2020 WL 7319550

United States District Court, W.D. Texas, San Antonio Division.
CHRIS MARCHLEWICZ, Plaintiff,
v.
BROTHERS XPRESS, INC., CHARANJIT SINGH, HARPREET SINGH, DHALIWAL BROTHERS CARRIER, INC., AND DHALIWAL BROS CARRIER, INC., Defendants.
SA-19-CV-00996-DAE
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Filed 12/10/2020

ORDER
ELIZABETH S. (“BETSY”) CHESTNEY UNITED STATES MAGISTRATE JUDGE
*1 Before the Court in the above-styled cause of action are the following motions, which were referred to the undersigned for disposition: Deponent, Stephen E. Earle, M.D.’s Second Amended Objections to and Motion to Modify the Subpoena Duces Tecum attached to Defendant Dhaliwal Bros Carrier, Inc.’s Cross Notice of Deposition [#134]; Defendants’ Opposed Motion to Strike Trooper Caleb Steel as a Testifying Expert Witness [#136]; Defendants’ Opposed Motion to Limit the Testimony of Plaintiff’s Testifying Expert Witness, Jon Paul Dillard [#142]; Defendant’s Opposed Motion to Limit the Testimony of Plaintiff’s Testifying Expert Witness, Jon Paul Dillard [#143]; Defendants’ Opposed Motion to Exclude the Testimony of Plaintiff’s Expert Witness Stephen Earle, M.D. [#152]; and Defendants Brothers Xpress, Inc., Harpreet Singh and Charanjit Singh’s Motion to Strike Plaintiff’s Sur-Reply to Defendants’ Reply to Plaintiff’s Response to Defendants’ Opposed Motion to Limit the Testimony of Plaintiff’s Testifying Expert Witness, Jon Paul Dillard [#173].

The Court held a telephonic hearing on the motions on December 9, 2020, at which all parties were present through counsel. At the close of the hearing, the Court issued certain oral rulings and took other issues under advisement. This Order memorializes the Court’s oral rulings and resolves all issues left for the Court’s further consideration.

I. Background
This is a personal-injury action arising out of a motor-vehicle accident between Plaintiff Chris Marchlewicz’s vehicle and an 18-wheeler driven by Defendant Charanjit Singh, who was allegedly working for Defendants Brothers Xpress, Inc. and Harpreet Singh, delivering an interstate shipment of goods, at the time of the accident. Plaintiff alleges he was also the statutory employee of Defendant Dhaliwal Bros Carrier, Inc., the interstate common carrier that had arranged for the transportation of the shipments at issue (hereinafter “Dhaliwal”). According to Plaintiff, his vehicle was struck from behind by the tractor-trailer operated by Charanjit Singh and he suffered severe injuries. This suit alleges claims of negligence and gross negligence against Singh, based on an alleged failure to keep a proper lookout and to timely apply his brakes to avoid the collision, and theories of respondeat superior, vicarious liability, negligent hiring, supervision, and entrustment as to Defendants Brothers Xpress, Harpreet Singh, and Dhaliwal.

Defendants have filed various motions to strike or limit the testimony of Plaintiff’s non-retained experts Dr. Stephen Earle (one of Plaintiff’s treating physicians) and Trooper Caleb Steel (the investigating Texas Department of Public Safety officer for the subject accident) and Plaintiff’s retained expert Jon Paul Dillard (a safety consultant in the area of “motor fleet supervision”). Dr. Earle has filed a motion to modify the subpoena duces tecum served on him by Dhaliwal in conjunction with the notice of his deposition. Finally, Defendants have filed a motion to strike Plaintiff’s sur-reply filed in opposition of Defendants’ motion to limit the testimony of Dillard. The Court addresses each of these motions in turn.

I. Dr. Earle’s Motion to Modify Subpoena [#134]
*2 Dr. Earle and Dhaliwal filed a Joint Advisory concerning Dr. Earle’s motion to modify the subpoena on December 8, 2020, informing the Court that they had reached an agreement on the issues giving rise to the motion [#174]. Accordingly, the Court will dismiss Dr. Earle’s motion as moot.

II. Daubert Motions
There are four Daubert motions before the Court, seeking to limit or exclude the testimony of Plaintiff’s retained and non-retained experts.

A. Legal Standard for Admissibility of Expert Opinions
In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 589 (1993), the Supreme Court held that trial judges must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. Subsequent to Daubert, Rule 702 of the Federal Rules of Evidence was amended to provide that a witness “qualified as an expert … may testify … in the form of an opinion … if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” See Guy v. Crown Equipment Corp., 394 F.3d 320, 325 (5th Cir. 2004) (quoting Fed. R. Evid. 702). The Rule 702 and Daubert analysis applies to all proposed expert testimony, including nonscientific “technical analysis” and other “specialized knowledge.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999).

Under Daubert, expert testimony is admissible only if the proponent demonstrates that: (1) the expert is qualified; (2) the evidence is relevant to the suit; and (3) the evidence is reliable. See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998); Watkins v. Telsmith, Inc., 121 F.3d 984, 989 (5th Cir. 1997). The overarching focus of a Daubert inquiry is the “validity and thus evidentiary relevance and reliability of the principles that underlie a proposed submission.” Watkins, 121 F.3d at 989 (quoting Daubert, 509 U.S. at 594–96). Because the Daubert test focuses on the underlying theory upon which the opinion is based, the proponent of expert testimony need not prove the expert’s testimony is correct, but rather that the testimony is reliable. Moore, 151 F.3d at 276. This determination of reliability includes a preliminary determination of “whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592–93.

Daubert sets forth four specific factors that the trial court should ordinarily apply when considering the reliability of scientific evidence: (1) whether the technique can or has been tested; (2) whether it has been subjected to peer review or publication; (3) whether there is a known or potential rate of error; and (4) whether the relevant scientific community generally accepts the technique. Id. This test of reliability, however, is “flexible,” and these factors “neither necessarily nor exclusively apply to all experts or in every case.” Kumho Tire Co., 526 U.S. at 141. “Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” Id. at 142. “The proponent need not prove that the expert’s testimony is correct, but she must prove by a preponderance of the evidence that the testimony is reliable.” Moore, 151 F.3d at 276.

*3 Notwithstanding the testing of an expert’s qualification, reliability, and admissibility, “the rejection of expert testimony is the exception rather than the rule.” Fed. R. Evid. 702, Adv. Comm. Notes (2000). Daubert did not work a “seachange over federal evidence law,” and “the trial court’s role as gatekeeper is not intended to serve as a replacement for the adversary system.” Id. (quoting United States v. 14.38 Acres of Land, 80 F.3d 1074, 1078 (5th Cir. 1996)). “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596.

B. Defendants’ Motion to Strike Trooper Caleb Steel [#136]
By this motion, Defendants collectively ask the Court to exclude the testimony of Trooper Caleb Steel, one of Plaintiff’s non-retained experts. Trooper Steel was the investigating Department of Safety (“DPS”) officer responding to the scene of the accident and completed a Texas Peace Officer’s Crash Report after his investigation of the scene, which stated that the accident occurred in a construction zone; that traffic at the location of the crash was congested due to a lane closure; and that Singh failed to control his speed, causing him to collide with Plaintiff’s vehicle. (Crash Report [#136-1] at 4.) Steel will likely testify at trial as a fact witness regarding his observations about the scene of the accident and this report, but Plaintiff also designated him as a non-retained expert to testify regarding his opinions on the various factors contributing to the crash. Defendants’ motion seeks to limit Steel’s testimony to this fact testimony and to prevent him from testifying as to his opinion regarding the cause of the accident, arguing that Steel’s deposition testimony on accident causation fails to satisfy the Daubert standard for reliability and improperly invades the province of the jury by rendering a legal opinion on an ultimate issue in this case. The Court will deny the motion.

Steel has been a state trooper in Texas for a little over five years and a peace officer for a total of eight years. (Steel Dep. [#136-2] at 6:7–12.) He has training in basic crash investigation and more advanced accident reconstruction through DPS, which he testified involved training on how to gather information from a traffic crash to determine the different factors involved in an accident, including the speeds of the vehicles involved based on such things as skid marks and other markings on the road. (Id. at 6:12–7:18.) He has acted as lead investigator of approximately 150 to 200 traffic crashes. (Id. at 11:24–12:2.) As previously noted, Steel responded to the scene of the traffic accident underlying this suit and completed a crash report. Steel testified that his investigation of the accident did not require the use of any advanced accident reconstruction techniques to determine the contributing factors of the crash because the crash was a “fairly straightforward” rear-end collision. (Id. at 8:19–9:2.) Steel explained that he observed that traffic was backed up at the crash scene due to construction (repaving of the interstate); that Singh’s vehicle did not slow down and come to a complete stop with the traffic that was stopped or slowed ahead of him; and that his failure to do so caused the accident. (Id. at 9:2–8, 13:17–25, 15:3–10, 20:3–9.) In reaching this conclusion, Steel relied on the verbal statements that were given to him by the drivers involved, as well as the observed debris on the scene and damage to the vehicles. (Id. at 9:10–13.)

*4 Defendants’ reliability challenge is based on the alleged failure of Steel to perform any scientific analysis, to independently verify the objective factors contributing to the accident, such as vehicle speed and amount of time traveled prior to the accident, or to complete a full reconstruction of the accident. Defendants do not contest that Steel is qualified to testify in the areas of accident causation and reconstruction. The Court finds that Defendants’ reliability challenge and arguments regarding any alleged gaps in Steel’s causation and reconstruction analysis are more appropriately handled through cross examination at trial.

Nor is the Court persuaded by Defendants’ argument that Steel should not be able to render an opinion on causation because in doing so he reaches a legal conclusion reserved to the fact finder. Testimony in the form of an opinion or inference otherwise admissible “is not objectionable just because it embraces an ultimate issue” to be decided by the trier of fact. Fed. R. Evid. 704(a). Although Steel may not tell the jury which result to reach on the claims asserted by Plaintiff, he may testify as to causation, even if that is a legal issue in this case. See Owen v. Kerr-McGee Corp., 698 F.2d 236, 239–40 (5th Cir. 1983).

In summary, Plaintiff has satisfied his burden to demonstrate the qualifications of Steel to testify as a non-retained expert in this case on the contributing factors to this accident and the reliability of his methods in determining same. The Court will therefore deny Defendants’ motion. This denial will, however, be without prejudice to Defendants re-urging their arguments in a motion in limine before the District Court in advance of trial or to raising any objections to Steel’s testimony at trial.

C. Defendants’ Motion to Limit the Testimony of Jon Paul Dillard [#142, #143]
Defendants, by two separate motions, ask the Court to limit the testimony of Jon Paul Dillard, Plaintiff’s sole retained expert. Dillard is a safety consultant in the area of “motor fleet supervision” and was retained to offer an opinion on whether unsafe practices contributed to the accident at issue in this case. Dillard’s expert report contains opinions as to the safety violations of Charanjit Singh, such as the failure to keep a proper lookout and failure to control vehicle speed, as well as violations by Brothers Xpress, Harpreet Singh, and Dhaliwal in their hiring, training, and supervision of Charanjit Singh. (Expert Report [#92] at 8–15.) Dillard also opines on the contractual relationship between Charanjit Singh and Dhaliwal and opines that Dhaliwal was the statutory employer of Charanjit Singh at the time of the collision. (Id. at 18–19.)

By motion #142, Defendants challenge Dillard’s qualifications to offer accident causation opinions based on his lack of training in accident reconstruction. Defendants also challenge the reliability of Dillard’s methodology in reaching his causation opinions because he did not engage in any reconstruction or scientific analysis of the accident scene or conduct any independent investigation, only relying on produced discovery to reach his conclusions. By motion #143, Dhaliwal argues that Dillard should be prohibited from rendering an expert opinion on contract interpretation and the legal question of whether Dhaliwal was Singh’s statutory employer. The Court will grant both motions.

Defendants confirmed at the Court’s hearing that they are not disputing Dillard’s qualifications to testify as an expert on Federal Motor Carrier Safety Regulations generally. Defendants merely object to Dillard providing testimony that that Defendants deviated from the standard of care set forth by these standards and that any safety violations were the cause of the accident at issue. The Court agrees that Plaintiff has not satisfied his burden to establish that Dillard is qualified to testify on accident causation. Although Dillard has decades of experience in commercial motor vehicle safety and compliance with safety regulations, he testified in his deposition that he is not certified as an accident reconstructionist, nor has he received any training in this area. (Dillard Dep. [#142-2] at 67:8–19.) He admitted in his deposition that he did not engage in any independent analysis or simulation of the accident site, did not visit the accident site, did not perform any calculations regarding the factors at issue in the crash, and did not interview any witnesses or parties. (Id. at 72:9–73:24.) Dillard is not qualified to testify on accident causation.

*5 Accordingly, Dillard must limit his testimony at trial to general safety standards governing commercial motor vehicles, as he is clearly qualified to testify as to this topic and his testimony will assist the jury in understanding the standards at issue in this case. He may also testify on why the safety standards are what they are and how, generally, they contribute to safe driving and fewer accidents. He may not testify, however, regarding his opinions that are framed as opinions about deviations from safety standards but are actually opinions about the cause of the accident, including his opinions that: (1) Charanjit Singh failed to follow the governing safety regulations and standards or the Texas Transportation Code by failing to employ a proper lookout or failing to control the speed of his vehicle or (2) Charanjit Singh’s failure to employ proper defensive driving techniques and failure to exercise ordinary care caused or contributed to the accident at issue. On the other hand, Dillard may testify that Brothers Xpress failed to provide the required safety trainings of its drivers and failed to train Charanjit Singh to be a safe and defensive commercial operator. That is within his area of expertise. But he may not testify that the failure to do proper safety training constitutes “a conscious disregard for Plaintiff and other motorists on the roadway.” Dillard’s expertise is about what the safety regulations require, why they are important, and what constitutes compliance. Whether Defendants’ actions were conscious, unintentional, or otherwise is not within Dillard’s field of expertise and is a judgment best left to the factfinder.

Finally, the Court also agrees with Dhaliwal that Dillard is not qualified to render any opinions on the contractual relationship between Charanjit Singh and Dhaliwal and the ultimate legal question of whether Dhaliwal was Singh’s statutory employer. Dillard opines in his expert report that Dhaliwal failed to adhere to the governing contractual agreement between the parties; that Dhaliwal is vicariously liable for the selection and use of Brothers Xpress in selecting and training its drivers; and that Dhaliwal was acting as Singh’s statutory employer at the time of the accident. Plaintiff has filed a motion for partial summary judgment on these very legal issues, which remains pending before the District Court [#120]. Depending on the resolution of that motion by the District Court, Dhaliwal’s challenge to Dillard’s testimony on this issue may be mooted. But to the extent that there is something left for the jury to determine, Dillard should not be permitted to testify on this subject. It is the Court’s job, not Dillard’s, to interpret the relevant contracts at issue in this case. Dillard is not a lawyer or any other sort of legal expert, and his interpretations are not borne out of legal training or expertise and will not assist the factfinder but may confuse them. The jury will be instructed to follow the Court’s instructions and explanations of the relevant law.

In summary, the Court will grant Defendants’ motions seeking to limit the testimony of Dillard, who is not qualified to testify in the area of accident reconstruction or contract construction. The Court will also dismiss Defendants’ Motion to Strike Plaintiff’s Sur-Reply in support of Plaintiff’s response to Motion #142 [#173] as moot, as the Court did not consider the sur-reply, which was filed without leave of Court, in reaching the conclusions stated herein.

D. Defendants’ Motion to Exclude the Testimony of Dr. Stephen Earle [#152]
Dr. Stephen Earle is Plaintiff’s treating orthopedic surgeon and has been designated as a non-retained expert. Defendants ask the Court to limit Dr. Earle’s testimony to issues related to his treatment of Plaintiff and to prohibit him from issuing any opinions regarding materials he reviewed outside of that treatment. Defendants allege that Dr. Earle’s deposition testimony included testimony on medical care Plaintiff received before the accident at issue and which were not related to his treatment of Plaintiff. Defendants further allege that after Dr. Earle’s deposition, Plaintiff produced additional records from Dr. Earle that were not previously disclosed, including email correspondence between Dr. Earle and Plaintiff’s counsel that suggest Dr. Earle is functioning more like a retained expert, subject to the control of Plaintiff’s counsel. In other past motions before the Court, Defendants have argued that Dr. Earle should be subjected to the disclosure requirements governing retained experts because he is functioning as such. Part of Defendants’ motion to exclude the testimony of Dr. Earle is based on the argument that he should have produced the report and testimony history required of retained experts under Federal Rule of Civil Procedure 26(a)(2)(B). The Court will deny Defendants’ motion.

*6 As a preliminary matter, Plaintiff confirmed at the Court’s hearing that Dr. Earle is a non-retained expert and has been designated to testify only in his capacity as Plaintiff’s treating orthopedist. The disclosure requirements governing non-retained experts, not retained experts, apply to Dr. Earle’s designation. See Fed. R. Civ. P. 26(a)(2)(C). The Court will not exclude Dr. Earle from testifying in this case due to any allegation of his improper designation.

Insofar as Defendants seek to have Dr. Earle’s testimony limited to his opinions only on matters strictly concerning his treatment relationship with Plaintiff, the Court finds that these issues and arguments are better addressed through a motion in limine or contemporaneous objection at trial. The only topic identified in Defendants’ motion that allegedly exceeds the scope of the treatment relationship are Dr. Earle’s testimony regarding a prior cervical injury of Plaintiff and treatment from other providers, based on his review of medical records of Plaintiff that he reviewed prior to his deposition but had not been aware of at the time that he treated and diagnosed Plaintiff. The Court will not preemptively exclude all testimony regarding the possible contributions of preexisting medical issues to Plaintiff’s injuries treated by Dr. Earle. Dr. Earle is qualified, as Plaintiff’s treating physician, to testify that in his professional opinion the injuries presented by Plaintiff are indicative of or consistent with injuries suffered by those experiencing the impact of a rear-end collision. He is likely also qualified to testify about whether and how preexisting medical issues that were undisclosed to him at the time of his initial diagnosis of Plaintiff would affect his diagnosis or opinion on the cause of Plaintiff’s symptoms. Defendants may raise their objections to such testimony at trial if the proper foundation has not been laid for the opinions.

Finally, the Court will also reject Defendants’ argument that Dr. Earle should not be permitted to offer any testimony regarding the cause of Plaintiff’s alleged injuries because these opinions are not reliable. Defendants argue Dr. Earle’s medical causation testimony is unreliable because he was unaware of numerous pieces of relevant information prior to rendering his opinions, such as prior injuries of Plaintiff. These objections are appropriate fodder for cross examination, not exclusion. Dr. Earle, as Plaintiff’s treating orthopedic surgeon, may rely on his medical training and treatment of Plaintiff to opine on the causation of his injuries.

In accordance with the foregoing,

IT IS HEREBY ORDERED that Deponent, Stephen E. Earle, M.D.’s Second Amended Objections to and Motion to Modify the Subpoena Duces Tecum attached to Defendant Dhaliwal Bros Carrier, Inc.’s Cross Notice of Deposition [#134] is DISMISSED AS MOOT.

IT IS FURTHER ORDERED that Defendants Brothers Xpress, Inc., Harpreet Singh and Charanjit Singh’s Motion to Strike Plaintiff’s Sur-Reply to Defendants’ Reply to Plaintiff’s Response to Defendants’ Opposed Motion to Limit the Testimony of Plaintiff’s Testifying Expert Witness, Jon Paul Dillard [#173] is DISMISSED AS MOOT.

IT IS FURTHER ORDERED that Defendants’ Opposed Motion to Strike Trooper Caleb Steel as a Testifying Expert Witness [#136] is DENIED.

IT IS FURTHER ORDERED that Defendants’ Opposed Motion to Limit the Testimony of Plaintiff’s Testifying Expert Witness, Jon Paul Dillard [#142] is GRANTED as set forth in this opinion.

*7 IT IS FURTHER ORDERED that Defendant’s Opposed Motion to Limit the Testimony of Plaintiff’s Testifying Expert Witness, Jon Paul Dillard [#143] is GRANTED as set forth in this opinion.

IT IS FINALLY ORDERED that Defendants’ Opposed Motion to Exclude the Testimony of Plaintiff’s Expert Witness Stephen Earle, M.D. [#152] is DENIED.

SIGNED this 10th day of December, 2020.

All Citations
Slip Copy, 2020 WL 7319550

2020 WL 7258061

SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.
Court of Appeals of Texas, Dallas.
JIMMY ROACH AND ESTES EXPRESS LINES, Appellants
v.
KIMBERLY JACKSON, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF ERICA WOMACK; CAROLYN JOHNSON-HARRIS, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF DANIEL ELLISON AND MINORS D.R.E., M.O., J.O., AND K.E.; BRYCE GUSMAN, CHARLES SULTON, AND GARY ELLISON, Appellees
No. 05-20-00762-CV
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Opinion Filed December 10, 2020
On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-20-01683
Before Justices Whitehill, Osborne, and Carlyle
Opinion by Justice Osborne

MEMORANDUM OPINION
LESLIE OSBORNE JUSTICE
*1 AFFIRMED and Opinion Filed December 10, 2020

In this accelerated interlocutory appeal, Jimmy Roach and Estes Express Lines appeal the trial court’s orders denying their motions to transfer venue from Dallas County to Tarrant County. In four issues, Roach and Estes contend the trial court erred by denying the motions. Because appellees presented prima facie proof that venue is maintainable in Dallas County, we affirm the trial court’s orders.

BACKGROUND
Estes is a transportation company. Its corporate headquarters is in Richmond, Virginia. Estes has sixteen shipping terminals in Texas, two of which are located in Dallas County. At all times relevant to this lawsuit, Roach has resided in Tarrant County and has been employed by Estes.

Roach was driving a tractor-trailer in the course and scope of his employment with Estes on January 3, 2019. His trip began at one of Estes’s Dallas terminals, although the parties disagree whether Roach’s actual “dispatch” for the trip occurred in Dallas or in Richmond. On an icy overpass on Interstate 35 in Murray County, Oklahoma, Roach collided with a Mitsubishi Galant driven by Zacchaeus Hodges in which Erica Womack, Daniel Ellison, Bryce Gusman, and Charles Sulton were passengers. Womack and Ellison died; Guzman and Sulton were injured.

Kimberly Jackson, individually and in her capacity as representative of Womack’s estate, sued Roach and Estes in Dallas County for negligence. In her operative petition,1 Jackson alleged that venue was proper in Dallas County under civil practice and remedies code section 15.002 because “Defendant Estes Express Lines has a principal office in Dallas County” on Singleton Boulevard in Dallas.

Several parties then intervened. Carolyn Johnson-Harris, individually and as representative of Daniel Ellison’s estate,2 Gusman, and Sulton (together, the “Harris Intervenors”) filed their petition in intervention on February 13, 2020. Like Jackson, the Harris Intervenors alleged that venue was proper in Dallas County because Estes “has a principal office in Dallas County.”

Estes3 then filed an answer to each petition and motions to transfer venue of Jackson’s and the Harris Intervenors’ lawsuits. In its motions, Estes alleged that venue was improper in Dallas County and requested transfer to Tarrant County, where Roach resides. Specifically, Estes denied that its principal office was in Dallas County, claiming that it has no “principal office” in Texas because all of the decision makers for the organization are in Richmond, Virginia.

*2 The trial court heard the motions to transfer venue and denied them on June 24, 2020. Estes, however, was not aware of the order until August 4, 2020.4 In the interim, Gary Ellison5 intervened in the lawsuit on July 14, 2020, and filed his first amended petition in intervention on August 4, 2020. In his operative petition, Ellison alleged that venue was proper in Dallas County because Estes has a principal office in Dallas County “and because all or a substantial part of the events or omissions giving rise to the claims against Estes Express Line[s] occurred in Dallas County, Texas.”

Estes filed a motion to transfer venue of Ellison’s claims, again contending that Estes has no principal office in Dallas County or in Texas. In response to Ellison’s allegation that a substantial part of the events or omissions giving rise to his claims occurred in Dallas County, Estes argued that “Roach was not qualified or dispatched from Dallas County, nor was he wholly trained and supervised there.” Estes also argued that “these allegations only create a mere tangential connection to Dallas County; the statute requires a ‘substantial part,’ ” and added that in any event, “these allegations are inaccurate.” The trial court heard Estes’s motion on August 14, 2020, and denied it in an order dated the same day. This appeal followed.

ISSUES
Roach and Estes contend the trial court erred by denying their motions to transfer venue because (1) Estes does not have a principal office in Dallas County, (2) Ellison did not establish that a substantial part of the events or omissions giving rise to his claims arose in Dallas County, (3) appellees who did not establish venue did not show an essential need to have their case tried in Dallas County, and (4) Roach and Estes established proper venue in Tarrant County.

DISCUSSION

1. Applicable law and standard of review
Civil practice and remedies code section 15.002 provides that venue is proper:
(1) in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred;
(2) in the county of defendant’s residence at the time the cause of action accrued if defendant is a natural person;
(3) in the county of the defendant’s principal office in this state, if the defendant is not a natural person; or
(4) if Subdivisions (1), (2), and (3) do not apply, in the county in which the plaintiff resided at the time of the accrual of the cause of action.
TEX. CIV. PRAC. & REM. CODE § 15.002(a)(1)–(4).

Jackson, the Harris Intervenors, and Ellison allege that venue is proper in Dallas County because Estes has a principal office in Dallas County. See id. § 15.002(a)(3). “Principal office” is defined as “a principal office of the corporation, unincorporated association, or partnership in this state in which the decision makers for the organization within this state conduct the daily affairs of the organization. The mere presence of an agency or representative does not establish a principal office.” Id. § 15.001(a). As we explained in Ford Motor Co. v. Johnson, 473 S.W.3d 925 (Tex. App.—Dallas 2015, pet. denied):
A corporation may have more than one principal office in this state. [In re Missouri Pac. R. Co., 998 S.W.2d 212, 217 (Tex. 1999)]. However, even though “a principal office” suggests there can be more than one office, the term “principal” indicates some sort of primacy. Id. To establish venue based on a principal office, plaintiffs must show the employees in the county where the lawsuit was filed (1) are “decision makers” for the company, and (2) have “substantially equal responsibility and authority” relative to other company officials within the state. See id. at 217, 220. “Decision makers” who conduct the daily affairs are different kinds of officials than agents or representatives, and “daily affairs” does not mean relatively common, low-level management decisions. Id. at 217.
*3 Id. at 928–29. Estes, on the other hand, maintains there is no Texas county where venue is proper because it has no principal office in this state, and therefore seeks transfer to Tarrant County, where Roach resides.

The parties bear shifting burdens of proof when a defendant challenges venue. Generally, the plaintiff chooses the venue of the case, and the plaintiff’s choice of venue cannot be disturbed if the suit is initially filed in a county of proper venue. Id. at 928; Union Pac. R. Co. v. Stouffer, 420 S.W.3d 233, 239 (Tex. App.—Dallas 2013, pet. dism’d). “Once the defendant specifically challenges the plaintiff’s choice of venue, the plaintiff has the burden to present prima facie proof that venue is proper in the county of suit.” Ford Motor Co., 473 S.W.3d at 928.

A plaintiff satisfies this burden by properly pleading the venue facts and supporting them with an affidavit and “duly proved attachments” that “fully and specifically set[ ] forth the facts supporting such pleading.” Id. (quoting TEX. R. CIV. P. 87.3(a)). “This prima facie proof is not subject to rebuttal, cross-examination, impeachment, or disproof.” Id.; see also Galindo v. Garner, No. 05-19-00061-CV, 2019 WL 2098689, at *3 (Tex. App.—Dallas May 14, 2019, no pet.) (mem. op.) (“ ‘if the plaintiff offers prima facie proof through pleadings and affidavits that venue is proper, the inquiry is over’ ”) (quoting Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 602 (Tex. 1999)). “But, if the plaintiff fails to discharge its burden, the right to choose a proper venue passes to the defendant, who must then prove that venue is proper in the defendant’s chosen county.” Ford Motor Co., 473 S.W.3d at 928.

When there are multiple plaintiffs (including intervening plaintiffs), each must independently establish proper venue. Civil practice and remedies code section 15.003(a) provides that “[i]n a suit in which there is more than one plaintiff, whether the plaintiffs are included … by intervention, … or otherwise, each plaintiff must, independently of every other plaintiff, establish proper venue.” TEX. CIV. PRAC. & REM. CODE § 15.003(a). A trial court’s ruling that venue is proper in a particular county for all plaintiffs is “a determination that every plaintiff ‘independently establish[ed] proper venue’ within the meaning of section 15.003(b)(1).” Union Pac. R. Co., 420 S.W.3d at 237.

In an interlocutory appeal of a trial court’s ruling under section 15.003, the appellate court must “determine whether the trial court’s order is proper based on an independent determination from the record and not under either an abuse of discretion or substantial evidence standard.” TEX. CIV. PRAC. & REM. CODE § 15.003(c)(1). Accordingly, our review is de novo. Galindo, 2019 WL 2098689, at *3. In conducting this review, we must consider the entire record, including any evidence presented at the hearing. Id.

2. Pleadings and evidence
Because each plaintiff and intervenor “must, independently of every other plaintiff, establish proper venue,” TEX. CIV. PRAC. & REM. CODE § 15.003(a), we first consider the pleadings and evidence each plaintiff and intervenor filed for the trial court’s consideration at the June 24 and August 14, 2020 hearings. See TEX. R. CIV. P. 87.3(b) (trial court shall determine motion to transfer venue “on the basis of the pleadings, any stipulations … and such affidavits and attachments as may be filed by the parties”).

a. Plaintiff Jackson
*4 Jackson filed suit on January 29, 2020, alleging that Roach’s and Estes’s negligence caused the collision and Womack’s wrongful death. Jackson also alleged that Estes negligently hired, retained, and trained Roach, negligently entrusted its vehicle to Roach, was “liable under the doctrine of Respondeat Superior,” and was grossly negligent.

Estes filed a motion to transfer venue of Jackson’s claims on March 9, 2020, and an amended motion on April 29, 2020. Estes attached the April 29, 2020 affidavit of Janice Beacham, Estes’s Director of Risk Management, and Roach’s April 23, 2020 affidavit stating that on the date of the accident he resided in Tarrant County.

Jackson timely filed a response and a first amended petition on May 22, 2020. In support of her response, Jackson filed excerpts from the deposition of Larry Sanderson, who testified as Estes’s corporate representative. In reply on June 18, 2020, Estes filed the entire transcript of Sanderson’s deposition and a duplicate copy of Roach’s April 23, 2020 affidavit. The trial court heard and ruled on this motion on June 24, 2020.

b. The Harris Intervenors
The Harris Intervenors—Johnson-Harris, Gusman, and Sulton—filed their original petition in intervention on February 13, 2020. They alleged claims for negligence against Roach, and negligent entrustment, respondeat superior, “negligent hiring, supervision, training, and/or retention” of Roach, and gross negligence against Estes.

Estes’s March 9, 2020 motion did not address the Harris Intervenors’ claims; instead, Estes filed a separate motion to transfer venue of the Harris Intervenors’ claims on April 29, 2020. The motion’s substance and attachments, however, were identical to the motion to transfer Jackson’s claims filed on the same day. Estes also filed a June 18, 2020 reply, including the deposition and affidavit described above, in support of both of its April 29, 2020 motions.

On the date of the hearing, the Harris Intervenors filed a “Joinder to Plaintiff’s Response to Motion to Transfer Venue.” In the same pleading, they objected to Estes’s reply on the grounds that it was filed too late and included new, untimely arguments. The Harris Intervenors also contended that (1) they were not required to file a response to the motion to transfer, citing rule of civil procedure 86(4), and (2) their petition established the four elements of proper venue under civil practice and remedies code section 15.003(a). The reporter’s record reflects that these matters were brought to the trial court’s attention at the June 24, 2020 hearing, and the trial court’s June 24 order denying Estes’s motion to transfer venue reflects that the court “considered the motion [to transfer venue], and Affidavit presented by Defendants, along with Plaintiff’s Answer and evidence provided therewith, the response, the reply and the intervenors’ objection and response to Defendants’ Reply.”

c. Intervenor Ellison
Ellison filed his original petition in intervention on July 14, 2020. In it, he alleged that venue was proper in Dallas County because Estes has principal offices there and because “all or a substantial part of the events or omissions giving rise to the claims against Estes” occurred in Dallas County. In addition to facts about the collision, Ellison alleged:
On Thursday, January 3, 2019, Defendant Estes Express Lines dispatched Defendant Jimmy Roach out of its terminal in Dallas, Texas. Estes Express Lines’ Dallas, Texas terminal was Defendant Jimmy Roach’s home terminal at the time of the incident in question. Accordingly, not only is Dallas, Texas the origin of the trip taken on January 3, 2018 [sic], but it is the location where the qualification, training and supervision of Mr. Roach occurred as well as where the maintenance of the vehicle he was driving would occur. Additionally, Estes Express Lines’ Dallas, Texas terminal is responsible for dispatching and determining the route to be driven and by Mr. Roach on the date in question.

*5 Estes filed a motion to transfer venue of Ellison’s claims on July 22, 2020. In support, Estes attached Beacham’s April 29, 2020 affidavit, a second affidavit by Beacham dated July 7, 2020, and Roach’s April 23, 2020 affidavit. Ellison filed an amended petition in intervention on August 4 and a response to the motion to transfer venue the following day, relying on and attaching excerpts from Sanderson’s deposition. Estes filed its reply on August 10, also relying on and attaching excerpts from Sanderson’s deposition. The trial court heard the motion on August 14, 2020. The same day, the trial court signed an order denying Estes’s motion to transfer venue of Ellison’s claims, citing both grounds alleged by Ellison.

3. Proper venue
Estes maintains it has no “principal office” in Texas, so plaintiffs and intervenors cannot rely on a location of its “principal office” to establish venue. Instead, Estes seeks transfer to Tarrant County, where Roach resides.

Estes argues that all of its “decision makers” are in its corporate headquarters in Virginia. See TEX. CIV. PRAC. & REM. CODE § 15.001(a) (defining “principal office” as one “in which the decision makers for the organization within this state” conduct its “daily affairs”). Estes contends that “[e]ven the top Estes employees in Dallas simply lack the authority or discretion to be ‘decision makers’ and instead perform only routine, lower-level tasks that cannot fairly be categorized as the company’s ‘daily affairs.’ ”

In an affidavit supporting Estes’s motions to transfer venue, Estes’s Director of Risk Management Janice Beacham stated that:
• Estes’s principal place of business and corporate headquarters are in Virginia;
• Estes did not have a principal office in Dallas County, Texas on the date of the accident, and does not have one currently;
• All of Estes’s “lead decision makers” are located at the corporate headquarters in Virginia;
• Estes has no corporate decision-making employees in Texas;
• Estes’s Texas operations are conducted from sixteen terminals throughout the state, each with “a supervisor, managers, drivers, dockworkers, dispatchers,” and some with maintenance employees;
• Terminal employees “handle low-level management decisions, but otherwise report to regional management” in Virginia who have responsibility “for oversight, overall daily direction, and decision making on behalf of the company, and for each of the Texas and other Estes terminals located throughout the nation,” and
• “Shop managers” at Estes’s terminal location on Singleton Boulevard in Dallas are “low-level management” without “capacity to make decisions for Estes.”
In addition to Beacham’s affidavit, Estes attached an Estes “Shop Manager” job description to its motions, but did not explain whether a “Shop Manager” was the highest-ranking official at Estes’s Dallas terminal or identify any particular Estes employee holding that title.6

*6 In response, all of the plaintiffs and intervenors relied on the deposition testimony of Estes’s District Operations Manager Larry Sanderson, whose office is located in Estes’s Singleton Boulevard terminal in Dallas County. Estes designated Sanderson as its corporate representative for the deposition. Sanderson testified about Estes’s corporate structure. The principal office of the corporation is in Richmond, Virginia. There are six regions within the company. Texas is in the Southwest region. There are two districts within each region, for a total of twelve districts. Texas, Oklahoma, and New Mexico are in the seventh district, and Sanderson is the operations manager for that district. Within each district are the terminals that Beacham described in her affidavit.

Sanderson testified that he is the second-highest-ranking Estes employee in Texas. As District Operations Manager, he “direct[s] terminals within the state[s] of Texas, Oklahoma, and New Mexico,” including directing “the managers and activities” within “various terminals in this district.” Sanderson testified, however, that he supervises all of the Texas terminal managers “at the direction of” Estes’s corporate office in Virginia and in accordance with its “guidelines.” He agreed that “day to day,” he was “the go-to person in Texas” for the terminal managers “in figuring out daily operational issues.” Sanderson supervises Estes’s activities in a three-state region including “discussing the number of local drivers that we’re using on a daily basis to pick up and deliver freight” in the region, “controlling cost,” and “matching drivers to the workload” in the three states. We conclude that these supervisory activities are different from the “low-level management decisions” Beacham described in her affidavit that are made by each terminal’s “shop manager” or supervisor, such as ensuring that payroll for the terminal’s employees is correct and on time, maintaining the safety and reliability of equipment, implementing training programs, enforcing compliance with company standards, managing shop operations, and similar responsibilities.

Sanderson testified that R.J. Collins, a regional vice president, also offices at the Singleton Boulevard terminal in Dallas and is the highest-ranking Estes employee in Texas. Sanderson explained that Collins “directs the district operations managers” and makes decisions for Estes on a day-to-day basis according to guidelines “given to him by the corporate office” in Virginia. Collins also coordinates and directs Estes’s activities within Texas “[a]t the direction of the corporate office” in Virginia. Sanderson explained that his and Collins’s duties are similar: “Meeting—meeting goals…. We have goals of efficiency and productivity and things of that sort, matching, you know, people to workload, and those goals are given to us by our corporate office, and it’s follow up to those things.” But Sanderson conceded that “there’s not anyone with more authority or more discretion than you [i.e., Sanderson]” or Collins in Texas to make decisions “as it relates to the management of the terminal managers” in the region.

Horace Boston, a regional human relations manager, offices in Dallas with Sanderson and Collins. Boston is the “highest-ranking Estes HR person within the state of Texas,” although he reports to Estes’s HR department at its corporate office in Virginia.

Sanderson agreed that all of Estes’s Texas terminals “have equal footing as it relates to their terminal.” But he acknowledged that the Dallas terminal had the most decision-making personnel—three district or regional managers—of any Texas terminal:
Q. Are you aware of any other Texas terminal that has more than three district or regional managers that are making decisions on behalf of Estes in the state of Texas?
*7 A. No.
Q. Okay. So as far as high-ranking, or higher-ranking, Estes personnel that are decision-making folks within the state of Texas, Dallas has the most of those?
[objection omitted]
A. Yes.

Estes emphasizes that no one in the Dallas office has authority to enter into contracts with a third party on Estes’s behalf. Estes argues that even if the presence of an agent or representative in Dallas County were sufficient to establish a principal office—a contention expressly rejected in the statutory definition—Estes has no such agent or representative in Dallas. See TEX. CIV. PRAC. & REM. CODE § 15.001(a) (“The mere presence of an agency or representative does not establish a principal office.”). To support its argument, Estes relies in part on cases interpreting now-repealed section 15.037 of the civil practice and remedies code,7 which permitted plaintiffs to sue an out-of-state corporation doing business “in any county in which the company may have an agency or representative.” See Ford Motor Co. v. Miles, 967 S.W.2d 377, 380–81 (Tex. 1998) (discussing former § 15.037); cf. TEX. CIV. PRAC. & REM. CODE § 15.001(a).

The current statutory language, however, was discussed and interpreted by the supreme court in In re Missouri Pacific Railroad Co. and by this Court in Ford Motor Co. and Union Pacific Railroad Co., and these authorities control our analysis. In re Missouri Pacific R.R. Co. establishes two pivotal prongs in the principal office venue analysis:

One, a principal office must have a sufficiently high level employee running the entity’s daily business. That person need not be a C-suite person but must be higher than a low-level manager who makes only routine, non-policy decisions. In re Missouri Pac. R.R. Co., 998 S.W.2d at 217, 220–21. For example, a local foreman is not sufficient. Id. at 217 (citing Ruiz v. Conoco, Inc., 868 S.W.2d 752, 759 (Tex. 1993)). Further, that person must have more authority than the ill-defined “broad power and discretion to act for the corporation” that agents and representatives possess. See id. Yet, a regional manager who coordinates operational activities, like those involved in this case, is sufficient for this prong. See id. at 221.

Two, a principal office cannot be clearly subordinate to and controlled by another Texas office. Id.

All a plaintiff must show to maintain venue is a prima facie case on both prongs. See id. at 216.

This passage from Mo. Pac. controls this case:
The only official the plaintiffs claim is a “decision maker” in Tarrant County is a division superintendent for the Fort Worth service unit. He testified in his deposition that his duties included coordinating the movement of trains, staffing the crews within the area, and ensuring rules compliance and discipline. The division superintendent also said that the southern region is based in Houston, and his boss is the general manager in Harris County.
*8 This evidence is sufficient to characterize a division superintendent as a decision maker under the statute. However, it fails to establish prima facie that the Tarrant County office is a principal office when compared to the responsibility and authority exercised by company officials elsewhere in Texas.
Id. at 221.

Here, plaintiffs’ evidence meets both prongs:

First, Sanderson and Collins are higher level functionaries that perform duties that Mo. Pac. held were sufficient for decision maker status. Thus, we needn’t address appellants’ argument that a corporation might have offices in Texas and yet no principal office for venue purposes.

Second, plaintiffs’ evidence shows that no other Texas office has higher level management authority than or control over the Dallas office.

Accordingly, for venue purposes Estes has a principal office in Dallas County, and the trial court correctly denied appellants’ venue transfer motions.

Given our conclusion that appellees established proper venue under civil practice and remedies code section 15.002(a)(3), we need not consider appellants’ remaining issues asserting that venue was not proper under sections 15.002(a)(1) or 15.003(a)(3), or that venue should be transferred to Tarrant County, where Roach resides.

CONCLUSION
We affirm the trial court’s orders denying Estes’s and Roach’s motions to transfer venue.

All Citations
Not Reported in S.W. Rptr., 2020 WL 7258061

Footnotes

1
Jackson filed suit on January 29, 2020, and filed her first amended petition on May 22, 2020. Her second amended petition, filed on June 26, 2020, was not on file at the time of the trial court’s hearing and ruling (both on June 24, 2020) on Roach’s and Estes’s motion to transfer venue addressing Jackson’s claims.

2
Ellison’s estate includes minors D.R.E., M.O., J.O., and K.E.

3
Roach joined in Estes’s motions and responses. We include him in our references to “Estes.”

4
Contending it did not receive timely notice of the trial court’s order, Estes filed a motion under civil procedure rule 306a to extend the time for filing its notice of appeal. The trial court granted the motion, ruling that Estes did not receive notice of the June 24, 2020, order until August 4, 2020, thus extending the time period for filing a notice of appeal. See TEX. R. CIV. P. 306a(4).

5
Further references to “Ellison” are to Gary Ellison, not to Daniel Ellison’s estate.

6
Beacham’s second affidavit, filed in support of Estes’s motion to transfer venue of Ellison’s claims, was directed to Ellison’s allegation that a substantial part of the events or omissions giving rise to his claim occurred in Dallas County. Beacham stated that (1) Roach received his dispatch for his route on the date of the accident directly from Richmond, Virginia, not Dallas, (2) Estes’s human resources department located in Richmond “handles all the initial intake on potential hires for Estes throughout the entire United States,” and the only person in Texas with authority to approve the final hiring decision is Michael Lopez in San Antonio, (3) all employee training material is developed in Richmond, and personnel in Richmond determine the specific training for all Estes employees, and (4) Roach’s direct supervisor, Joe Cassis, supervised Roach “by and through the direction and instruction he received from employees in Richmond, Virginia.”

7
Act of June 3, 1987, 70th Leg., 1st C.S., ch. 4, § 1, 1987 TEX. GEN. LAWS 52, 53, formerly codified at TEX. CIV. PRAC. & REM. CODE § 15.037, repealed by Act of May 8, 1995, 74th Leg. R.S., ch. 138, § 10, 1995 TEX. GEN. LAWS 978, 981.