                    NUMBER 13-09-00536-CV

                    COURT OF APPEALS

             THIRTEENTH DISTRICT OF TEXAS

               CORPUS CHRISTI - EDINBURG

ERNEST BELMAREZ, EDDIE GUAJARDO,
WILLIAM PHILLIPS, CHRIS SHANNON,
RAMICO RAMOS, AND NORMA MAYORGA,                        Appellants,

                                v.

FORMOSA PLASTICS CORPORATION, TEXAS,
FORMOSA PLASTICS CORPORATION, U.S.A., ET
AL.,                                                     Appellees.


              On appeal from the 135th District Court
                   of Calhoun County, Texas.


                  MEMORANDUM OPINION
 Before Chief Justice Valdez and Justices Rodriguez and Benavides
            Memorandum Opinion by Justice Benavides
        This appeal arises from a take-nothing jury verdict on a personal injury lawsuit

resulting from a fire that occurred at the Formosa Plastics Corporation USA (―Formosa‖)

plant in Point Comfort, Texas.           By five issues, appellants Ernest Belmarez, Eddie

Guajardo, William Phillips, Chris Shannon, Norma Mayorga, and Ramico Ramos

(collectively ―Plaintiffs‖),1 argue the trial court erred when it:         (1) excluded the Taproot

Incident Report from evidence; (2) excluded OSHA Citations and Notices of Penalty

issued to Formosa from evidence; (3) admitted evidence regarding Plaintiffs’ failure to

file workers’ compensation claims; (4) excluded the Social Security disability findings for

Belmarez and Guajardo; and (5) allowed jury argument regarding Plaintiffs’ counsel’s

character, professional ethics, and integrity, which caused incurable error. We affirm.

                                           I. BACKGROUND

        On October 6, 2005, Defendant Fernando Rivera, a forklift operator, accidentally

hit a valve while driving a forklift and towing a trailer in the Olefins II unit at the Formosa

plant. The accident released liquid propylene into the air, causing a fire and several

explosions.     Formosa ordered immediate evacuation of the plant.

        Plaintiffs, persons who worked at the plant but were not employed by Formosa,

claimed they were injured while fleeing the incident. Their injuries consisted primarily of

back and shoulder problems.            They also claimed to have developed post-traumatic

stress syndrome in response to this event. Plaintiffs sued five sets of defendants:                   (1)


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             According to Plaintiffs, the Formosa explosion generated approximately sixty-five claims for
personal injury. The six Plaintiffs in the underlying case were chosen as a ―test case‖ to help manage the
overall litigation related to the Formosa plant incident.

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Formosa, the plant owner and operator; (2) Rivera, the forklift driver; (3) Rivera’s

employer, HP Services, L.P., and management by H&P LLC (―HP Services‖), a

contractor working at the Formosa plant; (4) U.S. Contractors, Ltd., U.S. Contractors

Management, LLC, and U.S. Contractors Merger, LLC (―U.S. Contractors‖), another

contractor working at the Formosa plant; and (5) Kellogg Brown & Root, LLC, and M.W.

Kellogg Constructors, Inc. (―KBR‖), the plant designer. After a trial that lasted over a

month in March 2009, the jury returned a taking-nothing verdict as to all six Plaintiffs.

Plaintiffs appealed.

                                   II. EVIDENTIARY ISSUES

A.     Standard of Review

       The admission and exclusion of evidence is within the trial court's sound

discretion.   See Bay Area Healthcare Group Ltd. v. McShane, 239 S.W.3d 231, 234

(Tex. 2007); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1994). ―The

test for abuse of discretion is whether the trial court acted without reference to any

guiding rules or principles.‖   E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d

549, 556 (Tex. 1995). The trial court’s ruling should only be reversed if it was arbitrary

or unreasonable.       See id.; Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,

241–42 (Tex. 1985).

       To constitute reversible error, this Court must find that the district court’s errors

probably caused the rendition of an improper judgment or prevented Plaintiffs from

properly presenting their case.   See Bay Area Healthcare, 239 S.W.3d at 234; see also


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TEX. R. APP. P. 44.1.        The complaining party must show that, when the record is

reviewed as a whole, the judgment turns on the particular piece of evidence excluded or

admitted.     See City of Brownsville, 897 S.W. 2d at 753-54. The reviewing court then

determines whether the case turns on the evidence excluded by reviewing the entire

record.     Id. at 754.   Error in exclusion of evidence does not require reversal if excluded

evidence is cumulative of other evidence.           See Williams Distrib. Co. v. Franklin, 898

S.W.2d 816, 817 (Tex. 1995).

B.     The Exclusion of the Taproot Incident Report

       1. The Taproot Incident Report

       The record shows that, following the plant fire and explosions, defendants

Formosa, U.S. Contractors, and HP Services (but not KBR) appointed various

employees to a group to conduct a post-accident investigation.              According to the

testimony of Darrell Loewe, a lead supervisor at Formosa and the team leader of the

group, the purpose of this ten-member team was to investigate the causes of the

incident.    Each team member had a different expertise to help determine the underlying

circumstances surrounding the fire and explosions.

       Loewe testified that his team used Taproot software to generate a report

documenting their investigation.        Taproot software is a computer program that is

commonly used in the petrochemical industry.           Loewe stated that he, as well as other

members of his team, were trained and certified in using the software.          He explained

that although the Taproot report indicates causal factors of the incident, these factors are


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determined by the team as a result of the information they gather.             The Taproot

software also issues a ―Corrective Actions Report‖ with recommendations on how to

improve plant functions.   He explained that ―we look into the incident in a way that we

could possibly eliminate it from happening again or at least mitigate a situation should it

ever develop again.‖

       Plaintiffs sought to admit the final Taproot Incident Report, claiming it was

―undoubtedly [their] best item of evidence‖ because it would demonstrate that Formosa,

U.S. Contractors, and HP Services agreed with many of Plaintiffs’ theories of causation.

The trial court, however, excluded the report from evidence. In a hearing outside the

presence of the jury, the trial court explained its reasoning for the exclusion:

       What I’m concerned about is the existence of a post-accident investigation
       by a Defendant that includes recommendations, whether they are
       implemented or not, which I think would be tantamount to subsequent
       remedial measures. That doesn’t mean that those individuals that were
       involved in this team, who have knowledge that is relevant to this case
       either through, you know, direct experience with the actual fire or
       explosion, or from working out at the plant, similar conditions. That
       doesn’t mean that you can’t call them to testify and ask them about
       procedures that were ongoing, for example, or opinions about causation
       without a reference to the investigation. That’s what I’m concerned about
       is the jury finding that or hearing that there was an investigation after the
       accident and that the investigation had these findings and conclusions and
       recommendations.

       Plaintiffs claim the exclusion of the Taproot report was error for several reasons:

(1) the report was not a subsequent remedial measure; (2) assuming it was a

subsequent remedial measure, it should have been admitted to show that certain safety

measures were feasible; (3) it could have impeached the testimony of Formosa witness


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Leonard Tung; and (4) it did not unfairly prejudice the Defendants. We analyze these

issues in turn.

       2. Analysis

       a. Subsequent Remedial Measures

       Texas Rule of Evidence 407 addresses subsequent remedial measures:

       When, after an injury or harm allegedly caused by an event, measures are
       taken that, if taken previously, would have made the injury or harm less
       likely to occur, evidence of the subsequent remedial measures is not
       admissible to prove negligence, culpable conduct, a defect in the product,
       a defect in a product’s design, or a need for a warning or instruction. This
       rule does not require the exclusion of evidence of subsequent remedial
       measures when offered for another purpose, such as proving ownership,
       control, or feasibility of precautionary measures, if controverted, or
       impeachment.

TEX. R. EVID. 407(a).   ―Rule 407(a) embodies the well-established policy that parties

should not be discouraged from making safety improvements after an accident because

those improvements may be used against them as evidence of their own negligence.‖

See Brookshire Bros. v. Lewis, 911 S.W.2d 791, 796 (Tex. App.—Tyler 1995, writ

denied).

       Plaintiffs argue that the Taproot report is admissible because it is merely an

investigative report and does not indicate any remedial changes Formosa might make.

We disagree with Plaintiffs’ assessment. The testimony of Loewe indicated that the

Taproot Incident Report’s purpose was to remedy conditions so the accident would not

occur again. According to Loewe, the program did not determine fault, assign blame, or

assess percentages of responsibility.       Further, the report issued eight specific


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Corrective Actions which can be considered subsequent remedial measures.            Later in

the report, there are two tables which listed each proposed Corrective Action and the

department or persons responsible for implementing it and spaces for the

implementation due date and completion date.

       We hold that the trial court did not act without guiding rules or principles when it

determined that the Taproot Incident Report was inadmissible as a subsequent remedial

measure.    See E.I. Du Pont, 923 S.W.2d at 556; see also TEX. R. EVID. 407.

       b. Proof of Feasibility

       In the alternative, Plaintiffs argued that the Taproot Incident Report should have

been admitted because it was offered for another purpose—to show the feasibility of

certain precautionary measures.      See TEX. R. EVID. 407. Plaintiffs specifically mention

that ―Taproot would have directly undercut Defendants’ claims that protecting the

process piping was not feasible. . . .‖ They aver that the Taproot report was necessary

to counter the overwhelming testimony from Formosa employees who testified that the

implementation of such piping would be dangerous, complicated, or impractical.

       However, our review of the Taproot Incident Report does not reveal that this

piping was mentioned, or that emergency isolation valves (EIV’s), remote control valves,

or any other changes to the process piping or valves were mentioned. Therefore, the

report cannot be used to show feasibility.     Accordingly, we find that the trial court was

within its discretion to exclude the report for this reason.   See Bay Area Healthcare, 239

S.W.3d at 234. It did not act unreasonably or arbitrarily.      See Downer, 701 S.W.2d at


                                              7
241–42.

       c. Impeachment Evidence Against Formosa Witness Leonard Tung

       Leonard Tung, a Formosa Section Manager in the Olefins II unit and a member of

the Taproot investigation team, testified at trial that he had seen a forklift driver driving

―carelessly and erratically‖ before the date in question, but he denied knowing that this

forklift driver was Rivera.    Plaintiffs argued that the Taproot report should have been

admissible for the limited purpose of impeaching Tung, as he apparently testified earlier

that he knew the careless driver was Rivera.

       We find this argument unpersuasive for two reasons.          First, Plaintiffs did not

attempt to offer the relevant page or pages of the Taproot report that might have

impeached Tung; instead, they insisted on offering the entire report.     See TEX. R. EVID.

105(b) (―When evidence . . . is excluded, such exclusion shall not be a ground for

complaint on appeal unless the proponent expressly offers the evidence for its limited,

admissible purpose. . . .‖).    The trial court was thus within its discretion to deny this

overbroad request.    See Bay Area Healthcare, 239 S.W.3d at 234.          Second, error in

excluding evidence is harmless where there is cumulative evidence to the same effect.

See Whitener v. Traders and Gen. Ins. Co., 155 Tex. 461, 289 S.W.2d 233, 236 (1956);

Bullard v. Universal Underwriters, Ins. Co., 609 S.W.2d 621, 626 (Tex. Civ.

App.—Amarillo 1980, no writ).       Here, there was indirect testimony from Loewe which

brought Tung’s credibility as a witness into question:

       Q. [Counsel]           Mr. Loewe, did anybody from Formosa ever tell you
                              that they saw Mr. Rivera driving a forklift erratically

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                             prior to this October 6th, 2005 [incident]?

               ....

        A. [Loewe]           Yes.

        Q. [Counsel]         And that person that told you that he saw Mr. Rivera
                             driving erratically prior to October 6 th, 2005 was Mr.
                             Tung, Mr. Leonard Tung?

        A. [Loewe]           That’s correct.

        In light of the foregoing, we conclude that the trial court did not act arbitrarily or

unreasonably when it denied the admission of the Taproot report to impeach Tung.

See Downer, 701 S.W.2d at 241–42.

        d. No Unfair Prejudice

        Plaintiffs also argued that the Taproot Incident Report was admissible because its

probative value outweighed the danger of unfair prejudice, confusion of the issues,

misleading the jury, undue delay, or needless presentation of cumulative evidence.

See TEX. R. EVID. 403.      However, the record shows that KBR did not have any of its

employees on the Taproot investigative team.          Admission of the report could have

misled the jury or caused confusion about KBR’s participation or liability in this regard.

Id.   Further, the issue of cumulative evidence is relevant in light of the fact that the trial

court mentioned that the Taproot team members could be called as witnesses.           The trial

court stated that the Taproot team participants could testify regarding their ―direct

experience with the actual fire or explosion, or from working out at the plant,‖

―procedures that were ongoing,‖ and their ―opinions about causation.‖ Four members of


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the ten-member team did testify at trial (Loewe, Tung, Eugene Rease, and Vince

Means), and two other team members (Matt Heibel and Bob Kotrla) had their depositions

read at trial. Because of these considerations, we hold that the trial court reasonably

excluded the Taproot Incident Report on this basis.      See Bay Area Healthcare, 239

S.W.3d at 234

      We overrule Plaintiffs’ first issue.

C.    The Exclusion of the OSHA Citations and Notices of Penalty

      By their second issue, Plaintiffs argue the trial court erred when it failed to admit

the OSHA Citations and Notices of Penalty against Formosa. Plaintiffs contend that the

OSHA citations should have been admitted because:          they are generally admissible

under Texas Rule of Evidence 803(8); Defendants opened the door on their

cross-examination of Roger Craddock; their probative value outweighed the danger of

unfair prejudice; and this Court should hold to our precedent in Valenzuela v. Heldenfels.

See No. 13-04-241-CV, 2006 Tex. App. LEXIS 7122, at *7 (Tex. App.—Corpus Christi

Aug. 10, 2006, no pet.) (mem. op.).

      Assuming without deciding that the trial court did not abuse its discretion, after a

careful review of the OSHA citations and notices of penalty, we find that the information

contained within them was cumulative of other evidence presented at trial.            See

Williams Distrib. Co., 898 S.W.2d at 817.         Accordingly, any possible error in the

exclusion of this evidence would have been harmless.       See Whitener, 289 S.W.2d at

236. We overrule this issue.


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       D.     Evidence Regarding Failure to File Workers’ Compensation Claims

       Plaintiffs, in their third issue, argue that the trial court erred when it admitted

evidence regarding their failures to file worker’s compensation claims.      Plaintiffs initially

filed a motion in limine to prevent the parties from discussing this matter. The trial court

granted the motion, but clarified its ruling as follows:

       I think at this time the way I want to handle this is to grant this motion as to
       the language [―]worker’s comp claim[‖] or [―]worker’s comp insurance.[‖] I
       think the defense can say, did you make a claim against your employer for
       these injuries and leave it at that at this time. If the door is opened
       because of, you know, financial inability to do this or that, then we can
       revisit this and they can get into it.

       The record shows, however, that most of the Plaintiffs cited financial difficulties as

the reason for not immediately seeking health care during their testimonies at trial. For

example, Shannon admitted, ―I’m poor. I can’t afford a doctor.‖ Mayorga testified, ―I

didn’t have the money to go see the doctor.‖ We thus hold that it was within the trial

court’s discretion to determine that the failure to file worker’s compensation claims

became relevant when Plaintiffs opened the door regarding their inability to seek health

care immediately. We overrule Plaintiff’s third issue.

E.     The Exclusion of Social Security Disability Findings

       By their fourth issue, Plaintiffs contend the trial court erred when it excluded the

social security disability findings for Plaintiffs Guajardo and Belmarez.

       1. Guajardo Disability Finding

       Plaintiffs argued that Guajardo’s Social Security disability finding should have

been admitted to counter Defendants’ assertions that Guajardo’s disability status was

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based on his diabetes and hypertension, not the injuries he sustained during the

Formosa plant incident.

       A review of this document, however, shows that it is an uncertified copy of

Guajardo’s disability findings from the Social Security Administration.    As such, it is

hearsay.   See TEX. R. EVID. 801(d) (―hearsay is a statement . . . offered in evidence to

prove the truth of the matter asserted.‖). The record does not show, and we do not find,

any references to where Plaintiffs may have laid a proper predicate to show that the

proffered document could fit under a hearsay exception, such as a business record.

See id. at R. 803(8). In response to Plaintiffs’ contention that the document was not

hearsay but rather a prior consistent statement, we find nothing in the document

indicating that Guajardo was cross-examined at his disability hearing as required by

Texas Rule of Evidence 801(e)(1)(B)      See id. at R. 801(e)(1) (holding that a statement

can be considered a prior consistent statement if ―the declarant testifies at the trial or

hearing and is subject to cross-examination concerning the statement . . . .‖).   It is also

not clear whether the disability finding is Guajardo’s ―statement,‖ as it is a document

issued by a federal agency and not Guajardo himself.       Finally, because the document

was not certified, its authenticity was at issue. See id. at R. 902(4).

       For all of these reasons, the trial court was within its discretion to exclude the

foregoing document. See Bay Area Healthcare, 239 S.W.3d at 234.

       2. Belmarez Disability Finding

       Plaintiffs further argue that the trial erred in excluding the Belmarez disability


                                            12
finding, but this exhibit also proves problematic.    The proffered exhibit consists of two

letters—one dated March 20, 2009, and the other dated April 21, 2009.         Neither letter is

certified, which again calls into question the issue of authenticity.      See TEX. R. EVID.

902(4). Furthermore, the second letter appears to be missing pages—pages two, four,

seven, and nine are absent from this nine page letter.

       We hold that the trial court did not act arbitrarily or unreasonably in excluding both

the Guajardo and Belmarez disability findings.       See E.I. du Pont, 923 S.W.2d at 556;

Downer, 701 S.W.2d at 241–42. We overrule Plaintiffs’ fourth issue.

                                 III. JURY ARGUMENT ISSUE

A.     Standard of Review and Applicable Law

       By their fifth and final issue, Plaintiffs complained that the trial court erred when it

allowed jury argument regarding Plaintiffs’ counsel’s character, professional ethics, and

integrity, which caused incurable error.

       During closing argument, attorneys may argue the facts and reasonable

inferences, may use hyperbole and other figures of speech, and may attack the

credibility of an opposing party’s witnesses, evidence, and positions.     Standard Fire Ins.

Co. v. Reese, 584 S.W.2d 835, 838 (Tex. 1979).        In the case of improper jury argument,

the complainant has the burden of proof to establish that an error:     (1) occurred; (2) that

was not invited or provoked; (3) that was preserved by an objection, motion to instruct, or

motion for mistrial; and (4) was not curable by an instruction, prompt withdrawal of the

statement, or an admonishment from the judge.           Id. at 839. The complainant must


                                              13
also prove that the argument by its nature, degree, and extent constituted reversibly

harmful error.    Id.   All the evidence must be examined to determine the argument’s

probable effect on a material finding.     Id.   From all these factors, the complainant must

show that the probability that the improper argument caused harm is greater than the

probability that the verdict was grounded on the proper proceedings and evidence.            Id.

       Incurable harm from improper argument is rare.          Id.; Living Ctrs. of Tex., Inc. v.

Penalver, 256 S.W.3d 678, 681 (Tex. 2008).            Argument is incurable only when it is so

far outside the record that the court determines that the jury more than likely decided the

case on prejudice rather than evidence.          See Living Ctrs., 256 S.W.3d at 681.        For

example, appeals to racial prejudice adversely affect the fairness and equality of justice

rendered by courts because they improperly induce consideration of a party's race to be

used as a factor in the jury's decision.    See id.; TXI Transp. Co. v. Hughes, 306 S.W.3d

230, 243–45 (Tex. 2010).         Further, accusing the opposing party of manipulating a

witness, without evidence of witness tampering, can be incurable, harmful argument.

See Howsley & Jacobs v. Kendall, 376 S.W.2d 562, 565–66 (Tex. 1964).                  However,

critical comments about opposing counsel are not necessarily improper or incurable.

See Casas v. Paradez, 267 S.W.3d 170, 184 (Tex. App.—San Antonio 2008, pet.

denied).

B.     Analysis

       Plaintiffs complain of several comments made by Defendants’ attorneys during

closing argument.       For example, Plaintiffs’ counsel considered the following statement


                                                 14
about their expert, Edward Ziegler, harmful: ―Ziegler is a jukebox expert . . . . But guess

what?    He didn’t get paid all that money.       What he did was he kept a stake in the

outcome of the litigation.‖ During trial, the jury heard evidence that a note on one of

Ziegler’s bills stated that he agreed to defer payment until the case settled or went to

trial, although Ziegler later denied this arrangement during his testimony.   The jury also

learned that, at the time of trial, Ziegler had only been paid $35,000 out of the $221,000

billed for the case.

        Plaintiffs further complained about Defendants’ repeated statements that

Plaintiffs’ counsel had sent their clients to Robert Moers, M.D. for medical examinations.

However, all of the Plaintiffs testified that they sought treatment from Dr. Moers because

their attorneys had referred them to him, and they also admitted that their attorneys paid

for their medical bills. We also note the following statement from Plaintiffs’ counsel’s

opening argument:

        The evidence will show that over the past three years my firm has helped
        our clients as much as we can. We’ve helped them manage their injuries.
        We’ve helped them manage with their pain. We’ve helped them with their
        suffering and all the things that go along with it.

        Now, the evidence will show that we asked doctors, or a doctor to evaluate
        these clients before we filed a lawsuit. Now the Defense, we suspect, are
        going to try and point the finger. We wanted to make sure before these
        clients were brought before you and before these clients filed a lawsuit that
        these clients had legitimate injuries and the evidence will show that they
        did.

        Upon review of the record, we conclude that defense counsel’s arguments were

supported by the facts and inferences from the trial record, and did not cause incurable


                                             15
harm.    See Standard Fire Ins. Co., 584 S.W.2d at 838.         Counsel is allowed great

latitude to discuss the facts and issues of a case, and that is what occurred here. See

Ramirez v. Acker, 138 S.W.2d 1054, 1055 (Tex. 1940). We overrule issue five.

                                     IV. CONCLUSION

        Having overruled all of Plaintiffs’ issues on appeal, we affirm the judgment of the

trial court.


                                                        GINA M. BENAVIDES
                                                        Justice

Delivered and filed the
30th day of September, 2011.




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