by extreme snow conditions, and Janie Garza was not found to be driving

at an excessive speed for the conditions.

       c. Tex. Elec. Co-op. v. Dillard refutes Westfreight's argument

      In Texas Electric Co-op v. Dillard, a Texas Electric Co-op truck driver

                                            6
negligently hit a cow and left its carcass on the road and then failed to adequately

warn other drivers of the carcass blocking the road, and the truck driver’s

carelessness was found to be the cause of a subsequent crash between Kenneth

Dillard and Mae Joyce Brown. Tex. Elec. Co-op. v. Dillard, 171 S.W.3d 201, 203-

06 (Tex. App. – Tyler 2005, no pet.).    Nothing in this case offers any justification

for Westfreight’s negligence.   To the contrary, the imposition of liability against

Texas Electric Co-op despite the small gap between its negligent collision with the

cow and Dillard’s subsequent fatal crash rebuts Westfreight’s attempt to imply some

gap between its admitted negligence and the fatal crash in this case.

       d. City of Kemah v. Vela was decided on sovereign immunity grounds

      In City of Kemah v. Vela, Gabriel Vela pulled over into the left lane as part of

a traffic stop and then two marked police cars with their emergency overhead lights

activated pulled in line behind Vela.   City of Kemah v. Vela, 149 S.W.3d 199, 201

(Tex. App. –Houston [14th Dist.] 2004, pet. den.).   Vela brought suit over injuries

he sustained when a truck hit the rearward police car which jolted forward into the

other cars, but Vela’s case was dismissed on sovereign immunity grounds. Id. at

203-05.   Nothing in this case offers any justification for Westfreight’s negligence

because City of Kemah v. Vela was decided on sovereign immunity grounds.

       e. Fitzsimmons v. Brake Check involved two crashes and car maintenance

      In Fitzsimmons v. Brake Check Inc., Mary Ann Fitzsimmons was rear-ended

                                          7
by another car when she and the rest of the traffic on the freeway was slowing due

to a crash up ahead in the road, and this other crash resulted from the tire coming off

of a car that had been recently serviced by Brake Check.       Fitzsimmons v. Brake

Check Inc., 832 S.W.2d 446, 448-50 (Tex. App. – Houston [14th Dist.] 1992, no

writ).    The court found the driver who rear-ended Fitzsimmons – and not Brake

Check – was the cause of the crash.           Id.   If maintenance performed by an

automotive service center caused another car to break down which resulted in the

Westfreight truck slowly pulling into Janie Garza’s lane, and if Garza then tried to

sue that service center, Fitzsimmons v. Brake Check would be relevant.

Fitzsimmons v. Brake Check is not relevant, however, because it was Westfreight’s

negligence that caused the Westfreight truck to pull into Janie Garza’s lane at five

to 10 miles per hour on a dark night with its trailer at an angle blocking both lanes.

         f. Texas & New Orleans Railroad involved a train, not a lane change

         In Texas & New Orleans Railroad Co. v. Compton, decided 75 years ago,

Charles Compton drove his car into a long, slow-moving train (he was driving over

30 miles per hour when he hit the sixtieth car of an 87-cars train traveling less than

ten miles per hour). Texas & New Orleans Railroad Co. v. Compton, 136 S.W.2d

1113, 1114 (Tex. 1940).      There was conflicting evidence whether the train had

sounded its whistle as the locomotive engine car passed the crossing, but the court

found that this did not raise an issue of causation because the locomotive car with

                                          8
the whistle had passed the crossing three minutes before Compton hit the train’s

sixtieth car. Id. at 1114-15. Texas & New Orleans Railroad Co. v. Compton has

no applicability to the case now before the Court because a train runs on fixed tracks

and cannot, therefore, be found to have negligently intruded into another driver’s

lane after negligently failing to spot the oncoming car with the right-of-way.

B. There is overwhelming evidence of proximate causation

        1. Westfreight’s no evidence point fails to consider all of the evidence

       The scope of evidence viewed in a “no evidence” challenge includes all of the

evidence:

       In a legal sufficiency review, we must view the evidence in the light
       most favorable to the verdict. … When reviewing all of the evidence in
       a light favorable to the verdict, “courts must assume jurors made all
       inferences in favor of their verdict if reasonable minds could, and
       disregard all other inferences in their legal sufficiency review.”

Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620-21 (Tex. 2014) (quoting City of

Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005), citations omitted).

       Westfreight argues that there is no evidence of causation, but Westfreight

neither attempts to explain away (nor even cites1) this unambiguous evidence of


1
  “The duty of honesty and candor a lawyer owes to the appellate court includes fairly portraying
the record on appeal.” In re ADT Sec. Servs., S.A. de C.V., No. 04-08-00799-CV, 2009 WL
260577, at *4-5 (Tex. App.—San Antonio Feb. 4, 2009, orig. proceeding) (quoting Schlafly v.
Schlafly, 33 S.W.3d 863, 873 (Tex. App.-Houston [14th Dist.] 2000, pet. denied)); see also In re
City of Lancaster, 228 S.W.3d 437 (Tex. App.-Dallas 2007, no pet.); In re Lerma, 144 S.W.3d 21,
27 (Tex. App.-El Paso 2004, orig. proceeding); Sossi v. Willette & Guerra, LLP, 139 S.W.3d 85,
89 (Tex. App.-Corpus Christi 2004, no pet.).

                                               9
causation:

      Well, the collision would not have happened unless they pulled the
      trailer not just into the right lane, but where it's straddling the center
      line of the roadway. Because remember, we know exactly where that
      van impacted the rear of the trailer. We know where that was in the
      roadway. It left fingerprints in the roadway, those gouge marks. So it
      would have had to have backed over onto the shoulder and then pulled
      out some and pulled into the middle of the roadway splitting both lanes
      before it was struck…. [T]he reason this collision occurred is because
      the driver chose to back the vehicle out, it's in the lane crossing the
      roadway, blocking the roadway for over 60 seconds. It's in the left travel
      lane for the tail lights, and then it's moving into the right travel lane.
      The driver and the co-driver, neither one were aware of oncoming
      traffic. And to pull a truck out there and to block the roadway with it
      is certainly not a prudent thing to do. It's not what any reasonable
      truck driver would do. It's a known hazard not only to the trucking
      industry, but to probably everybody in this room that you don't have a
      hard, fixed object in a dark roadway at night.

4 RR 81-83.

      In addition to this causation testimony, Westfreight’s Safety Director admitted

that this crash was preventable and would not have occurred if Westfreight’s driver

had not violated Westfreight’s policy to operate safely, 5 RR 272, by improperly

pulling into Janie Garza’s lane without first making sure the lane was clear:

      Q.      Preventable accident … means it could have been prevented but
              for something that the 18-wheeler driver did, right?
      A.      Okay.
      Q.      That is what that means, right?
      A.      Yes.
      …
      Q.      Had they not pulled out in the lanes of travel without making sure
              it was clear of approaching traffic, again, could have prevented
              this from happening, correct?

                                          10
      A.     Yes. Yes.

5 RR 275-76.

    2. Westfreight misunderstands “but for” and “substantial factor” analysis

      Westfreight’s argument that Heuston, Rodriguez, and the Estate of Garza

applied an incorrect standard or definition of causation is also wrong.

      “But for causation” and “substantial factor” analysis are just two ways to

describe the cause-in-fact element of proximate cause:

      The components of proximate cause are cause in fact and foreseeability.
      ... Cause in fact is essentially but-for causation. In other words, a
      tortious act is a cause in fact if serves as “a substantial factor in causing
      the injury and without which the injury would not have occurred.”

Ryder Integrated Logistics, Inc. v. Fayette County, --- S.W.3d ----, No. 13-0968,

2015 WL 496303, at *4 (Tex. Feb. 6, 2015) (quoting Del Lago Partners, Inc. v.

Smith, 307 S.W.3d 762, 774 (Tex. 2010), and citing W. Invs., Inc. v. Urena, 162

S.W.3d 547, 551 (Tex. 2005)).

      “But for” and “substantial factor” are overlapping concepts that yield the same

result in routine cases, such as this, and substantial factor analysis is simply a more

general standard allowed when a claimant cannot show strict “but for” causation:

      As we attempt to clarify, “but for” and “substantial factor” are
      overlapping concepts and, to the extent they embody different tests,
      application of those tests usually lead to the same result. … We have
      often recognized but for causation, alone or in combination with
      substantial factor causation, as the standard for establishing causation
      in fact. … Nor is there anything unusual in our recognizing but for

                                           11
      causation as the causation standard in tort cases. The Restatement
      Second of Torts in section 431 generally recognizes that an “actor's
      negligent conduct is a legal cause of harm to another if [] his conduct is
      a substantial factor in bringing about the harm.” … The Restatement
      Third of Torts likewise embraces but for causation as the general
      causation standard in tort cases. Section 26 of the subtitle on Liability
      for Physical and Emotional Harm provides: “Tortious conduct must be
      a factual cause of harm for liability to be imposed. Conduct is a factual
      cause of harm when the harm would not have occurred absent the
      conduct.” The Restatement Third not only embraces but for causation,
      but includes some criticism of the substantial factor test….However,
      we follow Flores and conclude that in products liability cases where the
      plaintiff was exposed to multiple sources of asbestos, substantial factor
      causation is the appropriate basic standard of causation without
      including as a separate requirement that the plaintiff meet a strict but
      for causation test. … Again, our approach did not break new ground.
      While but for causation is a core concept in tort law, it yields to the
      more general substantial factor causation in situations where proof of
      but for causation is not practically possible or such proof otherwise
      should not be required.

Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332, 342-44 (Tex. 2014) (footnotes to

citations omitted).

      Westfreight’s own witnesses admitted “but for” causation linking the

negligent acts of Westfreight’s driver and its spotter:

      Q.     Is it negligent for these gentlemen not to be looking for
             approaching motorists on the roadway that night?
      A.     It would be negligent of them not to follow a recommended
             procedure of watching, look out around – in and around – front
             of, back, side of the vehicle.
      Q.     Okay. And they didn’t do that, correct?
      A.     Not to my satisfaction, no, sir.
      Q.     Okay. And that would be negligent for them not to, right?
      A.     I’m afraid it would be.
      …

                                          12
         Q.      [U]nder that federal regulation, preventable accident on the part
                 of a motor carrier means an accident that involves a commercial
                 motor vehicle that could have been averted but for an act or
                 failure to act by the motor carrier or the driver. … Do you agree
                 that under that definition this is a preventable accident, right?
         A.      Yes.
         …
         Q.      Preventable accident under that means it could have been
                 prevented but for something that the 18-wheeler driver did,
                 right?
         A.      Okay.
         Q.      That is what that means, right?
         A.      Yes.
         …
         Q.      Had they not pulled out in the lanes of travel without making sure
                 it was clear of approaching traffic, again, could have prevented
                 this from happening, correct?
         A.      Yes. Yes.

5 RR 203-04, 274-76.         Westfreight is mistaken when it argues that there is no

evidence of causation despite its own admissions that “but for” the negligent conduct

of Westfreight’s driver and spotter, the preventable crash would not have happened.

         3. Proof of foreseeability and reckless disregard of foreseen dangers

         As mentioned above, the two elements of proximate cause are “cause in fact

and foreseeability.” Ryder Integrated Logistics, --- S.W.3d ----, 2015 WL 496303,

at *4.    Just like the ample evidence of cause in fact, the evidence of foreseeability

is also clear:

         Q.      Can you think of any reason why if someone who's pulling off of
                 the right-hand shoulder into the right-hand lane of travel ends up
                 in the middle of the road?
         A.      No. That would be a – a negligent thing to do because it's

                                             13
             certainly a foreseeable hazard to pull out in a slow-moving truck
             and to block those lanes.
      Q.     Can you think of any reason why an 18-wheeler pulling off of
             the right-hand shoulder into a lane of travel should be pulling in
             front of an approaching motorist?
      A.     No. Because a truck driver is aware … that he's not driving a
             Ninja motorcycle that can get up to the speed limit in a couple of
             seconds. He knows it's going to be a very slow-moving vehicle.
             And so what … he's doing if he does do that, move from the
             shoulder onto the travel lane, is he's putting 100 percent of the
             avoidance on the other person, taking no responsibility himself.

4 RR 81-82 (emphasis added).     These risks are dangers “that all trucking companies

are aware of and should be aware of” because these risks are “something that's taught

in all the documents related to safety.” 4 RR 147.

      More than mere foreseeability, the record contains further evidence that the

Westfreight driver knew of the risks and recklessly disregarded them (which is

testimony that meets and far surpasses the foreseeability threshold):

      Q.     Would you agree when we’re talking about backing out onto a
             highway, if there is traffic on that highway, that that is something
             that involves an extreme degree of risk?
      A.     With highway – or with traffic on the road, yes.
      Q.     Okay. And when I mean – when I say traffic, I’m not talking
             about it’s rush hour. I’m talking about the road is being
             traveled, there are people on the roadway, a vehicle might come
             upon you?
      A.     Correct.
      Q.     Okay. That involves an extreme degree of risk, correct?
      A.     To an extent, yes.
      …
      Q.     And you had awareness of that risk at that time, correct?
      A.     Yes.
      …

                                          14
      Q.     Notwithstanding the fact that you were consciously aware of
             that risk, you chose to back out on the highway; is that correct?
      A.     Correct.

5 RR 187-88 (emphasis added); see also 5 RR 40-41, 57-58.

C. Westfreigh reduced Garza’s ability to perceive the intrusion into her lane

      The jury heard testimony that “the Government of the United States” requires

“retroreflective tape on” trucks “to improve the safety for trailers that find

themselves across the road at night.” 6 RR 88.      Specifically, the Code of Federal

Regulations provides that trucks cannot be driven if their reflective tape has become

obscured by dirt:

      No commercial motor vehicle shall be driven when any of the lamps or
      reflective devices/material required by subpart B of part 393 of this title
      are obscured by the tailboard, or by any part of the load or its covering,
      by dirt, or other added vehicle or work equipment or otherwise.

49 CFR § 392.33(a).

      In this case, there was photographic proof that much of the reflective tape was

obscured by its placement behind the tires and placed where the tape would not be

visible from an angle.   4 RR 224-25. In addition, the reflective tape and lights on

the truck were inspected shortly after the crash, and – as part of this inspection –

photographs of the tape and lights at the inspection were compared to photographs

of the reflective tape and lights taken right after the crash.    4 RR 230-31. The

jurors were provided with an opportunity to assess these photographs for themselves.


                                          15
4 RR 229-31; Ex. 184; Ex. 184-A; Ex. 253. The lights were dirty, and the reflective

tape was so obscured that it was of negligible efficacy. 4 RR 234-42; Ex. 269.

      Proof that a truck has dirt obscuring the reflective tape explains why an

approaching driver may see part of the tractor-trailer in one lane but not see the non-

reflective remainder of the tractor-trailer in the other lane:

      The regulation provides that reflective material shall not be obscured
      by dirt or otherwise. 49 C.F.R. § 392.33(a). It can be said that the
      regulation supplies a particular standard of conduct for an existing
      common law duty. In other words, the jury could still consider the
      violation of Section 392.33 as evidence of negligence, because the jury
      could have found that a reasonable person of ordinary sensibilities,
      under the circumstances of this case, would have ensured that the
      reflective taping was not obscured by chicken feces. … The evidence,
      as described above, showed that Burnett saw the cab portion of the
      tractor-trailer and was focused on its lights. He testified that he did not
      see that the trailer occupied his lane until just prior to impact, because
      he did not see any reflective material.

Pilgrim's Pride Corp. v. Burnett, No. 12–10–00037–CV, 2012 WL 381714, at *12

(Tex. App.-Tyler Feb. 3, 2012, no pet.) (mem. op.); Orren v. BWF Corp., NO.

CA2013-11-112, 2015 WL 135365, 2015-Ohio-62 (Ohio App. 12 Dist. Jan 12,

2015) (“dirt obscured much of the back of the truck, including the … reflective

conspicuity tape that had been placed on the back of the truck”).

      Moreover, Westfreight’s spotter admittedly had a flashlight and a safety vest

with reflective tape as well as reflective coveralls, but Johnston chose not to use the

flashlight or to wear either the safety vest or the reflective coveralls when spotting


                                           16
that night.   5 RR 37-39.     The spotter further admitted that his conduct put the

public and Janie Garza at grave risk:

      Q.      The night that you stepped out here, you didn’t just put Ms. Garza
              and other people at risk, you put yourself at risk, didn’t you?
      A.      Yes, sir.
      Q.      And that was an unnecessary risk, wasn’t it?
      A.      Yes, sir.
      Q.      There were better ways to do this?
      A.      Yes, sir.
      …
      Q.      It’s not reasonably prudent, is it?
      A.      No, sir.
      Q.      It puts not only yourself, but it puts the motoring public in grave
              danger, doesn’t it?
      A.      Yes.

5 RR 40-41, 57-58. Westfreight’s trucking safety expert admitted the spotter was

unable to alert oncoming traffic because of his decision not to use his flashlight or

reflective safety gear:

      Q.      While they’re blindsiding the 18-wheeler out onto the darkened
              highway in Alice, Texas, what is Mr. Johnston doing?
      A.      He’s acting as a spotter at the left rear of the – of the commercial
              – the tractor-trailer.
      …
      Q.      What the heck is he going to do if a car is coming? What …
              would you recommend that fellow to do in the roadway?
      A.      Continue to stand off to the side and wave his arms the best he
              can.
      Q.      Wave his arms in the dark?
      A.      But get – try to get out of the way as best he can.
      …
      Q.      In terms of warning approaching traffic, what in the world can
              this guy do standing out here?
      A.      Without a flashlight, he couldn’t accomplish much.

                                           17
      Q.    Okay. He can’t do anything to warn approaching motorists
            standing out in a darkened highway without a flashlight or
            reflective gear. Fair?
      A.    That’s correct.
      Q.    Okay. And when I say warn approaching motorists, I’m saying
            trying to get the attention of approaching motorists to let them
            know there’s an 18-wheeler in the roadway. He can’t do that if
            he’s not got a flashlight, right?
      A.    He can’t do it.
      Q.    Do you even understand that that was part of his intention for
            being out there was to warn approaching motorists?
      A.    Yes, sir.
      Q.    Is that your understanding?
      A.    Yes, sir.
      Q.    Okay. Well – so, we’ve got a guy who’s a part of an 18-wheeler
            team. He’s out on the highway by his own claim, in part, to
            warn approaching motorists and he’s doing it in a way that you,
            an 18-wheeler expert, says you cannot warn approaching
            motorists, right?
      A.    He – he wouldn’t be very effective, no.
      Q.    All right. Does that give you any qualms at all about generally
            how safely these guys were behaving?
      A.    They weren’t following a – a recommended procedure for the
            spotter to – to do.

5 RR 193-94.

      Westfreight’s complaints that Janie Garza should have seen the truck blocking

both lanes on a dark night “is reminiscent of the tale of the child who, having

murdered its parents, asks mercy as an orphan.”      See VTech Holdings Ltd. v.

PriceWaterhouseCoopers LLP, 348 F.Supp.2d 255, 265 (S.D.N.Y. 2004).

D. Westfreight’s complaints about expert methodology were not preserved

      Westfreight complains on appeal about the methodology and foundational


                                        18
data used to test the reflectivity of the safety tape on the Westfreight trailer.   Yet

“an objection is required … when a challenge to expert testimony questions the

underlying methodology, technique, or foundational data used by the witness”

because a “challenge to the reliability of a scientific process or technique, for

example, must be timely made in order to allow the court to exercise its gatekeeper

function.” Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227,

229 (Tex. 2004). “An objection is required to give the proponent a fair opportunity

to cure any deficit and thus prevent trial by ambush.”         City of San Antonio v.

Pollock, 284 S.W.3d 809, 816-17 (Tex. 2009)

      Realizing that Westfreight failed to raise these objections in the trial court,

Westfreight now tries to characterize these unpreserved appellate complaints as

objections to the conclusory nature of the expert testimony.

      A conclusory expert opinion, which may be attacked for the first time on

appeal, is testimony where “no basis for the opinion is offered, or the basis offered

provides no support.”    City of San Antonio, 284 S.W.3d at 818.        As succinctly

explained by the Texas Supreme Court, an expert’s opinion is conclusory where the

expert simply asks the jury to “take my word for it.”      Arkoma Basin Exploration

Co. v. FMF Assoc. 1990–A, Ltd., 249 S.W.3d 380, 388 (Tex. 2008) (quoting Burrow

v. Arce, 997 S.W.2d 229, 236 (Tex. 1999)); see also Gen. Motors Corp. v. Sanchez,

997 S.W.2d 584, 591-92 (Tex. 1999) (expert testimony where “there is more to the

                                          19
evidence than an expert's bald assertion” is “more than a scintilla of evidence”).

      Westfreight complains on appeal that that the expert should not have relied on

two studies about reflective tape and should have tested the amount of light emitted

from the dirt encrusted lights on the trailer in addition to testing the reflective tape.

Westfreight Br. pp. 21, 23-25, 27-30.       These are complaints about the expert’s

methodology and foundational data, and Westfreight offered neither any evidence at

trial nor any objection at trial to support this appellate-counsel-invented

methodology. “A litigant that wants a court of appeals to set aside a district judge's

decision to admit expert testimony has to do more than appeal to a lawyer's sense of

how science should be done.” Formosa Plastics Corp., USA v. Kajima Intn'l, Inc.,

216 S.W.3d 436, 452 n. 4 (Tex. App.-Corpus Christi 2006, pet. denied).

E. Heuston and Rodriguez preserved and fully briefed their cross-point

      “Appellate briefs are to be construed reasonably, yet liberally, so that the right

to appellate review is not lost by waiver,” and – accordingly – “appellate courts

should reach the merits of an appeal whenever reasonably possible.” Perry v.

Cohen, 272 S.W.3d 585, 587 (Tex. 2008).             An appellant meets “its briefing

obligations” with “a clear and concise argument for the contentions made, with

appropriate citations to authorities and to the record.”   Weeks Marine, Inc. v. Garza,

371 S.W.3d 157, 162 (Tex. 2012) (quoting Tex. R. App. P. 38.1(i)).



                                           20
      Heuston and Rodriguez cited four cases regarding the Court’s standards for

conducting a factual sufficiency review, including the leading case applying this

standard to the review of the jury’s apportionment finding, as well a fifth case that

discussed the Court’s authority to consider the interests of justice: Daven Corp. v.

Tarh E & P Holdings, L.P., 441 S.W.3d 770, 776 (Tex. App.-San Antonio 2014, pet.

filed); Flying J Inc. v. Meda, Inc., 373 S.W.3d 680, 690–91 (Tex. App.-San Antonio

2012, no pet.); Ingham v. O'Block, 351 S.W.3d 96, 100 (Tex. App.-San Antonio

2011, pet. denied); Jackson v. Williams Bros. Constr. Co., 364 S.W.3d 317, 325

(Tex. App.-Houston [1st Dist.] 2011, pet. denied); Royce Homes, L.P. v. Humphrey,

244 S.W.3d 570, 582 (Tex. App.-Beaumont 2008, pet. denied).

      Heuston and Rodriguez provided record citations to Westfreight’s efforts to

coach specific exculpatory testimony from a key witness who is Westfreight’s

employee, 5 RR 103, and record citations to the jury’s apportionment finding, CR

557, and to both sides’ trial court papers disputing the basis for the jury’s

apportionment finding: CR 581, 587, 594.      All of this specific briefing was offered

in the context of a 49-page brief with a very detailed summary of the record

supported by record citations. Westfreight’s argument that this issue is waived due

to inadequate briefing is frivolous.




                                         21
                                  IV.   PRAYER

      WHEREFORE, PREMISES CONSIDERED, Heuston, Rodriguez, and the

Garza Estate pray for this Court (1) to deny Westfreight’s legal sufficiency challenge

and (2) to remand this case for a new trial of their claims against Westfreight and

Bailey and (3) for such other and further relief as may be justly awarded in light of

the circumstances set forth above.

                                        Respectfully submitted,

                                 BY: /s/ John Blaise Gsanger
                                     John Blaise Gsanger
                                     SBN: 00786662
                                     David T. Bright
                                     SBN: 02991490

                                        THE EDWARDS LAW FIRM
                                        802 N. Carancahua, Suite 1400
                                        Corpus Christi, TX 78401
                                        Tel: (361) 698-7600
                                        Fax: (361) 698-7614
                                        jgsanger@edwardsfirm.com

                                        David T. Bright
                                        SBN: 02991490
                                        SICO, WHITE, HOELSCHER, HARRIS
                                         & BRAUGH, LLP
                                        802 N. Carancahua, Suite 900
                                        Corpus Christi, Texas 78401
                                        Tel: (361) 653-3300
                                        Fax: (361) 653-3333

                                        ATTORNEYS FOR APPELLANT
                                        JOHN MICHAEL HEUSTON, ET AL.


                                          22
          V.   CERTIFICATE OF COMPLIANCE AND SERVICE

The undersigned attorney, as one of the attorneys of record, hereby certifies that the

above and foregoing brief, contains 5,656 words according to the word count of the

computer program used to prepare this document and that this brief has been served

upon counsel of record as indicated below by the method of service indicated below

on this 9th day of February, 2015.

                                       /s/ John Blaise Gsanger
                                       John Blaise Gsanger

Via e-mail to
brian.miller@roystonlaw.com
chris.lowrance@roystonlaw.com
Brian Miller
Christopher Lowrance
ROYSTON, RAYZOR, VICKERY
 & WILLIAMS, LLP
802 N. Carancahua, Suite 1300
Corpus Christi, Texas 78401
Counsel for Appellant Westfreight System Inc.

Via e-mail to
khood@fabregahood.com
Kevin L. Hood
FABREGA HOOD LLP
1800 St. James Pl., Suite 304
Houston, Texas 77056
Counsel for additional trial court defendant
National Oilwell Varco LP

Via e-mail to
crkeener@aol.com

                                         23
Craig R. Keener
CRAIG R. KEENER PC
1005 Heights Blvd.
Houston, Texas 77092
Counsel for additional trial court defendant
National Oilwell Varco LP




                                        24
