                          NUMBER 13-10-00165-CV

                         COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI – EDINBURG

NIEVES E. ROMAN,                                                     Appellant,


                                       v.
CUPRUM S.A. DE C.V.,                                                 Appellee.


                  On appeal from the 284th District Court
                      of Montgomery County, Texas.


                       MEMORANDUM OPINION
              Before Justices Garza, Benavides and Perkes
                Memorandum Opinion by Justice Garza
      Appellant, Nieves E. Roman, sued appellee Cuprum S.A. de C.V. (“Cuprum”),

alleging products liability and violations of the Texas Deceptive Trade Practices-

Consumer Protection Act (“DTPA”). See TEX. BUS. & COM. CODE ANN. §§ 17.41–.63

(West 2011). After a jury trial, a take-nothing judgment was rendered in Cuprum’s
favor. Roman now appeals the judgment, contending by three issues that the trial court

erred in admitting the testimony of three expert witnesses and related documentary

evidence. We affirm.

                                          I. BACKGROUND

       On November 27, 2002, Roman was cleaning a house owned by Bradley Baird.

In order to clean the house’s air vents, Roman used a step ladder that she found in

Baird’s garage. As Roman descended the ladder, she fell and sustained an ankle injury

which later required surgery. In 2004, Roman filed suit against Cuprum, which allegedly

designed, manufactured, marketed and sold the ladder.1 Roman alleged that the ladder

was unreasonably dangerous and defective and that Cuprum breached certain implied

warranties in violation of the DTPA.

       The case proceeded to trial in 2009. A primary issue at trial was the strength of

the aluminum used by Cuprum in manufacturing the ladder. Two expert witnesses

testified on Roman’s behalf that the aluminum used in the ladder was too soft and did

not meet specifications for yield and tensile strengths. Roman argued that, because of

the inferior materials, the ladder weakened and buckled when she attempted to

descend it. In response, Cuprum contended that the ladder was not defective and that

Roman’s injuries were the result of her own negligence in misusing the ladder. Cuprum

also alleged that any damage to the ladder was caused by the accident and was not a

defect.

       After trial, the jury found no manufacturing defect, no design defect, no marketing

       1
           Roman also sued Baird, Wal-Mart Stores, Inc. (where the ladder was allegedly purchased),
Louisville Ladder (another ladder manufacturer), and Grupo IMSA, S.A. de. C.V. (Cuprum’s parent
corporation), among other entities. All defendants other than Cuprum were eventually dismissed from the
case before trial and are not parties to this appeal.


                                                  2
defect, no deceptive trade practices, and no negligence on Cuprum’s part. The trial

court rendered judgment on the verdict on November 19, 2009, and later denied a

motion for new trial presenting the same arguments that Roman makes on appeal. This

appeal followed.2

                                          II. DISCUSSION

       Roman argues by her three issues that the trial court erred in admitting the

testimony and related documentary evidence of three expert defense witnesses: Erick

H. Knox, Ph.D., P.E.; Thomas J. Schmitt, P.E.; and Michael E. Stevenson, Ph.D., P.E.

Specifically, Roman contends that Cuprum’s disclosures during the discovery process

did not provide her with sufficient notice of the substance of experts’ mental impressions

and opinions. In response, Cuprum contends: (1) Roman waived any complaint about

the adequacy of the disclosures by failing to object prior to trial; (2) the disclosures were

adequate and complied with Texas Rule of Civil Procedure 194; (3) if the disclosures

were incomplete, Roman was required to object prior to trial, which she did not do; (4)

Roman has not shown that the alleged deficiencies in the disclosures caused her unfair

surprise or prejudice; and (5) the admission of the expert evidence, even if error, was

harmless because it did not lead to an improper judgment.

A.     Applicable Law and Standard of Review

       Texas Rule of Civil Procedure 194.2 provides that a party may request disclosure

of any or all of the following for each testifying expert:

       (1)     the expert’s name, address, and telephone number;

       (2)     the subject matter on which the expert will testify;

       2
          This case was transferred from the Ninth Court of Appeals pursuant to a docket equalization
order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West 2005).


                                                 3
       (3)    the general substance of the expert’s mental impressions and
              opinions and a brief summary of the basis for them, or if the expert
              is not retained by, employed by, or otherwise subject to the control
              of the responding party, documents reflecting such information;

       (4)    if the expert is retained by, employed by, or otherwise subject to the
              control of the responding party:

              (A)           all documents, tangible things, reports, models, or
                            data compilations that have been provided to,
                            reviewed by, or prepared by or for the expert in
                            anticipation of the expert’s testimony; and

              (B)           the expert’s current resume and bibliography[.]

TEX. R. CIV. P. 194.2(f). The responding party must make a complete response based

on all information reasonably available to that party or its attorney at the time the

response is made. TEX. R. CIV. P. 193.1.

       The purpose of Rule 194.2(f) is “to give the opposing party sufficient information

about the expert’s opinions to prepare to cross-examine the expert and to prepare

expert rebuttal evidence.” Miller v. Kennedy & Minshew, P.C., 142 S.W.3d 325, 348

(Tex. App.—Fort Worth 2003, pet. denied).         A failure to properly designate expert

witnesses results in the automatic exclusion of the expert testimony unless the offering

party demonstrates either good cause for the failure or a lack of unfair surprise or unfair

prejudice. See TEX. R. CIV. P. 193.6(a); Perez v. Embree Constr. Group, Inc., 228

S.W.3d 875, 884 (Tex. App.—Austin 2007, pet. denied). The rule states, however, that

when answering a request for disclosure, “the responding party need not marshal all

evidence that may be offered at trial.” TEX. R. CIV. P. 194.2(c).

       We review a trial court's decision to admit evidence for abuse of discretion. In re

J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). A trial court abuses its discretion when it acts



                                             4
without reference to any guiding rules and principles.            Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). In determining whether there

was an abuse of discretion, “we must ascertain whether the trial court’s finding served

the purpose of thwarting legal gamesmanship and trial by ambush.” $27,877.00 Current

Money of the U.S. v. State, 331 S.W.3d 110, 120 (Tex. App.—Fort Worth 2010, pet.

denied) (internal quotation omitted).

B.     Knox

       With respect to the anticipated testimony of Dr. Knox, Cuprum’s Rule 194

response stated in relevant part as follows:

       Dr. Knox is familiar with the design, manufacture, applicable standards,
       and operation of the ladder model at issue in this case. Dr. Knox has
       inspected and examined the ladder and accident scene at issue herein.
       Dr. Knox is expected to testify about all aspects of the alleged ladder
       accident at issue in this case including but not limited to the cause of the
       accident, the use of the ladder, the cause of the damage now existing on
       the ladder, the forces exerted on the ladder, the loading of the ladder, and
       the cause of Plaintiff[’]s injuries. Dr. Knox is also expected to testify about
       the design, testing, manufacture, assembly, and mechanics of the ladder
       at issue, the materials used in the ladder at issue, the applicable
       standards and specifications for the ladder at issue, and the testing
       performed by Plaintiff’s expert on the ladder at issue. Dr. Kno[x] will also
       respond to any testimony given by any expert or other witness for Plaintiff
       or any other party relating to alleged defects in the design, manufacture,
       marketing, labeling, and/or testing of the subject ladder or any other
       issues related to the cause of the accident and Plaintiff’s injuries.

       Based on Dr. Knox’s inspection of the subject ladder and the accident
       scene, testing performed on the subject ladder and exemplar ladders, his
       engineering background, experience in the manufacturing, design and
       testing of ladders, and his review of the materials in this case that have
       been provided to date, Dr. Knox has opined that there are not defects in
       the manufacture or design of the subject ladder, the subject ladder is
       reasonably safe in design, that the instructions and warnings are adequate
       and in compliance with the applicable standards, and that the most likely
       cause of Plaintiff[’]s accident was the improper set up, misuse, and/or
       mishandling of the ladder at issue.



                                               5
At trial, Dr. Knox testified that, as part of his work in this case, he analyzed the actual

ladder used by Roman (the “subject ladder”) as well as exemplar ladders to determine

the cause of the accident. He also stated that he reviewed statements of Roman and

others involved in the case, as well as documents provided by counsel. He further

testified regarding his independent testing of exemplar ladders; demonstrative exhibits

containing video recordings of that testing were shown to the jury.

       At trial,. Roman objected to Dr. Knox’s testimony on the basis that it exceeded

the scope of Cuprum’s Rule 194 disclosure.          On appeal, she claims that “Cuprum

obviously did not disclose to Roman that Knox had performed independent testing

outside of Roman’s observations, nor did it disclose the results of his testing or his

theories regarding” those results.

       We find Roman’s complaint meritless. Cuprum’s Rule 194 disclosure stated that

Dr. Knox was expected to testify about his “testing performed on the subject ladder and

exemplar ladders” and did not specify where, when, or in whose presence such testing

took place. While the disclosure did not specifically describe the results of this testing, it

did state that Dr. Knox concluded from all of his work on the case, including the

independent testing of exemplar ladders, that the subject ladder was “reasonably safe in

design.” Additionally, Cuprum’s Rule 194 disclosure stated that Dr. Knox was expected

to respond to any testimony given by Roman’s experts or other witnesses about defects

in the ladder or the cause of Roman’s accident. As Roman recognizes, part of Dr.

Knox’s testimony was elicited in an attempt to refute the theory previously presented by

one of Roman’s expert witnesses, Frank Johnson, that the subject ladder buckled due

to weakness and was unreasonably dangerous.



                                              6
      We conclude that the disclosures provided by Cuprum were adequate to give

Roman “sufficient information” about Dr. Knox’s opinions to allow her to prepare to

cross-examine him and to prepare rebuttal testimony. See Miller, 142 S.W.3d at 348.

We note also that, if Roman believed that Cuprum’s disclosures were insufficiently

specific, she could have moved to compel additional disclosure, see Remington Arms

Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993) (“the failure to obtain a pretrial ruling

on discovery disputes that exist before commencement of trial constitutes a waiver of

any claim for sanctions based on that conduct”), or she could have taken the

opportunity to depose Dr. Knox. Roman chose to do neither of those things.

      We overrule Roman’s first issue.

C.    Schmitt

      Cuprum’s Rule 194 response stated the following with respect to the anticipated

testimony of Schmitt and another potential witness, Spencer Gross:

      Mr. Schmitt and Mr. Gross are engineers employed by Louisville Ladder.
      Mr. Schmitt and Mr. Gross are familiar with the design, manufacture,
      mechanics, and operation of the ladder model at issue in this case. Mr.
      Schmitt and Mr. Gross may provide testimony concerning Louisville
      Ladder’s testing of and compliance with applicable standards of the
      climbing products it designs, manufactures, tests, labels and markets,
      including the ladder at issue in this lawsuit. Mr. Schmitt and Mr. Gross
      may also provide testimony concerning the design, testing, manufacture,
      and assembly of the ladder at issue and the materials used in the ladder
      at issue. Mr. Schmitt and Mr. Gross may also provide testimony
      concerning the alleged ladder accident at issue in this case including but
      not limited to the cause of the accident, the cause of the damage now
      existing on the ladder, and the cause of Plaintiff’s injuries. They are
      expected to respond to any testimony given by any expert or other witness
      for Plaintiff or any other party relating to alleged defects in the design,
      manufacture, marketing, labeling, and/or testing of the subject ladder or
      any other issues related to the cause of the accident and Plaintiff’s
      injuries.




                                            7
Schmitt’s curriculum vitae, which is one of the discoverable items under Rule 194, see

TEX. R. CIV. P. 194.2(f)(4)(B), was not produced by Cuprum until October 4, 2009, one

day before trial commenced and eight days before Schmitt was called to testify.

       Roman, who objected to Schmitt’s testimony at trial, complains now that the trial

court erred by admitting Schmitt’s curriculum vitae and by permitting Schmitt to testify

as to work he had done as a member of committees affiliated with Underwriters

Laboratories (“UL”) and the American National Standards Institute (“ANSI”). At trial,

Schmitt testified in part that the type of ladder used by Roman had been tested by UL

and determined to be in accordance with ANSI standards.            According to Roman,

“[w]ithout Cuprum disclosing the CV prior to trial, there was no notice given to Roman of

Cuprum’s expert’s membership in the UL and ANSI committees and that Cuprum was

going to bolster that expert’s testimony with those memberships, as they, in fact, did.”

       We note first that, contrary to Roman’s representation, Cuprum disclosed

Schmitt’s curriculum vitae, which contained information as to his UL and ANSI

memberships, one day prior to the commencement of trial. In any event, we find no

reversible error in the trial court’s decision to admit this evidence. Schmitt’s testimony

regarding the subject ladder’s compliance with ANSI standards was arguably

anticipated by the statement in Cuprum’s Rule 194 disclosure that Schmitt “may provide

testimony concerning Louisville Ladder’s testing of and compliance with applicable

standards of the climbing products it designs, manufactures, tests, labels and markets,

including the ladder at issue in this lawsuit.” Moreover, Roman has not explained how

the admission of this evidence probably led to the rendition of an improper judgment or




                                            8
probably prevented her from properly presenting her case on appeal. See TEX. R. CIV.

P. 44.1(a). Her second issue is overruled.

D.    Stevenson

      Finally, as to Dr. Stevenson’s anticipated testimony, Cuprum’s Rule 194

response stated:

      Dr. Stevenson is familiar with the design, manufacture, applicable
      standards, and operation of the ladder model at issue in this case. Dr.
      Stevenson is expected to testify about all aspects of the alleged ladder
      accident at issue in this case including but not limited to the cause of the
      accident, the use of the ladder, the cause of the damage now existing on
      the ladder, the forces exerted on the ladder, the loading of the ladder, and
      the cause of Plaintiff’s injuries. Dr. Stevenson is also expected to testify
      about the design, testing, manufacture, assembly, and mechanics of the
      ladder at issue, the materials used in the ladder at issue, the applicable
      standards and specifications for the ladder at issue, and the testing
      performed by Plaintiff’s expert on the ladder at issue. Dr. Stevenson will
      also respond to any testimony given by any expert or other witness for
      Plaintiff or any other party relating to alleged defects in the design,
      manufacture, marketing, labeling, and/or testing of the subject ladder or
      any other issues related to the cause of the accident and Plaintiff’s
      injuries.

      Based on Dr. Stevenson’s review of the testing performed by Plaintiff,
      review of the materials in this case that have been provided to date, his
      engineering background, experience in the manufacturing, design, and
      testing of ladders, Dr. Stevenson is expected to opine that there were not
      defects in the manufacture or design of the subject ladder, the subject
      ladder is reasonably safe in design, and that the most likely cause of the
      Plaintiff’s accident was the improper set up, misuse, and/or mishandling of
      the ladder at issue.

      At trial, Dr. Stevenson testified that he reviewed reports of testing done by

Anderson & Associates (“Anderson”) and Metallurgical Technologies, Inc. (“MTI”) on the

subject ladder. Dr. Stevenson stated that Anderson tested the ladder by, among other

things: cutting a sample out of the ladder and pulling the sample apart to measure the

tensile strength of the alloy used to produce the ladder; performing scanning electron



                                             9
microscopy of the fracture surfaces on the ladder; and performing other hardness

testing and metallographic testing.3 He stated that, though testing performed by MTI

revealed a “non-conformity” in terms of yield strength, the non-conformity did not mean

the ladder was defective because the ultimate tensile strength of the ladder met

specifications and a safety factor of four times the rated load was built in to the ladder

by the manufacturer.4

        Defense counsel asked Dr. Stevenson if he reviewed photographs taken by Rex

McLellan, Ph.D., a metallurgy professor who had previously testified as one of Roman’s

expert witnesses. Dr. Stevenson replied that he had reviewed those photographs and

then testified as follows:

        A. [Dr. Stevenson]               I observed [in the photographs] a mixed mode
                                         fracture . . . On those grain facets there’s
                                         evidence of what is called dimple rupture or
                                         ductile fracture. It’s the common and expected
                                         fracture mode for this particular alloy. So this
                                         is in my opinion consistent with ductile fracture.

        Q. [Cuprum’s counsel]            And doesn’t this tell you that the alloy was
                                         improperly treated?

        A.                               No. It tells you the fracture mode and then
                                         what type of fracture it is, if it’s overstress or
                                         overload type of fracture.

        Q.                               What type of fracture was this you observed?

        A.                               I mean I think there’s two different ways. One
                                         is overstress or overload essentially occurring

        3
        Metallography is defined as the study of the structure of metals, especially with a microscope.
MERRIAM-W EBSTER’S COLLEGIATE DICTIONARY 730 (10th ed.).
        4
          Dr. Stevenson testified that “there [are] two strength parameters, yield strength, which is the
point at which the metal begins to deform, and ultimate tensile strength, which is the ultimate strength of
the material.” He further stated that, although testing revealed that subject ladder’s yield strength
deviated by three percent from the applicable specification, the 400-percent safety factor (which
manufacturers generally build in to products “to anticipate things that are outside the scope of a design”)
would “absolutely” be enough to protect the end user.

                                                   10
                                       at time [sic] versus another type of fracture
                                       mechanism that’s time dependent.            But
                                       specifically the features are intergranular with
                                       ductile dimples, or evidence of ductile rupture
                                       along the grain boundaries.

       Q.                              Is that something that you see with aluminum?

       A.                              Well, it’s something that you certainly see with
                                       precipitation-hardened aluminum like this. It’s
                                       well known in literature and something that I
                                       have observed before in testing these types of
                                       materials. So it’s fairly common.

       Q.                              Did you see anything in there that would show
                                       that the ladder had been fatigued over a period
                                       of time?

       A.                              No. None of the photographs that I reviewed
                                       indicated any evidence of fatigue.

Roman objected to the testimony as exceeding the scope of Cuprum’s Rule 194

disclosures. Roman argues on appeal that “Cuprum failed to disclose to Roman . . .

that [Dr. Stevenson] would give testimony on the subject of grain boundary weakness or

grain boundary separation.”5

       Again, we find no error in the trial court’s admission of this evidence. Rule 194

requires only the disclosure of “the general substance of the expert’s mental

impressions and opinions and a brief summary of the basis for them . . . .” TEX. R. CIV.

P. 194.     Cuprum’s disclosure stated that Dr. Stevenson would testify as to the

“mechanics of the ladder at issue, the materials used in the ladder at issue,” as well as

“the cause of the damage now existing on the ladder.” Cuprum also disclosed that Dr.

Stevenson would testify that, as a result of his testing and review of case materials, he


       5
          A grain is a portion of a solid metal in which the atoms are arranged in an orderly pattern.
Allegheny Technologies, Inc., AL-6XN Glossary, http://www.al6xn.com/about_glossary.php (last visited
Feb. 14, 2012). The irregular junction of two adjacent grains is known as a grain boundary. Id.

                                                 11
believed the ladder was not defective or unreasonably dangerous. This was sufficient

to convey the “general substance” of Dr. Stevenson’s testimony. See id. Moreover, Dr.

Stevenson’s testimony specifically regarding grain boundary weakness and grain

boundary separations was elicited in part in order to rebut the testimony of Dr. McLellan

that he observed grain boundary weakness in the subject ladder; and Cuprum’s

disclosure stated that Dr. Stevenson was expected to respond to testimony provided by

Roman’s experts.

      We note again that, as with Dr. Knox, if Roman believed that Cuprum’s Rule 194

disclosure was insufficiently specific or otherwise inadequate, she could have either

moved to compel more specific disclosure or deposed the witness, yet she chose to do

neither. In light of this fact, we cannot say that Cuprum’s actions here amounted to

“legal gamesmanship” or “trial by ambush.” See $27,877.00 Current Money of the U.S.,

331 S.W.3d at 120.

      We conclude that the trial court did not abuse its discretion in admitting Dr.

Stevenson’s testimony. Accordingly, Roman’s third issue is overruled.

                                    III. CONCLUSION

      We affirm the judgment of the trial court.



                                                      ________________________
                                                      DORI CONTRERAS GARZA
                                                      Justice


Delivered and filed the
29th day of March, 2012.




                                           12
