AFFIRMED and Opinion Filed August 20, 2019




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        No. 05-18-00541-CV

    AAA COOPER TRANSPORTATION AND XTRA LEASE, LLC, Appellants
                               V.
OLYNTHUS M. DAVIS AND PROPERTY & CASUALTY INSURANCE COMPANY OF
                        HARTFORD, Appellees

                       On Appeal from the 14th Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. DC-16-10773

                              MEMORANDUM OPINION
                         Before Justices Schenck, Osborne, and Reichek
                                  Opinion by Justice Reichek
       AAA Cooper Transportation and XTRA Lease, LLC appeal the trial court’s judgment

awarding Olynthus M. Davis damages for injuries he suffered while performing his job as a

warehouseman. Bringing five issues, appellants generally contend (1) the trial court erred in

submitting this case to the jury using a general negligence question, (2) the trial court abused its

discretion in not excluding the testimony of Davis’s experts, and (3) the evidence is insufficient to

support the jury’s answers to the charge questions regarding liability and future medical expenses.

We affirm the trial court’s judgment.
                                       Factual Background

       Davis was a certified forklift driver employed as a warehouseman for Ozburn Hessey

Logistics (OHL). On May 25, 2015, Davis was assigned to load pallets into a trailer that had been

leased by AAA Cooper from XTRA. The trailer was equipped with an E-track system, which

included a metal rail running horizontally down the length of the trailer wall. The rail had slots

that provided tie-down points to strap cargo securely in the trailer. The rail was attached to the

wall with rivets.

       Before beginning the loading process, Davis inspected the trailer. Davis stated he was

primarily looking for holes in the trailer’s wall, ceilings, and floor. Davis did not inspect the E-

track system and said he had never been trained to inspect the track or the rivets that affixed it to

the wall. After performing the inspection, Davis signed an inspection report stating there was no

damage to the sidewalls or floors.

       Davis then began loading pallets into the trailer. After loading four or five pallets, Davis

began loading a large pallet that was almost the size of the forklift. Because he could not see over

the cargo, Davis shifted the load to the side so he could see forward while driving. Davis stated

he looked down the side of the wall to make sure he was not touching it. As he was moving

forward, Davis felt the forklift begin to strain and slow down. When it came to a stop, Davis threw

his arm forward to prevent hitting his face and his arm struck the knob on the forklift steering

wheel. Davis stated he immediately felt an aching and numbness sensation in his arm. When one

of his fellow employees asked what had happened, he told her he had hurt his arm “really bad.”

She told him to back the forklift out. After moving the forklift back, his coworker exclaimed that

Davis’s leg had been torn open. The E-track rail had detached from the wall and impaled his leg.

Davis looked down at his leg, saw “blood everywhere,” and passed out.




                                                –2–
        Davis was taken by ambulance to the hospital where he stayed for approximately a week.

Davis ultimately had multiple surgeries on both his leg and arm. Almost three years after the

accident, he stated he was still in pain every day and could not fully bend his leg. He also suffered

nerve damage to his arm that caused his fingers to curl into a claw position.

        Immediately following the accident, AAA Cooper submitted an incident report. An initial

report stated Davis had hit the wall of the trailer. The final version of the report stated Davis “hit

the E-track on the side wall of the trailer and it broke off the wall stabbing [Davis] in the leg.”

Pictures taken of the inside of the trailer show a length of the E-track pulled off the wall and a bent

portion of the rail lying on the floor.

         Davis brought this suit against appellants alleging they had provided an unsafe trailer and

were negligent in their failure to properly inspect, repair, and maintain the trailer. Prior to trial,

Davis designated Peter Sullivan as an expert witness to testify regarding the condition of the trailer

at the time of the accident and appellants’ failure to properly inspect and maintain the E-track

system. Appellants moved to exclude Sullivan’s testimony arguing his opinions were not based

on a reliable foundation and he was not qualified to opine on the specified matters. Appellants

also moved to exclude the testimony of Dr. Jason Marchetti, Davis’s expert witness on the issue

of future medical expenses, by similarly challenging his qualifications and the basis of his

testimony. Both motions were denied by the trial court.

        At trial, Sullivan testified he inspected the trailer at issue in March 2017. Although the

inspection occurred almost two years after the accident, Sullivan stated the trailer had travelled

only 8,962 miles in that time, which amounted to only 5% of its service mileage. According to

Sullivan, the portion of the E-track rail that had detached from the wall during Davis’s accident

was still missing when he inspected the trailer. His inspection showed that 38% of the rivets used

to hold the remaining rail in place were either broken, loose, or missing and he testified that even

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one missing rivet would compromise the system. He stated the rail was supposed to be held tightly

in place by the rivets, but he could pull a portion of the rail away from the trailer wall with his

fingers. He further stated the E-track rail only had to protrude 1/16 to 1/4 of an inch from the wall

for a forklift or cargo to catch on it. Additionally, the weight of the forklift would cause the trailer

to flex, and any portion of the E-track rail that was not properly secured could pop out.

       In Sullivan’s opinion, Davis’s accident was caused by either the forklift or the cargo Davis

was moving hitting the protruding end of the E-track rail. As the forklift moved forward, the rail

pulled away from the trailer wall and pierced Davis’s thigh. Sullivan further opined that the

accident would not have occurred if the trailer had been properly inspected, maintained, and

repaired. Sullivan acknowledged that Davis had performed an inspection of the trailer prior to the

accident. But he stated Davis’s inspection was conducted under a different standard of care than

required of appellants and Davis would not be expected to examine the E-track system or the rivets

holding it in place.

       Appellants also hired an expert who examined the trailer two months after Sullivan.

Although appellants’ expert did not testify at trial, he created an expert report that was admitted

into evidence. The report concluded that Davis’s injuries were caused by the forklift impacting

the wall of the trailer with sufficient force to pull the E-track rail off the wall. The report further

concluded that, other than the missing portion of the E-track, the trailer showed no other damage

and was in “excellent condition.” Sullivan testified he did not believe the accident was caused by

the E-track rail being forced off the wall following a collision with the forklift because such an

occurrence was “nearly impossible” unless the E-track was improperly secured, and there was no

evidence to indicate a collision of that force had occurred.

       In addition to Sullivan, Davis presented the testimony of several AAA Cooper and XTRA

employees responsible for the inspection and maintenance of the trailer. Vincent Daniels with

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AAA Cooper testified he inspected the trailer before dropping it off at the warehouse to be loaded.

Daniels testified he saw no damage to the trailer or anything coming off the walls. He conceded,

however, that he did not specifically inspect the rivets holding the E-track in place.

       Steven Porter, the director of equipment for XTRA, testified regarding the trailer’s

inspections and repair history. A company inspection report showed the trailer at issue was

inspected in May approximately two weeks before the accident, and again three months later, in

August 2015. During these inspections, XTRA’s procedures required the employees to check the

E-track system for damage. The report showed that no damage to the E-track was reported either

before or after the accident despite the fact that a portion of the E-track rail was missing during the

August inspection. Porter stated that a missing portion of the E-track would be considered damage

that should be repaired. Porter further stated that missing or damaged rivets and the ability to pull

the E-track away from the wall would also be considered damage requiring repair. The repair

history for the trailer showed that the only maintenance performed on the unit before and after the

accident was that it was swept out. Porter confirmed that no rivets on the E-track system were

repaired or replaced.

       Jacob Bass, director of sales and operations with AAA Cooper, stated that a missing portion

of the E-track system is damage that should have been reported and replaced. Although Bass

conceded that the E-track is not supposed to be loose, he stated he would not consider “some

protrusion” of the E-track rail to be damage. Bass agreed that the trailer was not in “excellent

condition” as reported by appellants’ expert.

       In support of Davis’s claim for future medical expenses, Dr. Marchetti testified that he had

examined Davis and reviewed his medical records to develop a “life care plan.” The plan

addressed Davis’s future medical needs with respect to the injuries he suffered to his arm and his

leg. According to Marchetti, all of the problems Davis was experiencing with his arm and leg

                                                 –5–
resulted from the trauma he sustained in the accident. Marchetti opined the present value of

Davis’s future medical expense needs was $223,275.69.

       One of Davis’s treating physicians, Dr. David Zehr, diagnosed Davis’s arm and hand issues

as resulting from a pinched ulnar nerve. He also originally diagnosed Davis as having a neuroma

resulting from trauma to his arm. Dr. Zehr later changed his diagnosis, stating Davis had a

neurofibroma in his arm and he did not find anything in his research to show that a neurofibroma

would “come on after an injury.”

       Appellants filed proposed jury questions, instructions, and definitions.            Included in

appellants’ proposed negligence definition was an instruction on premises defect liability. The

charge submitted to the jury by the trial court gave only a general negligence definition. Based on

that definition, the jury found all three parties negligent. The amount of negligence attributed to

each party was: AAA Cooper – 40%, XTRA – 50%, and Davis – 10%. Davis was awarded

damages for medical care expenses, physical impairment, physical pain, disfigurement, mental

anguish, lost wages, and loss of earning capacity. The amount awarded for future medical

expenses was the amount recommended by Sullivan.

        Appellants filed a motion for judgment notwithstanding the verdict and a motion for new

trial. Both motions were denied by the trial court following a hearing. This appeal followed.

                                              Analysis

Negligence or Premises Liability

       In their first issue, appellants contend the trial court erred in submitting the case to the jury

using a general negligence question rather than a premises liability question. In reviewing alleged

error in a jury charge submission, we consider the pleadings of the parties and the nature of the

case, the evidence presented at trial, and the charge in its entirety. United Scaffolding, Inc. v.

Levine, 537 S.W.3d 463, 469 (Tex. 2017). Whether the condition that allegedly caused the

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plaintiff’s injury is a premises defect is a legal question we review de novo. Id. It is well settled

that, “a premises defect case improperly submitted to the jury under only a general-negligence

question, without the elements of premises liability as instructions or definitions, causes the

rendition of an improper judgment.” Id. at 469–70.

       In this case, the crux of the issue is whether the trailer in which Davis was injured was a

“premises” over which appellants had control, or was merely appellants’ personal property. In

making the argument that the trailer must be considered a premises, appellants contend that, once

the trailer was parked next to the warehouse and the wheels were chocked to prevent the trailer

from moving, the trailer “became an extension, and thus a part, of the warehouse premises.” We

disagree.

       In determining if premises liability attaches to claims involving movable property, courts

mainly focus on whether the property was affixed or connected to the real property. See City of

Houston v. Harris, 192 S.W.3d 167, 173 (Tex. App.—Houston [14th Dist.] 2006, no pet.). “When

property is attached to realty and cannot be removed without materially damaging the property, it

loses its character as personal property and becomes part of the realty.” Eun Bok Lee v. Ho Chang

Lee, 411 S.W.3d 95, 110 (Tex. App.—Houston [1st Dist.] 2013, no pet.). Whether personal

property has become a part of the realty is generally a fact question determined based on objective

manifestations of intent to affix the property to the realty. Id. However, undisputed, objective

evidence regarding intent may establish whether the property is part of the realty or remains

personal property as a matter of law. Id.

       There is no evidence in this case of any objective manifestations of intent for the trailer to

become affixed to the warehouse in a manner that would render it part of the business premises.

The trailer was simply backed up to the edge of the warehouse door to allow for easier loading.

The wheels were rendered immovable for safety purposes, not to affix it or make it an addition to

                                                –7–
the warehouse realty. This is demonstrated by the fact that, once loading was complete, it was

intended that the trailer be removed.

       Appellants rely heavily on United Scaffolding, Inc. v. Levine for the proposition that the

trailer should qualify as an extension of the premises. In Levine, the court addressed whether a

contractor had sufficient control over scaffolding attached to the side of a business premises to be

liable under a theory of premises liability. Levine, 537 S.W.3d at 474. In that case, however, the

court never addressed whether the scaffolding was properly considered a part of the premises

because that issue was not presented by the parties. Id. at 486 (Boyd, J. dissenting). The court

only discussed the issue of control. Accordingly, the analysis in Levine is inapposite.

       Appellants also rely heavily on the case of Gibbs v. ShuttleKing, Inc., 162 S.W.3d 603

(Tex. App.—El Paso 2005, pet. denied). In Gibbs, a bus driver sued his employer for failure to

provide a reasonably safe workplace after he was wounded during a robbery of the charter bus he

was driving. Id. at 606–07. The court concluded the bus was “sufficiently similar to a premises”

to fall under the purview of premises liability law as that law relates to the duty to protect against

third party criminal conduct. Id. at 613. Significant to the court’s analysis was the fact that the

bus was the plaintiff’s “workplace.” Id. at 613.

       Although appellants do not characterize it this way, Gibbs does not concern the

circumstances under which mobile property may be considered a part of a fixed premises. Instead

it concerns whether mobile property can be considered a premises in and of itself because it is

functioning as such. For example, in Hausman Packing Co. v. Badwey, the court concluded that

premises liability law applied to the interior of a truck out of which the defendants were operating

a butcher shop. 147 S.W.2d 856, 858 (Tex. App.—San Antonio 1941, writ ref’d). The defendants

displayed their goods in the trailer portion of the truck and customers would enter the trailer to

make their purchases. Id. The fact that the truck could be moved did not change the fact that the

                                                   –8–
manner in which the defendants were using the vehicle made it “in every respect similar to a

house.” Id. Similarly, in Key v. Expressjet Airlines, Inc., the court concluded the interior of an

airplane could be considered a “moveable business premises” because, like businesses located on

real property, customers were invited in and business was conducted within the cabin. No. SA-

16-CV-00510-OLG, 2017 WL 10775020, at *6 (W.D. Tex. Dec. 12, 2017).

       There is no evidence in this case to suggest the trailer at issue was being used as a

“moveable business premises.” Customers were not invited into the trailer for the purpose of

conducting business. And, although workers moved in and out of the trailer to load it, it was not,

in and of itself a workplace nor, as discussed earlier, an extension of the warehouse. Instead, the

record shows the trailer was used solely as a tool to transport pallets of goods from one location to

another. As such, the trailer was no more a “business premises” than the forklift Davis used to

move the pallets from the warehouse to the trailer. A cause of action for failure to maintain a tool

used by a plaintiff in the course of his work is a claim sounding in negligence. Cf. Simmons v.

Briggs Equip. Trust, 221 S.W.3d 109, 113 (Tex. App.—Houston [1st Dist.] 2006, no pet.)

(negligence suit brought by employee injured when fire started in mobile rail-car mover he was

operating). The fact that the tool happens to be large enough for the plaintiff to enter inside of it

does not, by itself, change the nature of the claim. Id.

       During oral argument, appellants cited this Court to two cases they say stand for the

proposition that the trailer should be considered a premises; Maldonado v. Sw. Motor Transport,

Inc., No. 04-10-00235-CV, 2011 WL 649170 (Tex. App.—San Antonio Feb. 23, 2011, no pet.)

and Fontenot v. FedEx Ground Package Sys., Inc., 146 Fed. Appx. 731 (5th Cir. 2005). In

Maldonado, the plaintiff sued the owner of a warehouse for injuries he sustained when a box on

which he was standing collapsed and he fell to the floor of a trailer parked in the warehouse loading

area. Maldonado, 2011 Wl 649170, at *1. The court did not hold that the trailer was a premises

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or an extension of the warehouse. Instead, the only issue was whether the warehouse owner had

actual or constructive knowledge that the boxes loaded inside the trailer parked on the warehouse

premises created an unsafe condition. Id. at *2. Personal property that creates an unsafe condition

on real property may give rise to a premises liability claim against the party that owns or controls

the real property. Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 388 (Tex. 2016). Here, it

is undisputed that neither appellant owned or controlled the real property on which the trailer was

parked.

          In Fontenot, an independent contractor driving his own truck was injured when FedEx

employees placed heavy boxes on a high shelf in his truck’s cargo area and then refused to help

him move the boxes to the floor. Fontenot, 146 Fed. Appx. at 733. The driver sued FedEx for

negligence and appealed the district court’s determination that he was asserting a premises liability

cause of action. Id. The fifth circuit reversed the district court’s judgment holding the plaintiff’s

claim did not sound in premises liability because the plaintiff was the owner of the “purported

premises.” Id. Since the case was decided on that basis, the opinion did not address the issue

presented here, which is whether the truck could be considered a premises at all.1

          Based on the foregoing, we conclude the trailer was neither a premises nor an extension of

the warehouse premises, but was instead appellants’ personal property. Accordingly, the trial court

did not err in refusing to include premises liability instructions in the jury charge. We resolve

appellants’ first issue against them.




     1
       The opinion contains a hypothetical in which the court stated the truck owner “presumably could be liable to a
FedEx employee who, when loading, slipped on a slick oily area on the back floor of the truck which [the truck owner]
had negligently allowed to remain there.” The court does not state, however, what theory of liability would apply to
the truck owner, i.e. negligence or premises liability. Furthermore, the hypothetical scenario presented by the court is
dicta.
                                                        –10–
Expert Testimony and Sufficiency of the Evidence

       I. Liability Expert

       In appellants’ second and third issues, argued together, they contend the trial court erred in

refusing to exclude the testimony of Davis’s liability expert and the evidence is both legally and

factually insufficient to support the jury’s answers to the liability questions in the court’s charge.

The trial court is the “evidentiary gatekeeper” responsible for excluding irrelevant and unreliable

expert evidence. Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex. 2002). The court has

broad discretion to determine the admissibility of evidence, and we will reverse only for an abuse

of that discretion. Id. A trial court abuses its discretion when it acts without reference to any

guiding rules or principles. Nabors Well Servs., Ltd v. Romero, 508 S.W.3d 512, 529 (Tex. App.—

El Paso 2016, pet. denied).

       To be admissible, expert testimony must meet three predicates: the witness must be

qualified; the opinion must be relevant; and the opinion must be based on a reliable foundation.

Romero, 508 S.W.3d at 529.          On appeal, appellants do not challenge either Sullivan’s

qualifications or the relevance of his opinions. They challenge only the reliability of the foundation

on which his opinions were based. Expert testimony is unreliable if it is based on unreliable data

or if the expert draws conclusions from the underlying data based on a flawed methodology. Ford

Motor Co. v. Ledesma, 242 S.W.3d 32, 39 (Tex. 2007). Testimony may also be unreliable if there

is “too great an analytical gap between the data the expert relies on and the opinion offered.”

Zwahr, 88 S.W.3d at 629. Whether an analytical gap exists is largely determined by comparing

the facts the expert relied on, the facts in the record, and the expert’s ultimate opinion. Gharda

USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 349 (Tex. 2015). In determining admissibility,

the trial court does not decide whether the expert’s conclusions are correct, but only whether the




                                                –11–
analysis used to reach those conclusions is reliable. Gammill v. Jack Williams Chevrolet, 972

S.W.2d 713, 727 (Tex. 1998).

        In reviewing a legal sufficiency challenge to the evidence, we credit evidence that supports

the verdict if reasonable jurors could have done so and disregard contrary evidence unless

reasonable jurors could not have done so. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l

Dev. & Research Corp., 299 S.W.3d 106, 115 (Tex.2009); City of Keller v. Wilson, 168 S.W.3d

802, 827 (Tex.2005). A legal sufficiency challenge “will be sustained when (a) there is a complete

absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving

weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital

fact is no more than a scintilla, or (d) the evidence conclusively establishes the opposite of the vital

fact.” Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). Evidence does not

exceed a scintilla if it is so weak as to do no more than create a mere suspicion or surmise that the

fact exists. Thompson & Knight LLP v. Patriot Expl., LLC, 444 S.W.3d 157, 162 (Tex. App.—

Dallas 2014, no pet.). An expert's opinion that is speculative or conclusory or assumes facts

contrary to evidence in the record is legally insufficient to support a verdict. Id.

        To evaluate a factual sufficiency challenge, we must consider and weigh all the evidence.

Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam). We can set aside a

verdict only if the evidence is so weak or the finding is so against the great weight and

preponderance of the evidence that it is clearly wrong and unjust. Id. We must not substitute our

judgment for that of the jury and should remain cognizant that the jury is the sole judge of witness

credibility. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).

        Sullivan’s opinion in this case was that appellants failed to properly inspect, maintain, and

repair the E-track system in the trailer and this failure was the proximate cause of Davis’s injuries.

The focus of appellants’ challenge to Sullivan’s opinion is the length of time between the accident

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and his inspection of the trailer. Appellants argue Sullivan could only speculate regarding the

condition of the E-track at the time Davis was injured and, therefore, his opinion is not founded

on reliable data.

       Sullivan’s opinion was based on, among other things: (1) his 39 years of experience and

training in vehicle mechanical systems for commercial motor vehicles including maintenance and

safety, cargo loading and unloading, cargo securement, and accident investigation and

reconstruction; (2) the accident report created by AAA Cooper; (3) online mechanical

specifications for the E-track system and its installation; (4) pictures of the interior of the trailer

taken immediately after the accident; and (5) his inspection of the trailer in 2017. Sullivan stated

that the condition of the trailer at the time of his inspection was substantially the same as when

Davis was injured based on the “little additional mileage” that had accumulated on the trailer since

the accident, the clear absence of any repair or maintenance to the E-track system since the

accident, and photos of the interior of the trailer taken in 2015 and 2017 showing it was in nearly

identical condition. Sullivan stated that the deteriorated state of the E-track would not have

occurred as a result of the low usage of the trailer in the two years following the accident and, from

his experience, the condition of the trailer demonstrated that maintenance had been neglected for

well over two years. According to Sullivan, the rivets remaining in the E-track in 2017 appeared

of uniform age and there was no evidence any new rivets had been installed to replace those that

had been damaged. XTRA’s director of equipment confirmed that no rivets on the E-track system

had been repaired or replaced.

       The lapse of time between an accident and an inspection is the type of challenge that goes

to the weight of the evidence rather than its admissibility. Nabors, 508 S.W.3d at 536. Sullivan

addressed at length the factual basis for his determination that the condition of the trailer had not

changed substantially in the time between the accident and his inspection. The information used

                                                –13–
by Sullivan to form his opinion, including photographs of the trailer taken immediately after the

accident, is the type of data that is sufficient to support such a conclusion. See Ceniceros v.

Pletcher, No. 07-15-00427-CV, 2017 WL 2829325, at *4 (Tex. App.—Amarillo June 29, 2017,

pet. denied). Although appellants point to factors such as the truck’s continued use and the quality

of the photographs Sullivan used, these are appropriate topics for cross-examination and do not

render the evidence inadmissible. Nabors, 508 S.W.3d at 536.

        It is undisputed that Davis was injured when a portion of the E-track detached from the

wall and impaled his leg. The only dispute concerned the cause of the detachment. Appellants’

expert contended the rail detached as a result of Davis slamming the forklift into the trailer wall

with sufficient force to dislodge the E-track. Sullivan discounted this theory, stating the trailer

wall showed no evidence of an impact of this magnitude either in 2015 or 2017. Appellants attempt

to discredit this testimony by pointing out that Sullivan stated Davis impacted the E-track with the

forklift. Appellants mischaracterize Sullivan’s statement. His testimony was that the forklift hit

“the protruding end of the E-track.” This statement is not inconsistent with Sullivan’s opinion that

the forklift did not significantly impact the trailer wall.

        Sullivan stated it would have been “nearly impossible” for the accident to have occurred if

the portion of E-track that impaled Davis had been properly secured to the wall. Appellants point

to photographs purportedly showing “rivets, or remnants of rivets, in every single place they

should have been for the section of E-track that was ripped off the trailer wall” to argue that

Sullivan’s opinion is unfounded. Contrary to appellants’ assertion, however, Sullivan opined that

the E-track had to protrude from the wall only a fraction of an inch for the accident to occur; not

that rivets had to be entirely absent. Sullivan stated many of the rivets in the trailer were either

loose or damaged and not holding the E-track firmly against the wall.




                                                 –14–
       Appellants also point to inspection reports created by XTRA, AAA Cooper, and Davis

shortly before the accident in which no damage to the inside of the trailer was noted. Appellants

rely on these reports for the proposition that the trailer was undamaged both at the time XTRA

rented the trailer to AAA Cooper, and again when the trailer was being loaded by Davis. The

validity and reliability of these inspection reports, at least with respect to the condition of the E-

track, was brought into doubt by the testimony of the employees who either conducted the

inspections or were in charge of the equipment. The jury was free to consider this conflicting

evidence and we may not substitute our judgment for theirs. See Jackson, 116 S.W.3d at 761.

       Davis testified that, although he inspected the inside of the truck before he began loading,

he did not specifically inspect the E-track rail and he had no training with respect to the E-track

system. The AAA Cooper employee that inspected the truck before Davis also stated that he

looked at the walls of the trailer for obvious damage, but did not inspect the rivets attaching the E-

track to the walls. Although the inspection reports created by XTRA stated the trailer had no

damage, these reports continued to state the trailer had no damage after Davis’s accident when a

section of the E-track rail was missing from the wall. Although the E-track was never repaired,

the XTRA inspection reports put into evidence show the trailer was consistently reported as having

“no damage” up until shortly before it was inspected by Sullivan. XTRA’s director of equipment

conceded that the problems found by Sullivan in his inspection, including the missing portion of

the E-track and another portion that could be easily pulled from the wall, should have been reported

as damage on the inspection reports.

       Finally, appellants argue there is no evidence XTRA knew or should have known of any

defects in the rivets in the E-track because “Sullivan never expressly mentioned XTRA Lease” in

his opinions. The record does not support this argument. In Sullivan’s report, which was admitted

into evidence, he opined that, based on the materials he reviewed and his inspection of the trailer,

                                                –15–
the E-track system “was likely in need of repair prior to the time of the subject injury incident and

was improperly or inadequately secured to the cargo walls of the subject semi-trailer.” Sullivan

further opined that the poor condition of the E-track “likely should have been readily identifiable,

documented, and corrected by Defendant XTRA Lease LLC prior to renting the subject semi-

trailer to Defendant AAA Cooper Transportation.”

       Based on the foregoing, we conclude the trial court did not abuse its discretion in admitting

Sullivan’s expert testimony and the evidence is both legally and factually sufficient to support the

jury’s findings as to liability. We resolve appellants’ second and third issues against them.

       II. Future Medical Expenses Expert

       In their fourth and fifth issues, again argued together, appellants contend the trial court

erred in admitting the testimony of Davis’s expert on future medical expenses and the evidence

was factually insufficient to support the jury’s award of these expenses. Appellants state they are

not challenging all of the expenses awarded, but are “target[ing]” only “the medical expenses

assigned to future medical treatment of the neurofibroma in Davis’s right elbow.” Appellants

specifically challenge Dr. Marchetti’s qualifications to opine on the issue of whether Davis’s arm

issues were caused by a traumatically induced neuroma or a pre-existing neurofibroma unrelated

to the accident.

       The proponent of expert testimony has the burden to show that the expert possesses special

knowledge as to the specific matter on which he proposes to give an opinion. Broders v. Heise,

924 S.W.2d 148, 152–53 (Tex. 1996). The rules of evidence require that the expert be qualified

“by knowledge, skill, experience, training, or education,” and that their testimony “assist the trier

of fact.” TEX. R. EVID. 702. The proper inquiry concerning whether a doctor is qualified to testify

is not his area of practice, but his familiarity with the issues involved in the claim before the court.

Foster v. Richardson, 303 S.W.3d 833, 843 (Tex. App.—Fort Worth 2009, no pet.).

                                                 –16–
       Appellants argue that Dr. Marchetti is “not an orthopedic doctor” and, therefore, not

qualified to contest the opinion of Dr. Zehr, Davis’s treating orthopedic surgeon, as to the cause

of Davis’s arm issues. Dr. Zehr originally attributed Davis’s arm injury to a traumatically induced

neuroma caused by the accident, but then changed his opinion to say he was suffering from a pre-

existing neurofibroma that was not caused by the trauma to his arm. Dr. Marchetti disagreed,

stating it was unlikely Davis had neurofibromatosis and, even if he did, it was aggravated and

became symptomatic due to the trauma caused by the accident.

       Although Dr. Marchetti’s specialty was physical medicine and rehabilitation rather than

orthopedic surgery, the record shows he was a member of the American Association of Orthopedic

Medicine and had experience dealing with neuromas. In addition, Dr. Marchetti served as an

advisor for the Texas Neurofibromatosis Foundation and the Department of Defense’s program

for neurofibromatosis research funding. He also had a child with neurofibromatosis and was “very

familiar with the variable presentation of neurofibromatosis as well as the unique medical concerns

that can occur.” Finally, Dr. Marchetti was certified as a designated doctor for Texas Workers’

Compensation which involved determining whether the mechanism of a work-related injury was

sufficient to cause the employee’s pathology. We conclude this is sufficient to show that Dr.

Marchetti had specialized knowledge, skill, experience, training, or education that would assist the

trier of fact on the subject of the claimed injury to Davis’s arm. The trial court did not abuse its

discretion in admitting his testimony. See id. at 845.

       Dr. Marchetti testified at length regarding Davis’s injury to his arm. He stated he had

reviewed all of Davis’s medical records and independently examined him. He stated it was

doubtful that Davis had neurofibromatosis given his prior medical history and the initial pathology

report stating he had a post-traumatic neuroma. But, even if he had neurofibromatosis, Dr.

Marchetti stated it was clear the trauma of the injury caused any pre-existing neurofibromas to

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accelerate and worsen. Dr. Marchetti noted that Davis was entirely asymptomatic before the

accident and, afterwards, had significant pain and numbness. He said “I know with neurofibromas,

that if you traumatize them they can go from being tiny and doing nothing, to swelling and causing

nerve damage.”

       The testimony of Dr. Zehr that appellants rely upon does not, in fact, conflict with Dr.

Marchetti’s assessment. After stating that he believed Davis had a neurofibroma, Dr. Zehr was

asked, “So what does that mean as it relates to his injury? Do you have an opinion as to that?”

Dr. Zehr responded, “I do not. I don’t know, I don’t know. Even in my research I did not find

anything that says neurofibromas come on after an injury. Neuromas, yes, neurofibromas, no.”

Dr. Marchetti agreed with Dr. Zehr that neurofibromas do not “come on after an injury.” But he

stated the trauma could have caused the aggravation of a pre-existing neurofibroma resulting in

the Davis’s current medical issues. We conclude the evidence is factually sufficient to support the

jury’s award of future medical expenses for Davis’s arm injury. We resolve appellants’ fourth and

fifth issues against them.

       We affirm the trial court’s judgment.




                                                  /Amanda L. Reichek/
                                                  AMANDA L. REICHEK
                                                  JUSTICE



180541F.P05




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                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 AAA COOPER TRANSPORTATION                           On Appeal from the 14th Judicial District
 AND XTRA LEASE, LLC, Appellants                     Court, Dallas County, Texas
                                                     Trial Court Cause No. DC-16-10773.
 No. 05-18-00541-CV          V.                      Opinion delivered by Justice Reichek.
                                                     Justices Schenck and Osborne participating.
 OLYNTHUS M. DAVIS AND
 PROPERTY & CASUALTY INSURANCE
 COMPANY OF HARTFORD, Appellees

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

         It is ORDERED that appellees OLYNTHUS M. DAVIS AND PROPERTY &
CASUALTY INSURANCE COMPANY OF HARTFORD recover their costs of this appeal and
the full amount of the trial court’s judgment from appellants AAA COOPER
TRANSPORTATION AND XTRA LEASE, LLC and from RLI Insurance Company as surety
on appellants’ supersedeas bond.


Judgment entered August 20, 2019




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