                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                  No. 07-12-00546-CV


                      TYSON FRESH MEATS, INC., APPELLANT

                                           V.

                             MAHDEY ABDI, APPELLEE

                          On Appeal from the 108th District Court
                                    Potter County, Texas
             Trial Court No. 98,050-E, Honorable Douglas Woodburn, Presiding

                                      May 28, 2014

                           MEMORANDUM OPINION
                  Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      Tyson Fresh Meats, Inc. (Tyson) appeals from a judgment rendered in favor of

Mahdey Abdi (Abdi). The latter was injured while working at Tyson’s meat-packing

plant. His arm was crushed after becoming stuck in a conveyor belt he attempted to

clean. The belt was off when Abdi began his task but somehow engaged before the job

was completed. Suit followed, wherein Abdi accused Tyson of negligence in failing to 1)

have a delayed start signal before the belts were energized and 2) properly train him in
"lock-out procedures."    Trial was to a jury, which rendered a verdict favoring Abdi.

Judgment was entered upon that verdict, and this appeal ensued.

       Tyson poses six issues for review.        Three concern the admission of expert

testimony proffered by a Dr. Johnston, while the others pertain to the admission of

accident reports, jury argument, and the factual sufficiency of the evidence underlying

an award of damages. We affirm.

       Admission of Expert's Testimony

       We first address the matter of Johnston's expert testimony. Tyson asserts that it

was inadmissible on three grounds. We review the complaints under the standard of

abused discretion. Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex. 2009)

(stating that admission of expert testimony is reviewed under the standard of abused

discretion). That standard prohibits us from interfering with the trial court's decision

unless it deviated from controlling guidelines, rules, or principles or was otherwise

unreasonable or arbitrary. Brinker v. Evans, 370 S.W.3d 416, 422 (Tex. App.—Amarillo

2012, pet. denied). Finally, the burden lies with the appellant to establish that the trial

court abused its discretion. Id.

       Statutory Bar

       Through its first issue, Tyson argues that "the trial court’s admission of . . .

Johnston’s testimony contravenes an express statutory prohibition against such

testimony. Johnston testified as to professional engineering issues about which he is

statutorily prohibited from testifying."   That is, "the Texas Occupational Code . . .

expressly states that an individual without a valid and active engineering license is

prohibited from 'providing an expert engineering opinion or testimony.' TEX. OCC.



                                             2
CODE §§ 1001.301; 1001.355; 1001.003(c)(1)," "Johnston’s engineering license . . .

[was] inactive" when he testified, and he "was, therefore, statutorily prohibited from

offering an expert engineering opinion." We overrule the issue.1

        Statute requires active licensure before one may engage in the "practice of

engineering." See TEX. OCC. CODE ANN. § 1001.301(a) (West 2012); § 1001.355(a)

(stating that a license holder on inactive status may not practice engineering).

Furthermore, the "practice of engineering" is defined as "the performance of or an offer

or attempt to perform any public or private service or creative work, the adequate

performance of which requires engineering education, training, and experience in

applying special knowledge or judgment of the mathematical, physical, or engineering

sciences to that service or creative work." Id. § 1001.003(b). It also encompasses

"consultation, investigation, evaluation, analysis, planning, engineering for program

management, providing an expert engineering opinion or testimony, engineering for

testing or evaluating materials for construction or other engineering use, and mapping."

Id. § 1001.003(c)(1) (Emphasis added). However, the statute "does not . . . prohibit or

otherwise restrict a person from giving testimony or preparing an exhibit or document for

the sole purpose of being placed in evidence before an administrative or judicial

tribunal, subject to the board's disciplinary powers under Subchapter J regarding

negligence, incompetency, or misconduct in the practice of engineering."                              Id.

§ 1001.004(e)(2).




        1
          Abdi proffered Johnston as an expert in "human factors" and "industrial safety." Moreover,
Tyson's counsel stated below that "[a]s a human factors expert, while I may quarrel with him [Johnston]
about whether he can do it or not, or he's experienced enough, I don't think under a Robinson/Daubert
challenge on that single issue of human factors . . . that -- that he is disqualified." (Emphasis added).

                                                   3
        Though "judicial tribunal" is not defined in the statute, the plain meaning of

"judicial" connotes "of or relating to a judgment, the function of judging, the

administration of justice, or the judiciary," MERRIAM-W EBSTER’S COLLEGIATE DICTIONARY

677 (11th ed. 2003), while the plain meaning of "tribunal" includes "a court or forum of

justice" or "something that decides or determines."                    Id. at 1335.       The parameters

established by those definitions easily encompass a court of law such as the district

court at bar. Thus, a trained engineer holding an inactive license, like Johnston, would

not be prohibited from offering an expert opinion during a trial.                 Tidwell v. Terex Corp.,

No. 01-10-01119-CV, 2012 Tex. App. LEXIS 7724, at *32-34 (Tex. App.—Houston [1st

Dist.] August 30, 2012, no pet.) (mem. op.) (holding that the trial court did not abuse its

discretion in permitting an unlicensed engineer to render an expert opinion because it

"could have found that the Occupation Code did not prohibit Closson's testimony

because it fell within the testimonial exception”); State v. Northborough Ctr., Inc., 987

S.W.2d 187, 194 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (holding the same

after applying the similarly worded predecessor to § 1001.004(e)(2)).2                                    So,

§ 1001.003(c)(1) did not ipso facto bar Johnston from testifying as an expert.

        We further note that the Texas Rule of Evidence governing experts and their

testimony, that is, Rule 702, says nothing about one needing a license to testify as an
        2
            We note Tyson's effort to distinguish both Tidwell and Northborough because neither
purportedly focused on the omission of the word "expert" in § 1001.004(e)(2) or its predecessor. It may
be that § 1001.003(c)(1) uses the word in describing what constitutes the practice of engineering. Yet, to
suggest that because the legislature omitted the word "expert" when permitting unlicensed engineers to
testify in a "judicial tribunal" somehow means it never intended such an individual to render an expert
opinion in a "judicial tribunal" is an unacceptable application of the rules of statutory construction. Section
1001.004 expressly addresses testimony in a court of law, while § 1001.003 addresses the general
practice of engineering and the provision of expert testimony in general. So, what we have here is the
legislature selecting a specific instance or setting wherein an unlicensed engineer may testify and,
thereby, removing him from the generality of § 1001.003(c)(1). And, as we know, statutes addressing
specific matters are to be interpreted as governing statutes addressing general matters. See In re
                                                                                           th
Platinum Energy Solutions, 420 S.W.3d 342, 346, 348 (Tex. App.—Houston [14 Dist.] 2014) (orig.
proceeding).

                                                      4
expert. The rule mentions qualifications based on knowledge, skill, experience, training

or education, not licensure. TEX. R. EVID. 702. So, an expert is not obligated to have a

license to testify under the Supreme Court's own rules of evidence if the person is

otherwise qualified under Rule 702.                  Tidwell v. Terez Corp., supra; State v.

Northborough Ctr., Inc., supra.

        Unqualified

        Through its second issue, Tyson argues that the trial court erred in allowing

Johnston to testify about the lack of a delayed warning system because he "failed to

meet the legal standard under Texas Rule of Evidence 702 to qualify as an expert in the

design and implementation of such systems." We overrule the issue.

        Again, the applicable standard of review is one of abused discretion. Under it, we

cannot simply substitute our own judgment for that of the trial court. Our obligation is to

defer to the trial court’s decision if it comported with controlling guidelines. With this in

mind, we also note the teaching of Mack Trucks v. Tamez, 206 S.W.3d 572 (Tex. 2006).

There we are told that expert witnesses may testify if the opinion is relevant and based

on a reliable foundation. Id. at 578. And, in applying Mack Trucks and the standard of

review, we begin by focusing on the reason for which Johnston was proffered and the

nature of his testimony.

        Abdi called Johnston as an expert on "human factors" and industrial safety.3 As

such, he investigated industrial accidents and their causes.                      And while Johnston


        3
            According to Johnston:

. . . human factors is a specialty area that basically recognizes that . . . the human is not perfect. We --
human beings have tremendous capabilities, but they also have certain limitations, and the human factors
field recognizes this. And when they're designing tools or equipment or workplaces or office furniture,
what have you, they try to design those tools and equipment and facilities to take into consideration the
capabilities of the human, but also the limitations, and try to match that with the characteristics of the

                                                     5
acknowledged that he had not designed a delayed warning system or seen one in a

meat-packing plant, he also attested that he "cannot give testimony, as an engineer,

and [he] cannot do engineering . . . [he is] not giving testimony as an engineer.” Rather

he was testifying "as a certified safety professional." He further explained, in response

to a query about whether he was "pretty near an expert on just about any topic anybody

is willing to pay you for," the witness replied:

        No, that's not true. I'm an expert in the narrow relationship between the
        human and that product. I'm not an expert in any of those products. I
        couldn't design any of those products. So those products were designed
        by mechanical and electrical engineers, which I'm not. The human factors
        field and the safety field looks at that relationship between the user of the
        equipment or the user of the product and looks to see if it is safe. And if it's
        unsafe, they recommend ways to make it safer. They don't do the work,
        but an electrical engineer or a mechanical engineer will come in and make
        those modifications. So the human factors, we look at a really narrow
        aspect. That's the human machine or the human product interface and
        that's the area of my expertise. And, yes, it involves a lot of different
        products over some 40 years.




equipment to make that tool or equipment as efficient and effective as possible. For instance, in the
automobile, the human factors would be designing the seats so not only for comfort, but for all -- all
different age groups to be able to reach the controls and lay out the controls in a way. So that's what
human factors -- it's kind of the optimum -- it's trying to design for optimum human use, to make it easy
and safe for humans to use.

                                          *        *       *

Industrial safety -- and it's sometimes referred to as occupational safety -- that's everything that's involved
in providing a safe workplace. It involves training the individual. It involves the equipment that they're
going to use, to make sure that the equipment is maintained properly. It involves safe work procedures,
so that the people know how to do their work. It involves getting safety rules and safety procedures. It
involves safety inspections because you can't just make a bunch of rules and say here's the rules,
because we know that some people may break the rules or what have you. So you -- it involves the
adequate supervision to make sure that the rules are being followed. All -- everything that goes into trying
to prevent injuries, prevent accidents, and make the job as safe as practical.

                                          *       *        *

Another part of industrial safety is the actual products that they use, to make sure that those
products have taken human factors into consideration, and that those products are relatively safe
for the way that they are meant to be used.

                                                       6
       The substance of his testimony also focused upon the absence of safety items

from the bone room wherein Abdi received his injuries. He talked about such things as

the lack of warning signs and audible or visual warning devices.         Moreover, his

testimony about the need for such devices or warning measures was based upon

industry safety standards developed by the American Society of Mechanical Engineers

or ASME and made applicable to conveyor belts. He further said that ASME standards

were relied upon by "certified safety professionals" like him.

       The ASME standard deemed applicable was that numbered B20.1. It provided,

among other things, that: 1) a conveyor that would cause injury when started, shall not

be started until personnel in the area are alerted by a signal or designated person that

the conveyor is about to start; 2) when a conveyor that would cause injury when started

is automatically controlled or must be controlled from a remote location, an audible

device or devices shall be provided that can be clearly heard at all hazardous points

along the conveyor where personnel may be present; 3) the audible warning shall be

actuated by the controller device starting the conveyor and continue for a required

period of time before the conveyor starts; 4) a flashing light or similar visual warning

may be used in conjunction with or in place of the audible device if a visual warning is

more effective; and 5) where system function would be seriously hindered or adversely

affected by the required time delay, or where the intent of the warning may be

misinterpreted, (e.g, in a work area with many different conveyors and allied devices) a

clear, concise, or legible warning sign shall be provided and the warning sign shall

indicate that conveyors and allied components may be started at any time, that danger

exists, and that personnel must keep clear.



                                              7
       More importantly, in assessing whether Johnston was indeed qualified as an

expert, the trial court heard an excerpt from the deposition of Tyson's own expert

concerning ASME standards. He said: "Yes, I believe the ASME standards do apply,"

though he did not "believe that they indicate that an audible warning would apply in this

case." (Emphasis added). We are not directed to anything of record indicating that the

same witness believed the visual warning standards of ASME B20.1 were inapplicable.

Not only was this concession by Tyson's expert heard by the trial court when deciding

whether to qualify Johnston as an expert but it also contradicts Tyson's present

contention that "Johnston . . . expressed engineering opinions that were inconsistent

with industry standards." Again, Tyson’s expert told the court the standards applied to

the industry involved.

       And, to the extent that Johnston purportedly offered an opinion about the design

of a warning system when describing the location at which the safety measures should

be installed, it appears the observation was also based on the very same ASME

standard. As mentioned above, one of its subparts stated that "when a conveyor that

would cause injury when started is automatically controlled or must be controlled from a

remote location, an audible device or devices shall be provided that can be clearly

heard at all hazardous points along the conveyor where personnel may be present."

(Emphasis added).        Johnston opined that the locales at which the warning devices

should have been installed on the Tyson conveyor belt system were the "pinch points"

within the system. He compared them to rollers installed on old washing machines

through which the user rolled wet clothes to remove excess water. "From a human

factors standpoint, you would want to locate . . . [the warnings] near the pinch point,



                                             8
near the roller . . . that's the danger point . . . ," according to Johnston. (Emphasis

added). So, it can be said that the witness was not actually designing a safety system

but applying ASME safety standards to a conveyor designed by others.

       In short, it may well be that Johnston was not qualified to testify about the design

and implementation of safety systems. Yet, that was not the focus of his testimony.

Abdi proffered him as a human factors and industrial safety expert. His expertise dealt

with analyzing the safety measures implemented in various industries via the application

of, among other things, ASME standards that Tyson's expert reluctantly deemed

relevant.     While his opinions could affect the design of industrial mechanisms, like

conveyor belts, he left their design to others.        We further add to that Tyson’s

acknowledgement of Johnston as being a qualified human factors expert. These indicia

provided ample basis upon which the trial court could have reasonably concluded that

Johnston was not attempting to design a safety system but rather was opining about

ASME safety measures that engineers should consider in designing equipment. So, we

do not consider the decision to admit the witness' testimony as an instance of abused

discretion.

       Expert Testifying as a Fact Witness

       Tyson next contends that "no scientific, technical, or other specialized knowledge

was necessary to determine whether Tyson failed to properly train the Plaintiff.”

Accordingly, Johnston’s testimony on this issue allegedly was outside the scope of

expert testimony allowed by Rule 702, and the trial court’s admission of such testimony

was an abuse of discretion. We overrule the issue.




                                             9
          Again, the standard of review is one of abused discretion.          Next, an expert

witness may testify on matters where specialized knowledge will assist the trier of fact to

understand evidence or to determine a fact in issue. TEX. R. EVID. 702. Furthermore,

expert testimony assists the trier of fact when the expert’s knowledge is beyond that of

the average juror. K-Mart Corp. v. Honneycutt, 24 S.W.3d 357, 360 (Tex. 2000). What

Tyson asserts here is that the jury did not need expert testimony from Johnston on

whether Abdi was properly trained since a fact witness could have testified about the

matter. Yet, Johnston was not simply asked whether Abdi received proper training on

the lock-out/tag-out system in general. He also endeavored to explain why the training

was deficient, and that was influenced by his expertise in human factors and industrial

safety.

          The record illustrates that Tyson trained its employees working at the conveyor

belts on the use of its lock-out/tag-out system.        So too does it illustrate that Abdi

attended such a classroom training session.           When asked, though, whether "just

showing an employee in a classroom how to move that knife disconnect from on to off

and put a lock on it would . . . qualify him to go out on Tyson's floor and lock and tag out

a conveyor belt . . . ," Johnston replied: "In my opinion, it would not." In answer to being

asked "why not," the witness said such things as 1) "[b]ecause it's not specific to

whatever he's locking out, the actual -- that's just the first step," 2) "[y]ou still need to go

to the specific equipment that's out there, to locate where that box is and locate where

all the other features of that piece of equipment is," and 3) classroom training was

insufficient because "[t]hey should demonstrate on the actual equipment that they're

locking out, that they know how to complete the entire lockout procedure." The witness



                                              10
also indicated that knowing how to look at a notebook and find an equipment specific

lockout/tagout procedure did not actually qualify an employee to tagout that item. So,

when asked if Abdi was sufficiently trained ". . . when he was injured on BT-4 [bone

table 4] based on what you know about the training that he had received, and the

location where he was injured . . . ," Johnston said, "Not in my opinion."

       It has to be remembered that the foregoing testimony was proffered by a "human

factors" expert and "certified safety professional" retained to investigate the cause of

accidents.4 And, it is the task of a "human factors" expert, according to Johnston, to

consider the "capabilities" and "limitations" of the human being "and try to match [them]

with the characteristics of the equipment to make that tool or equipment as efficient and

effective as possible."      The "tool" or "equipment" in question at the time was the

lockout/tag-out mechanism utilized by Tyson, and Johnston was explaining why, given

his experience with and consideration of human "capabilities" and "limitations," the

training provided was not enough. So, more was being asked than simply whether

Tyson trained Abdi.        The trial court could have reasonably interpreted Johnston’s

testimony as effort to explain for the jury that learning something in a classroom does

not necessarily mean the student knows the subject. Purportedly more was needed

here, and it involved the provision of actual experience with or in the subject matter

being taught. While some people learn through their own experience that experience is

the best teacher, we cannot say that reiterating the truism to a jury fell outside the

expertise of someone like Johnston who was trained in people, their capabilities, their

limitations, and their understanding.

       4
          We reiterate that Tyson acknowledged Johnston to be an expert in "human factors." Implicit in
that acknowledgement is the concession that such an expertise exists. Indeed, one cannot be an expert
in a non-existent field, and Tyson does not contend here that no such field exists.

                                                  11
      Simply put, the trial court had to exercise its discretion to decide if Johnston's

specialized knowledge in the realm of "human factors" would assist the trier of fact in

understanding why the training was deficient. The manner in which it exercised its

discretion cannot be faulted as unreasonable or as a deviation from controlling rules or

guidelines under the circumstances it had before it.

      Admission of Accident Reports

      Tyson next complains of the admission into evidence of two accident reports

prepared by employees of Tyson. One was prepared by a nurse employed by Tyson

and was based on information provided by Abdi. The other was prepared by Bobby

Archie and was based on information learned from another employee named Jones. As

such, they allegedly constituted inadmissible hearsay. We overrule the issue.

      Abdi and the nurse testified at trial, as did Jones and Archie via their depositions.

Furthermore, portions of their testimony as well as other evidence proffered at trial

covered the substance of what was said in both reports.         So, the content of those

reports was redundant of other evidence admitted into the record without objection.

      To the extent that Tyson found one aspect of the nurse's report troubling (i.e., the

suggestion that the accident was not caused by deviating from a safety rule or

regulation), that matter was broached again by counsel for Abdi while reading from

Jones' deposition. More importantly, Tyson did not object when Abdi revisited it. We

further note that the Jones deposition excerpt read by Abdi’s counsel expressly

contradicted what the nurse said about the accident having no connection to some

deviation from safety protocol. Given these circumstances, we cannot say that the

admission of the two reports, if error, was harmful. Benavides v. Cushman, Inc., 189



                                           12
S.W.3d 875, 885 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding that

inadmissible evidence is rendered harmless when similar evidence is admitted

elsewhere without objection).5

            Improper Closing Argument

        Tyson’s next issue concerns allegedly improper, incurable jury argument. The

argument consisted of the following:

        This is a company - - Tyson is a huge company. They are responsible for
        processing food that you eat, that we all eat, that our society eats. They
        won’t even follow the OSHA regulations. What do you think they’re doing
        out there on the regulations regarding the safety of food? What do you
        think they’re doing? We’ve proven that they don’t even follow the
        regulations for OSHA, for the safety of their employees. How do you think
        they feel about your safety? How do you think they feel about my safety?

No objection was made to it during trial. However, Tyson complained of it via a motion

for new trial. Though that preserved the issue for review, the delay foisted upon the

same party the obligation of establishing that the argument was incurable. Cottman

Transmission Sys., L.L.C. v. FVLR Enters., L.L.C., 295 S.W.3d 372, 379 (Tex. App.—

Dallas 2009, pet. denied).

        Incurable jury argument is rare.           Living Ctrs. of Texas, Inc. v. Penalver, 256

S.W.3d 678, 681 (Tex. 2008). But, it arises when, by its nature, degree, and extent, the

argument constituted such error that an instruction to disregard could not remove its

effects. Id. at 680-81. That is, the argument must strike at the appearance of and the

actual impartiality, equality, and fairness of the justice rendered by courts. Id. at 681.

Previously recognized types of incurable argument have included: (1) appeals to racial

        5
           Tyson also believes it suffered prejudice because the jury asked to see the nurse's report. Yet,
we are cited to and found nothing of record suggesting that the information perused in that report differed
from the evidence already admitted elsewhere without objection. So, the inference of harm arising from
the jury's request is founded simply on speculation.

                                                    13
prejudice; (2) the use of inflammatory epithets such as "liar," "fraud," "faker," "cheat,"

and "imposter"; and (3) unsupported charges of perjury and witness tampering. Id. at

681; Wilhoite v. Sims, 401 S.W.3d 752, 763 (Tex. App.—Dallas 2013, no pet.). To

reiterate, the focus lies on whether the argument, when considered in its proper setting,

was reasonably calculated to cause such prejudice to the opposing litigant that a

withdrawal by counsel or an instruction by the court, or both, could not eliminate the

probability that it resulted in an improper verdict. Living Ctrs. Of Texas, Inc. v. Penalver,

256 S.W.3d at 681, quoting Tex. Employers’ Ins. Ass’n v. Haywood, 153 Tex. 242, 266

S.W.2d 856 (1954).      Finally, we generally presume that jurors follow the instructions

provided them by the court. Columbia Rio Grande Healthcare, L.P. v. Hawley, 284

S.W.3d 851, 862 (Tex. 2009).

       Though improper, the argument before us was a relatively brief, one-time

comment. It encompassed neither inflammatory epithets, appeals to racial or other

reprehensible prejudices, nor false accusations implicating the integrity of the judicial

process. Furthermore, Tyson cites us to no authority holding jury argument akin to that

at bar was incurable. Consequently, we are unable to find it of the ilk that could not

have been remediated by a timely and proper instruction from the trial court.

       Factual Sufficiency of Evidence of Past Lost Earnings

       Finally, Tyson argues that the evidence is factually insufficient to support the

jury’s award of past lost earnings. It believed that Abdi should have recovered no more

than $19,050. Its argument is founded upon the supposition that the applicable period

of loss was that between the date of injury and the date on which he was cleared to

return to work. Yet, lost wages refers to the actual loss of income due to the inability to



                                             14
perform a specific job from the time of injury to the time of trial. Scott's Marina at Lake

Grapevine Ltd. v. Brown, 365 S.W.3d 146, 158-59 (Tex. App.—Amarillo 2012, pet.

denied); Koko Motel, Inc. v. Mayo, 91 S.W.3d 41, 51 (Tex. App.—Amarillo 2002, pet.

denied). The latter period here was approximately three years.6 Additionally, Abdi was

making about $450 per week at the time of the accident. Multiplying $450 (the sum

received weekly) by 4 (the average number of weeks in a month) by 36 (the number of

months in three years) derives a product of $64,800. So, the overwhelming weight of

evidence shows that Abdi was entitled to much more than the $19,050 suggested by

Tyson. We overrule the issue.

        Having overruled each issue, we affirm the judgment.



                                                                Brian Quinn
                                                                Chief Justice




        6
         The accident happened on September 9, 2009, and Abdi was medically cleared to return to
work on July 27, 2010. However, he never returned because he still suffered pain and weakness in his
arm and hand sufficient to prevent him from doing his job. Instead, he periodically sold cars and earned
at most $500 per week. Some weeks he earned nothing at all. Furthermore, trial of the cause was held
on August 28-31, 2012, about thirty-six months after the incident.

                                                  15
