United States District Court,

M.D. Pennsylvania.

James BURKE and Victoria Burke, Plaintiffs,

v.

TRANSAM TRUCKING, INC. and Gregory Wirfel, Defendants,

v.

Rinehimer Bus Lines, Inc. and Nick Paolello.

Civil Action No. 03:06-CV-2090.

 

May 21, 2009.

 

MEMORANDUM

 

RICHARD P. CONABOY, District Judge.

 

Here the Court considers “Defendants’ Motion in Limine, or Alternatively, Request for a Daubert Hearing to Preclude the Testimony of Mariusz Ziejewski” (Doc. 119). Defendants argue Dr. Ziejewski’s opinions exceed the scope of his expertise, lack a reliable factual foundation, and lack scientific reliability. Because of this, Defendants move to preclude him from offering into evidence any testimony, reports or opinions at trial.

 

This matter was fully briefed by the parties’ and the Court heard testimony and additional argument at a Daubert hearing on May 19, 2009, where the parties examined Dr. Ziejewski and made additional argument. This matter is therefore ripe for disposition. For the reasons discussed below, this motion is denied.

 

I. BACKGROUND

 

A. Factual Background

 

This case arises from a vehicle accident involving the commercial tractor trailer driven by Gregory Wirfel (“Defendant Wirfel”) and the 2000 Ford Ranger pickup truck driven by James Burke (“Plaintiffs”). At all times relative to this accident, Defendant Wirfel was employed by TransAm Trucking, Inc. (“Defendant “TransAm”). Plaintiffs allege Defendant Wirfel and Defendant TransAm (collectively referred to as “Defendants”) are liable to them for damages resulting from the accident.

 

Although only Mr. Burke was involved in the underlying accident, this suit is brought on behalf of James and Victoria Burke (husband and wife). Thus, we will refer to Mr. and Mrs. Burke as “Plaintiffs” in this Order.

 

Plaintiffs obtained the services of Dr. Ziejewski, a biomechanic, in order to determine if the forces exerted on Plaintiff in this accident were sufficient to cause injuries. (Doc. 119-3). Dr. Ziejewski reviewed the following materials prior to forming the opinions and conclusions expressed in the report: (1) police report; (2) complaint; (3) witness statement of Jeff Jennings; (4) witness statement of Richard Henry; (5) PA EMS report; (6) medical records from Geisinger Medical Center; (7) medical records of Dr. Terrence Duffy; (8) medical records of Dr. Mark Racziewicz; (9) medical records of Valley Open MRI; (10) deposition of Nick Paolello; (13) IME report of Dr. John Della Rosa; (14) deposition and exhibits of Officer Thomas Szoke; and (15) photographs.(Id.)

 

Dr. Ziejewski also obtained the vehicle parameters for a 2000 Ford Ranger (Plaintiff’s vehicle) and a 2005 Freightliner (Defendants’ Tractor Trailer); obtained and measured an exemplar 2000 Ford Ranger; performed laboratory compression testing; performed vehicle dynamics analysis; utilized Armstrong Laboratory/Wright-Patterson Air Force Base (AL/WPAFB) computer program to analyze this data; determined the geometric and mass properties of Plaintiff’s body segments and joint locations and range of motion characteristics using the Generator of Body Data (GEBOD) AL/WPAFB computer program and performed dynamic analysis for the collision using this program. (Id.)

 

After conducting his analysis and testing, and reviewing numerous articles and studies, Dr. Ziejewski came to the following conclusions “within a reasonable degree of biomechanical engineering certainty:”

 

(1) the forces on James Burke’s head resulting from the collision on April 10, 2006 were sufficient to cause a brain injury;

 

(2) the forces on James Burke’s cervical region resulting from the collision on April 10, 2006 were sufficient to cause a cervical region injury;

 

(3) the results from the biomechanical analysis of the collision on April 10, 2006 involving James Burke are consistent with the medical opinions and findings indicating a brain injury; and

 

(4) the results from the biomechanical analysis of the collision on April 10, 2006 involving James Burke are consistent with the medical opinions and findings indicating a cervical region injury.

 

(Id.)

 

B. Procedural Background

 

On February 27, 2009, Defendants filed the present motion in limine (Doc. 119), with supportive brief (Doc. 120), seeking to preclude Dr. Ziejewski’s testimony on the grounds that Dr. Ziejewski is not qualified to give a medical opinion and on the grounds that his methodology was improper. Plaintiffs’ response (Doc. 159) and opposition brief (Doc. 160) were filed on March 13, 2009. Defendants filed their reply brief (Doc. 193) on March 26, 2009. By Order on April 2, 2009, the Court scheduled a Daubert hearing, which was held on May 19, 2009.

 

II. DISCUSSION

 

Here Defendants move to preclude Dr. Ziejewski from offering into evidence any testimony, reports or opinions at trial because his opinions exceed the scope of his expertise, lack a reliable factual foundation, and lack scientific reliability. (Doc. 119).

 

 

The admissibility of “expert” testimony is a question of law governed by Rule 702 of the Federal Rules of Evidence and the United States Supreme Court’s Decision in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).Rule 702 provides:

 

If a scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, 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.

 

Fed.R.Evid. 702. The Third Circuit has established that Rule 702, as interpreted by Daubert, 509 U.S. 579 (1993), and its progeny includes “three distinct substantive restrictions on the admission of expert testimony: qualifications, reliability and fit.” United States v. Mathis, 264 F.3d 321, 335 (3d Cir.2001); Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir.2000). The proponent of the expert testimony bears the burden of establishing the reliability and admissibility of the expert’s testimony by a preponderance of the evidence. See Daubert, 509 U.S. at 593 n. 10; In re TMI Litig., 193 F.3d 613, 663 (3d Cir.1999).Rule 702 embodies a liberal policy of admissibility. Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir.2008); In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 857 (3d Cir.1990).

 

First, the proffered witness must be a qualified expert, meaning that the witness must possess specialized expertise. Feit v. Great-West Life & Annunity Ins. Co., 460 F.Supp.2d 632, 636 (D.N .J.2006). Courts have interpreted this requirement liberally, holding that a broad range of knowledge, skills, and training qualify an expert. In re TMI Litig., 193 F.3d at 664.

 

Second, the testimony must be reliable. This requirement has been interpreted to mean that an “expert’s opinion must be based on the ‘methods and procedures’ rather than on ‘subjective belief or unsupported speculation’; the expert must have ‘good grounds’ for his or her belief.”Id. (citing In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 742 (3d Cir.1994), cert. denied, 513 U.S. 1190 (1995)). The focus is not upon the expert’s conclusions, but rather upon his methodology; the issue is whether the evidence should be excluded because the flaw is large enough that the expert lacks good grounds for his or her conclusion. In re Paoli R.R Yard PCB Litigation, 35 F.3d at 746. Furthermore, an “expert’s testimony must be accompanied by a sufficient factual foundation before it can be submitted to the jury.” Elcock v. Kmart Corp., 233 F.3d 734, 754 (3d Cir.2000)(citing Gumbs v. International Harvester, Inc., 718 F.2d 88, 93 (3d Cir.1983)).

 

Under Daubert, the factors that a district court should take into account in evaluating whether a particular scientific methodology is reliable, so that expert testimony based on methodology is admissible, include:

 

(1) whether a method consists of a testable hypothesis;

 

(2) whether a method has been subject to peer review;

 

(3) known or potential rate of error;

 

(4) existence and maintenance of standards controlling technique’s operation;

 

(5) whether a method is generally accepted;

 

(6) relationship of technique to methods which have been established to be reliable;

 

(7) qualifications of expert witness testifying based on methodology; and

 

(8) non-judicial use to which method has been put; however, list is non-exclusive, and each factor need not be applied in every case.

 

F.R.E. 702; Elcock v. Kmart Corp., 223 F.3d 734 (3d Cir.2000). This list is “non-exclusive,” and “each factor need not be applied in every case.” Elcock, 233 F.3d at 746(citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999)).

 

Third, the expert’s testimony must “fit,” meaning that the testimony “ ‘must be relevant for the purposes of the case and must assist the trier of fact.’ “ Calhoun v. Yamaha Motor Corp., U.S.A ., 350 F.3d 316, 321 (3d Cir.2003)(quoting Schneider v. Fried, 320 F.3d 396, 405 (3d Cir.2003)). The “ultimate touchstone” in evaluating admissibility under Rule 702, is “helpfulness to the trier of fact.” Id. at 746.An expert who renders an opinion based on factual assumptions not present in the case “cannot be said to ‘assist the trier of fact,’ as rule 702 requires.” Elcock, 233 F.3d at 756 n. 13. Consequently, “[t]his type of an opinion misleads the fact-finder and arguably does not comply with the ‘fit requirement[.]” Id

 

When faced with a proffer of expert testimony, the Federal Rules of Evidence “assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597;see alsoFed.R.Evid. 104(a).“By means of a so-called ‘Daubert hearing,’ the district court acts as a gatekeeper, preventing opinion testimony that does not meet the requirements of qualification, reliability and fit from reaching the jury.”Schneider v. Fried, 320 F.3d 396, 404 (3d Cir.2003).

 

Here Defendants argue Dr. Ziejewski is unqualified to testify as an expert in specific causation of medical injuries. (Doc. 120 at 5 .) While Defendant recognizes a biomechanic is qualified to offer testimony regarding the forces generated by certain accidents and the likely effects of such forces on the human body, Defendants contend many federal courts have held that a biomechanic is not qualified to offer an opinion on whether or not the accident at issue could have caused the Plaintiff’s injuries. (Id. at 6 (citing Morgan v. Girgis, 07 CV 1960, p. 6 (S.D.N.Y. May 16, 2008) (citations omitted)).) Defendants argue Dr. Ziejewski himself was precluded and not allowed to give medical testimony in a case with respect to what happens mechanically to a person involved in a whiplash-type of accident as he had no medical training. Standeford v. Winn Dixie, 688 So.2d 602, 604-05 (La.App.1996).

 

Defendants also argue Dr. Ziejewski’s opinions are based upon unreliable methodology and lack sufficient factual foundation. (Doc. 120 at 8.) Defendants assert the results of Dr. Ziejewski’s laboratory test are unreliable because they were based on an exemplar Ford Ranger rather than the vehicle that was actually involved in the crash, Dr. Ziejweski includes no specific analysis of the damage to the Plaintiff’s vehicle, and the “fit” of the Plaintiff is based on photographs of the Plaintiff sitting in an exemplar Ford Ranger rather than the physical observation of the Plaintiff in the actual Ford Ranger. (Id. at 10-11.)

 

Defendants further argue Dr. Ziejewski’s use of an Articulated Total Body computer simulation is unreliable because he gathered his inputs from crash scene photographs, exemplar vehicles and outright assumptions, that he gives no scientific support for his use of photographs to determine vital input such as delta V, angles of impact, or initial position, and that he does not provide the specific numbers for delta V, angles of impact, duration of impact or initial position. (Id. at 12.)

 

According to Defendants, a review of Dr. Ziejewski’s expert report reveals very detailed explanations of the various methodologies that he used, but no explanation as to how he applied that methodology to the facts of the case to arrive at his conclusions. (Doc. 193 at 3.) “As such, he is essentially connecting his opinion to the data solely by his own assertions that his conclusions are supported by the data.”(Id.) Defendants contend this is not allowed under Daubert and should be precluded. (Id.)

 

In opposition, Plaintiffs argue Dr. Ziejewski is a highly qualified expert in the field of biomechanics and courts in this circuit, as well as across the country, have held that a biomechanical expert may testify as to the forces exerted in an accident and as to whether or not those forces are sufficient to cause the types of injuries suffered in the accident. (Doc. 160 at 8 (citing Dorsett v. American Izuzu Motors, Inc., 805 F.Supp. 1212 (E.D.Pa.1992) (biomechanic qualified to testify as to what kind of injuries he would expect to see in the accident and that injuries were caused by the design and seatbelt involved); Brown v. Old Castle Precast East, 2003 WL 22999302 (E.D.Pa.2003) (biomechanic allowed to testify that the forces involved were above the injury level criteria for causing mechanical injury to the brain; court noted that there is a distinction between mechanical and medical causation); Yarchak v. Trek Bicycle Corp., 208 F.Supp.2d 470 (D.N.J.2002) (biomechanic qualified to testify as to the effect of a bicycle seat design on the male anatomy)).)

 

Plaintiffs further argue there is a nationwide consensus that a biomechanic may testify as to the mechanical causation of an injury. In support, Plaintiffs cite Bowers v. Norfolk Southern Corp., 537 F.Supp.2d 1343, 1377, 2007 WL 2187396, at* 32 (M.D.Ga.2007), where the court addressed this specific issue and found:

 

In the context of litigation, therefore, biomechanical engineers typically are found to be qualified to render an opinion as to the forces generated in particular accident and the general types of injuries those forces may generate. Smelser v. Norfolk S. Ry. Co., 105 F.3d 299, 305 (6th Cir.1997); Combs v. Norfolk & W. Ry. Co., 256 Va. 490 at 497, 507 S.E.2d 355, 359 (1998); Yarchak v. Trek Bicycle Corp., 208 F.Supp.2d 470, 501 (D.N.J.2002) (permitting biomechanical engineer to testify generally about types of injuries that may be caused by a bicycle seat). However, biomechanical engineers ordinarily are not permitted to give opinions about the “precise cause of a specific injury.” Smelser, 105 F.3d at 305;see also Yarchak, 208 F.Supp.2d at 501 (admitting the general causation testimony of a biomechanical engineer and noting that the engineer did “not offer any clinical or medical opinions with respect to the specific medical cause or source of Plaintiff’s [injuries]”). This is because biomechanical engineers lack the medical training necessary to identify the different tolerance levels and preexisting medical conditions of individuals, both of which “could have an effect on what injuries resulted from an accident.” Smelser, 105 F.3d at 305.

 

Id.

 

Plaintiffs also contend that Dr. Ziejewski’s opinions are supported by proper methodology as required by Daubert.(Doc. 160 at 10.) Plaintiffs contend Dr. Ziejewski obtained an exemplar vehicle of the same year, make and model as Plaintiff’s, measured the vehicle, performed laboratory compression testing, performed vehicle dynamic analysis and used photogrammetry to evaluate the damage to Plaintiff’s vehicle. (Id. at 15.)Plaintiffs argue that Defendants do not explain why they contend Dr. Ziejewski’s findings are unreliable because he used an exemplar vehicle and not Plaintiff’s vehicle itself in the measurements. Plaintiffs contend that Defendants failed to show how the use of an undamaged vehicle, as opposed to Plaintiff’s smashed vehicle, would result in a different analysis. (Doc. 160 at 13). Likewise, Plaintiffs contend Defendants do not identify why Dr. Ziejewski’s use of a normal driving position or photographs of Plaintiff in the vehicle are unreliable. (Id.) Plaintiffs note that despite Defendants’ contentions for the need to account for Plaintiff’s individual driving position or any response to the specific situation that would have placed Plaintiff in an atypical driving position, there is no indication that Plaintiff was in anything other than a normal position. Finally, Plaintiffs respond to Defendants’ criticism that Dr. Ziejewski’s report does not set out the specific delta V in this case and argue that Dr. Ziejewski’s analysis found that the force exerted by Plaintiff’s head striking the window was well in excess of the minimum force necessary, and Dr. Ziejewski, throughout his analysis, used the most conservative estimates and even underestimated the potential force of impact.

 

Having considered the arguments from the parties’ briefs, as well as the testimony and arguments heard during the Daubert hearing, the Court denies Defendants’ request to preclude Dr. Ziejewski’s testimony. The Court finds Plaintiffs have met their burden in demonstrating Dr. Ziejewski’s qualifications, and the reliability and fit of his testimony. See Daubert, 509 U.S. at 593 n. 10; Mathis, 264 F.3d at 335.

 

First, the Court finds Dr. Ziejewski is well qualified as a biomechanical expert. Dr. Ziejewski is a professor of mechanical engineering at North Dakota State University, an adjunct professor of neuroscience at the University of North Dakota School of Medicine, and director of the Impact Biomechanical Laboratory and the Automotive Systems Laboratory at North Dakota State University’s College of Engineering. He has specialized knowledge, skill and training in the field of biomechanics and has continually been recognized as a biomechanic expert in many courts throughout the country for the past twenty-five years.

 

Importantly, Defendants do no dispute Dr. Ziejewski’s skill and knowledge in the field of biomechanics. Rather, Defendants argue Dr. Ziejewski’s opinion that the forces Plaintiff sustained in the subject collision were sufficient to cause a brain injury and a cervical region injury amount to a medical opinion, and should therefore be precluded because this goes beyond his expertise as a biomechanic. (Doc. 120 at 6.) Plaintiffs disagree and assert that Dr. Ziejewski’s opinion as to the potential injuries that could be sustained in the subject accident is a biomechanical determination based on established biomechanical parameters, not a medical opinion. In fact, during the hearing, Dr. Ziejewski repeatedly acknowledged that he was not a medical doctor and that he would not attempt to testify as such. Specifically, Dr. Ziejewski noted he would not testify as to the extent of injuries allegedly suffered by Plaintiff from the accident, but would testify that the forces sustained by Plaintiff in the collision were sufficient to cause his injuries.

 

The Court finds Dr. Ziejewski’s purported testimony falls within his expertise and therefore that he is qualified to testify in this case. In conducting his anlaysis, Dr. Ziejewski stayed within this area of expertise and relied on biomechanical parameters in forming his opinions. As a biomechanical engineer, Dr. Ziejewski “is qualified to render an opinion in this case as to general causation, but not as to specific causation.” Bowers, 537 F.Supp.2d at 1377. This means that Dr. Ziejewski may not testify as to the extent of injuries suffered by Plaintiff, which would require the identification and diagnosis of a medical condition, but may testify that the force sustained by Plaintiff in the subject accident could potentially cause certain injuries as this amounts to a biomechanical determination. Id.

 

The Court also finds Dr. Ziejewski meets the reliability requirement of the Daubert analysis. The Court finds Dr. Ziejewski’s opinions were based on “methods and procedures” rather than subjective belief or unsupported speculation and that he had “good grounds” for his beliefs. See In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717, 742 (3d Cir.1994), cert. denied, 513 U.S. 1190 (1995)). Based on Dr. Ziejewski’s testimony at the hearing, the Court finds Dr. Ziejewski’s methodology falls in line with the facts that a district court should take into account in evaluating whether a particular scientific methodology is reliable under Daubert. In particular, the Court finds Dr. Ziejewski’s methodology consisted of testable hypothesis, was subjected to peer review, had a known or potential rate of error, was generally accepted, and the techniques were sufficiently established to be reliable. Dr. Ziejewski sufficiently explained and justified his use of an exemplar 2000 Ford Ranger and how he developed the inputs to be used in his analysis.

 

As the Court noted during the hearing, many of Defendants’ arguments and criticisms of Dr. Ziejewski’s methodology and inputs used went more to the weight of the evidence, rather than to his ability to testify as an expert in this case. Mere weakness in the factual basis of an opinion bears on the weight of the evidence, not its admissibility. McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 801 (6th Cir.2000). Those arguments are more appropriate for the jury. At this point, recognizing that Dr. Ziejewski’s methodology was found to be sufficiently reliable to be admitted at trial does not mean that it should be taken as truth. At trial, Defendants will have the opportunity to demonstrate why Dr. Ziejewski’s conclusions should not be credited or given substantial weight. However, at this stage the Court is satisfied that Plaintiffs have sufficiently met their burden in establishing the reliability of this testimony.

 

Finally, the Court finds Dr. Ziejewski’s testimony “fits” this case because it is “relevant for the purposes of this case” and will “assist the trier of fact.” See Calhoun, 350 F.3d at 321. Here the parties do not dispute that Defendants’ tractor trailer rear-ended Plaintiff’s pick-up truck. Rather, the parties dispute why and how the accident happened, the speed at impact, and whether and to what extent Plaintiff was injured. Certainly evidence regarding the force of the impact and a scientific assessment of the damage and injuries which could result under such force is relevant to the issues of this case. Dr. Ziejewski’s analysis certainly would assist the jury in deciding what happened here and whether the injuries Plaintiff allegedly sustained are consistent with the impact of the crash. Thus, the Court finds Dr. Ziejewski’s testimony sufficiently “fits” this case and will deny Defendants’ motion to preclude Dr. Ziejewski’s testimony at trial.

 

III. CONCLUSION

 

For the reasons discussed above, Defendants’ Motion in Limine to Preclude the Testimony of Dr. Ziejewski (Doc. 119) is denied. An appropriate Order follows.

 

ORDER

 

AND NOW, this 20th day of May 2009, for the reasons discussed in the accompanying Memorandum, “Defendants’ Motion in Limine, or Alternatively, Request for a Daubert Hearing to Preclude the Testimony of Mariusz Ziejewski” (Doc. 119) is DENIED.

Court of Appeals of Texas,

Tyler.

BENCHMARK INSURANCE COMPANY, Appellant

v.

Robert William SULLIVAN, Appellee.

No. 12-07-00223-CV.

 

April 30, 2009.

 

MEMORANDUM OPINION

 

BRIAN HOYLE, Justice.

 

Benchmark Insurance Company appeals the trial court’s judgment, in which the court found that the amount of Benchmark’s statutory workers’ compensation lien was $190,465.10 and that Appellee Robert William Sullivan’s attorney was entitled to one-third of the lien as attorney’s fees. Benchmark raises five issues on appeal. We affirm.

 

BACKGROUND

 

While Sullivan was working for Silva-Tech South, Inc., his vehicle was involved in a collision with a truck driven by Johnathan Santos, who was an employee of Willoughby Trucking, Inc. Sullivan requested and received workers’ compensation benefits from Benchmark, which was Silva-Tech’s workers’ compensation insurer. Sullivan also pursued a third party action against, among others, Santos and Willoughby Trucking.

 

Attorney Don Wheeler filed this third party suit on Sullivan’s behalf. In his prosecution of the case on Sullivan’s behalf, Wheeler obtained discovery, prepared the case for trial, and represented Sullivan at trial. Wheeler also paid all expenses related to the case. Ultimately, Sullivan was awarded a significant verdict. By this time, Wheeler had worked on the case for more than two years. During this period, Benchmark hired the law firm of Dean G. Pappas & Associates, P.C., to represent it. From that time until the jury returned its verdict for Sullivan, Pappas filed a petition in intervention, served written discovery on Sullivan, made a motion for partial summary judgment and sanctions against Sullivan, and entered into a Rule 11 agreement with Sullivan in which Sullivan acknowledged that Benchmark had a statutory lien against any judgment rendered in the case.

 

Wheeler filed a motion for judgment on Sullivan’s behalf. Pappas filed a response to the motion for judgment on Benchmark’s behalf asserting that the amount of its workers’ compensation statutory lien was $199,656.10. In accordance with Texas Labor Code, section 417.003(c), Pappas asserted that the attorney’s fees related to the recovery of the statutory lien should be distributed entirely to Pappas.

 

The trial court held a hearing on Sullivan’s motion for judgment. At the hearing, Sullivan argued that the amount of the workers’ compensation statutory lien was $190,456.10 rather than the $199,656 .10 amount Benchmark claimed because, according to Sullivan, Benchmark’s lien amount improperly included administrative costs. Sullivan argued that the statutory lien should be further reduced since (1) the jury impliedly reduced his recovery because he was not wearing his seatbelt and (2) Benchmark caused Sullivan to undergo an unnecessary and ineffective type of back surgery rather than the more expensive type of back surgery his doctor recommended. Sullivan further requested that Wheeler be awarded one-third of Benchmark’s recovery on the lien as attorney’s fees. In response, Benchmark argued that the amount of its statutory lien should not be reduced. At the hearing on Sullivan’s motion, Benchmark adjusted its position concerning attorney’s fees and argued that Pappas and Wheeler should share attorney’s fees. Subsequently, the trial court rendered a judgment that embodied Sullivan’s positions concerning the statutory lien and attorney’s fees.

 

Thereafter, Benchmark filed a motion for new trial.The trial court conducted a telephone hearing on Benchmark’s motion and, ultimately, denied the motion. The trial court later reconsidered its ruling, and granted sua sponte Benchmark’s motion for new trial. In its order granting Benchmark a new trial, the trial court severed Benchmark’s claims from the remainder of the case and ordered the parties to mediation.

 

After the verdict, Benchmark also filed (1) a motion to have funds deposited into registry of the court, (2) an application for temporary restraining order and temporary injunction, (3) multiple affidavits, (4) a motion to set aside the order of severance, (5) a first amended motion to determine amount of lien, (6) a motion for entry of judgment, (7) a first amended motion for new trial, and (8) a notice of appeal.

 

The trial court subsequently conducted another evidentiary hearing on the amount of Benchmark’s lien.Benchmark asserted that the proper amount of its lien was $196,601.14. To support this contention, Benchmark offered the affidavit of Kathy Murphy, which was signed only five days earlier. Sullivan objected to the Murphy affidavit as hearsay. The trial court sustained Sullivan’s objection. As he had done previously, Sullivan asserted that the amount of the statutory lien was $190,456.10. However, in this instance, Sullivan did not seek to have the amount of the lien reduced on equitable grounds. Sullivan further argued that Wheeler should be paid one-third of the statutory lien as attorney’s fees while Benchmark again argued that the attorney’s fee apportionment should be shared between Pappas and Wheeler. The trial court found the amount of Benchmark’s statutory lien to be $190,465.10, awarded Wheeler one-third of the statutory lien as attorney’s fees, declined to award Pappas any attorney’s fees, and found Benchmark’s portion of the expenses to be $10,079.59. The trial court did not file, nor did Benchmark request, findings of fact and conclusions of law. This appeal followed.

 

In its brief, Benchmark refers to this evidentiary hearing as the second trial.

 

AMOUNT OF BENCHMARK’S STATUTORY LIEN

 

In its second, third, and fourth issues, Benchmark argues that the trial court erred in finding that the amount of Benchmark’s statutory lien was $190,465.10. Specifically, in its fourth issue, Benchmark contends that the trial court’s exclusion of Murphy’s affidavit was error that resulted in the trial court’s inaccurate finding as to the amount of the lien. In its second issue, Benchmark argues that Sullivan’s contention that the parties agreed to the $190,465.10 lien amount constituted an avoidance or affirmative defense that Sullivan neither pleaded nor proved. In its third issue, Benchmark contends that the finding that the amount of the lien was $190,465.10 resulted in Sullivan’s obtaining a double recovery because he received additional benefits that were not factored into the lien amount.

 

Admissibility of Murphy’s Affidavit

 

We review a trial court’s exclusion of evidence based on an abuse of discretion standard. See Lively v. Blackwell, 51 S.W.3d 637, 641 (Tex.App.-Tyler 2001, pet. denied). A trial court abuses its discretion when its decision is unreasonable, arbitrary, or made without regard for any guiding rules or principles. Id. Further, we uphold a trial court’s evidentiary finding if there was any proper ground for the ruling. Id.

 

Hearsay is an out of court statement offered to prove the truth of the matter asserted. SeeTEX.R. EVID. 801(d). Generally, unless offered under an applicable exception to the hearsay rule, an affidavit is inadmissible hearsay and constitutes no evidence. See Anthony Pools v. Charles & David, Inc., 797 S.W.2d 666, 676 (Tex.App.-Houston [14th Dist.] 1990, writ denied). But business records may be authenticated by affidavit, provided that the affidavit has been on file for at least fourteen days prior to trial. SeeTEX.R. EVID. 902(10).

 

In the instant case, Benchmark attempted to prove the amount of its lien solely through the testimony contained in Murphy’s affidavit. When Sullivan objected to the affidavit as hearsay, Benchmark argued that the affidavit was based on personal knowledge, had exhibits showing the amounts paid to Sullivan, was never objected to by Sullivan, had been on file numerous times, and was supplemented to prove the recent payments made to Sullivan. The trial court sustained Sullivan’s objection.

 

Our review of the record demonstrates that Murphy’s affidavit had been signed only five days prior to the subsequent trial. Because the affidavit was not on file for the requisite fourteen days before the subsequent trial, it could not serve as an authentication to business records. SeeTEX.R. EVID. 902(10). None of Murphy’s previous affidavits were offered in evidence. Since Murphy’s affidavit did not comply with an exception to the hearsay rule, it was inadmissible hearsay. See Anthony Pools, 797 S.W.2d at 676. Therefore, we cannot conclude that the trial court abused its discretion in sustaining Sullivan’s hearsay objection. Benchmark’s fourth issue is overruled.

 

Proof of Amount of Workers’ Compensation Statutory Lien

 

The right of a workers’ compensation insurer is statutory. Tex. Workers’ Comp. Ins. Fund v. Travis, 912 S.W.2d 895, 897 (Tex.App.-Fort Worth 1995, no writ); see Gautreaux v. City of Port Arthur, 406 S.W.2d 531, 534 (Tex.Civ.App.-Beaumont 1966, writ ref’d n.r.e.). It is well settled Texas law that a workers’ compensation carrier is entitled to recover all compensation paid to an insured employee as a result of the employee’s recovery of damages from a third party in a negligence action. Travis, 912 S.W.2d at 897;seeTEX. LAB.CODE ANN. § 417.001(b) (Vernon 2006). The workers’ compensation claimant has no right to any funds received from a third party tortfeasor until the workers’ compensation carrier receives its payment in full. Travis, 912 S.W.2d at 897-98. When the amount of this statutory lien is not agreed upon by the parties, the insurer must offer evidence to prove the amount of benefits paid by offering evidence. Lege v. Jones, 919 S.W.2d 870, 874 (Tex.App.-Houston [14th Dist.] 1996, no writ); see also Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 37, 37 (Tex .2008).

 

In its second and third issues, Benchmark argues that Sullivan failed to demonstrate that the parties agreed to a statutory lien of $190,465.10 and that the trial court’s determination of the statutory lien resulted in a double recovery for Sullivan. We disagree. Benchmark bore the burden to prove the amount of its lien. See Lege, 919 S.W.2d at 874. Once the trial court sustained Sullivan’s objection to Murphy’s affidavit, Benchmark failed to offer any additional admissible evidence supporting the amount of its lien. Rather, Benchmark simply argued its case to the court. Because Sullivan agreed that the statutory lien was at least $190,465.10 and because Benchmark argued that the lien was more than that amount, the trial court did not abuse its discretion in its determination that the lower amount asserted by Sullivan was the amount of the lien.See Lege, 919 S.W.2d at 874 (An insurer has no duty to present evidence proving amount of the portion of the lien upon which the parties agree.).

 

While the parties did not specifically agree to the exact amount of the lien, the record supports that both parties acknowledge the existence of a valuable lien. Thus, it logically follows that there is an agreement that the amount of the lien is at least the lower amount asserted before the trial court. Yet, for Benchmark to be entitled to a lien with a greater value than the amount to which Sullivan agreed, Benchmark was required to offer admissible evidence.

 

Similarly, Benchmark failed to prove that Sullivan was receiving a double recovery. Had Benchmark established through admissible evidence that it had paid more in benefits, the trial court would have had no discretion but to award that amount. See Travis, 912 S.W.2d at 897. We note that the case at hand is distinguishable from Ledbetter.In Ledbetter, the court commented that the insurer was surprised by the need to present evidence. See Ledbetter, 251 S.W.3d at 37. Based on our review of the evidence, it is apparent Benchmark understood that it was required and, in fact, sought to present evidence in support of the value of its lien, but neglected to present such evidence in an admissible form. Because Benchmark failed to satisfy its burden, we hold that the trial court did not abuse its discretion in determining the amount of the statutory lien to be $190,465.10. Benchmark’s second and third issues are overruled.

 

APPORTIONMENT OF ATTORNEY’S FEES

 

In its first issue, Benchmark argues that the trial court erred in finding that Wheeler was entitled to one-third of the lien as attorney’s fees because Wheeler sought to reduce the amount of Benchmark’s lien and failed to notify Benchmark that Sullivan received monies from third parties.

 

Standard of Review

 

We review the trial court’s award of attorney’s fees under Texas Labor Code, section 417.003 for abuse of discretion. See Erivas v. State Farm Mut. Auto. Ins. Co., 141 S.W.3d 671, 676 (Tex.App.-El Paso 2004, no pet.). When a trial court awards attorney’s fees under section 417.003, and no findings of fact or conclusions of law are filed or requested, we imply all necessary findings to support the trial court’s judgment. See Hartford Acc. & Indem. Co. v. Buckland, 882 S.W.2d 440, 446 (Tex.App.-Dallas 1994, writ denied).

 

Applicable Law

 

Texas Labor Code, section 417.003 states, in pertinent part, as follows:

 

(a) An insurance carrier whose interest is not actively represented by an attorney in a third-party action shall pay a fee to an attorney representing the claimant in the amount agreed on between the attorney and the insurance carrier. In the absence of an agreement, the court shall award to the attorney payable out of the insurance carrier’s recovery:

 

(1) a reasonable fee for recovery of the insurance carrier’s interest that may not exceed one-third of the insurance carrier’s recovery; and

 

(2) a proportionate share of expenses.

 

….

 

(c) If an attorney actively representing the insurance carrier’s interest actively participates in obtaining a recovery, the court shall award and apportion between the claimant’s and the insurance carrier’s attorneys a fee payable out of the insurance carrier’s subrogation recovery. In apportioning the award, the court shall consider the benefit accruing to the insurance carrier as a result of each attorney’s service. The total attorney’s fees may not exceed one-third of the insurance carrier’s recovery.

 

TEX. LAB.CODE ANN. § 417.003 (Vernon 2006). Thus, the attorney for an injured worker is entitled to attorney’s fees from the workers’ compensation statutory lien if one of the following three situations exists: (1) the insurer hires an attorney to represent it but the attorney does not actively represent it; (2) the worker’s attorney represents both the worker and the insurer; or (3) the insurer is actively represented by its attorney who participates in obtaining a recovery. See City of Arlington v. Lummus, 871 S.W.2d 536, 537 (Tex.App.-Fort Worth 1994, writ denied). Active representation requires that an attorney take steps, adequate when measured by the difficulty of the case, toward prosecuting the claim. Buckland, 882 S.W.2d at 447. When a comparison of the respective roles of the attorneys shows that one attorney was primarily responsible for recovery of the subrogation amount, a trial court’s finding that the fee should be apportioned completely to that attorney is not an abuse of discretion. See Lummus, 871 S.W.2d at 538.

 

Application

 

Benchmark argues that section 417.003(c) applies because Pappas actively participated in obtaining Benchmark’s recovery. On the other hand, Sullivan argues that section 417.003(a) applies because Pappas failed to actively participate in the litigation. The record reflects that Benchmark allowed Wheeler to do all of the work and bear all of the expenses appertaining to the prosecution of the case against the third parties. Once the amount of work Wheeler conducted culminated in a judgment that satisfied Benchmark’s statutory lien, Benchmark filed a response to Sullivan’s motion for judgment seeking to have all attorney’s fees from the statutory lien awarded to Pappas. Although Benchmark later adjusted its position at the hearing on the motion for judgment by requesting that Pappas and Wheeler share attorney’s fees, its initial position indicates its level of cooperation with Wheeler in his prosecution of the case on Benchmark’s behalf.

 

Nonetheless, we acknowledge the accuracy of Benchmark’s assertion that Wheeler, in fact, requested that the statutory lien be reduced at the initial hearing on the motion for judgment. After it reduced the lien, however, the trial court ordered sua sponte a new trial to determine the amount of the lien. At the subsequent trial, Wheeler declined to request that the statutory lien be reduced either on grounds that (1) there existed an implied finding of negligence on Sullivan’s part or (2) Benchmark failed to authorize a necessary surgery for Sullivan. Instead, Wheeler acknowledged that the statutory lien was $190,465.10. Therefore, we cannot conclude that the trial court abused its discretion by awarding one-third of the lien as attorney’s fees to Wheeler even if such an award resulted in attorney’s fees being apportioned one hundred percent to Wheeler and zero percent to Pappas. See Lummus, 871 S.W.2d at 537. Benchmark’s first issue is overruled.

 

JUDGMENT IN THE INTERPLEADER ACTION

 

In its fifth issue, Benchmark argues that the trial court erred in entering a judgment in an interpleader action filed by Home State County Mutual Insurance Company. Home State is not a party to this appeal. Its interpleader action and the underlying action made the basis of this appeal have different cause numbers in the trial court. As such, we decline to address Benchmark’s fifth issue because it is not necessary to final disposition of this appeal. SeeTEX.R.APP. P. 47.1.

 

DISPOSITION

 

Having overruled Appellant’s first, second, third, and fourth issues, we affirm the trial court’s judgment.

 

Tex.App.-Tyler,2009.

Benchmark Ins. Co. v. Sullivan

Not Reported in S.W.3d, 2009 WL 1153385 (Tex.App.-Tyler)

 

END OF DOCUMENT