Bits & Pieces

Fulgham v. FFE Transportation



Court of Appeals of Texas,


Larry FULGHAM and Debra Fulgham, Appellants



No. 05-01-01040-CV.

July 12, 2005.



Opinion by Justice RICHTER.

This product liability and negligence case is on remand from the Supreme Court of Texas. That Court disagreed with our remand of both claims to the trial court for further proceedings. [FN1] Holding that the trial court correctly granted directed verdict in favor of FFE with respect to the product liability claim, the Supreme Court has instructed us to review the issues of spoliation and exclusion of expert witness testimony, which we did not reach on original submission. Having done so, we have determined that the trial court properly granted directed verdict in favor of FFE with respect to the negligence claim. We affirm the trial court’s judgment.

FN1. On original submission, the panel consisted of Justices James, Farris, and Rosenberg.


Larry Fulgham was injured when a trailer owned by FFE Transportation Services, Inc. broke loose from the tractor that he was driving. Larry and his wife Debra brought suit against FFE based on the theory that the bolts holding the upper coupler assembly to the base rail of the trailer broke because they were rusted. The Fulghams claimed that FFE was negligent in failing to timely inspect, maintain, and service the trailer. The Fulghams also alleged strict product liability because FFE introduced a defective product into the stream of commerce pursuant to a “lease.”

At the conclusion of the Fulgham’s case, FFE orally moved for directed verdict. FFE asserted that there was no evidence to support the negligence claim, specifically arguing that the Fulghams had failed to present the necessary expert testimony to establish the industry standard of care. As to the strict liability claim, FFE asserted that there was no evidence that it had placed the trailer into the stream of commerce. The trial court granted FFE’s motion for directed verdict with respect to both claims, specifically finding that expert testimony was required to establish the standard of care with respect to negligence. The court entered a take-nothing judgment against the Fulghams.

On original submission to this Court, the Fulghams claimed that the trial court erred (1) in failing to consider spoliation of evidence, (2) in holding that there was no evidence of the standard of care or breach of the standard of care, (3) in holding that there was no evidence to invoke product liability law, and (4) in excluding part of their expert’s testimony. We concluded that there was some evidence to establish negligence without the expert testimony, which was not necessary in this case, and held that the trial court had erred in granting directed verdict on the negligence claim. We also held that the trial court erred in granting directed verdict on the product liability claim. Without reaching the issues of spoliation and exclusion of expert testimony, we reversed the trial court’s judgment and remanded the case for further proceedings. Larry Fulgham and Debra Fulgham v. FFE Transportation Services, Inc., 152 S.W.2d 140 (Tex.App.-Dallas, 2002).

The Supreme Court of Texas reversed our holding and remanded this case for our consideration of the remaining two issues. The Court concluded:

1. The trial court correctly dismissed the strict products liability claim;

2. On appeal, the trial court’s determination of whether expert testimony is necessary to establish negligence should be reviewed de novo;

3. The trial court did not err in finding that the standard of care for the proper inspection and maintenance of a refrigerated trailer is beyond the experience of a layman and must therefore by established by expert testimony; and

4. No probative expert testimony regarding the relevant standard of care was admitted.

FFE Transportation Services, Inc. v. Larry Fulgham and Debra Fulgham, 154 S.W.3d 84 (Tex.2004). We now consider the issues of spoliation and exclusion of expert witness testimony, both of which relate only to the negligence claim.


The Fulghams argue that the trial court erred in failing to consider spoliation of the evidence. Specifically, they contend that if the trial court had given the proper evidentiary weight to the spoliation presumption when considering FFE’s motion for directed verdict, they would have survived the directed verdict. We disagree.

The Fulghams rely on Justice Baker’s concurring opinion in the Trevino case to support this argument. See Trevino v. Ortega, 969 S.W.2d 950, 960 (Tex.1998). According to Justice Baker’s opinion, two presumptions may arise when evidence is destroyed or unavailable, depending upon the severity of prejudice to the nonspoliating party: (1) a rebuttable presumption that actually shifts the burden of proof to the spoliating party to disprove the presumed fact or issue, or (2) an adverse presumption that the evidence would have been unfavorable to the spoliating party. Id.

The first presumption can enable the nonspoliating party to survive, among other things, a directed verdict because the presumption will support the nonspoliating party’s assertions and will constitute some evidence of the particular issue that the destroyed evidence might have supported. Id. If considered by the jury, this presumption requires an instruction that the unfavorable presumption is not overcome unless the spoliating party rebuts it to the jury’s satisfaction. Id. According to the Fulghams, because FFE did not actually rebut the presumption of negligence raised by the absence of the upper coupler assembly, they should have survived FFE’s motion for directed verdict. The Fulghams, however, ignore the fact that this presumption is triggered when the nonspoliating party cannot present its case without the destroyed evidence. Id. If the nonspoliating party can prove its case without the spoliated evidence, the nonspoliating party is not relieved of its burden to prove each element of its case. Id., at 961. In the case of the “less severe” presumption, the trial court merely instructs the jury that the adverse presumption should be used in weighing the evidence. Id.

Here, other competent evidence existed regarding the upper couple assembly and its role in the accident. A number of photographs of the accident scene were produced along with the trailer manufacturer’s engineering drawings and the base rail from the trailer. The Fulghams also called four eyewitnesses that testified that they saw rust and broken bolts that they believed protruded vertically to hold the upper coupler assembly to the trailer.

After hearing the Fulghams’ case, the trial court commented that there might be enough to allow the more lenient jury instruction regarding spoliation. Thus, the trial court did consider the spoliation issue prior to granting the motion for directed verdict and impliedly found that the absence of the upper coupler assembly had not prejudiced the Fulghams in presenting their case. We agree with the trial court’s assessment. Under Justice Baker’s analysis, the Fulghams were not relieved of their burden to prove each element of their case, even if there was an adverse presumption that the upper coupler assembly would have been unfavorable to FFE. As we discuss below, the Fulghams did not prove each element of negligence.

We overrule the Fulghams’ spoliation issue.


The Fulghams complain that the trial court erred in excluding part of the testimony of their expert witness, Jim Mallory. We disagree.

Jim Mallory had previously testified for the Fulghams and was called back to offer testimony regarding the standard of care. During his initial testimony, he described himself as a safety engineer, accident reconstructionist and forensic engineer with experience in investigating the cause of major accidents and traffic safety problems. Mallory testified that he has a degree in civil engineering with a structural major, which deals primarily with the engineering of metal and concrete structures. He was hired by the Fulghams to reconstruct the accident in this case. On cross-examination, Mallory testified that he holds himself out to be an expert on auto fires; accidents involving motorcycles, bicycles, and off-road RVs; damaged telephone systems; large and small appliances; electrical systems; septic tank designs; slip and falls; and recreational accidents. He admitted that he had never consulted regarding the manufacture of a trailer and has never worked for a trailer manufacturing company.

When Mallory was recalled to the stand to testify about the standard of care, FFE objected, claiming that Mallory was not qualified to testify on that topic. The trial court held a hearing outside the presence of the jury. Fulghams’ attorney asked for the industry standard on the inspection of fasteners in tractor-trailer rig. Mallory replied “I think the standard is based upon this standard [Federal Motor Carrier Safety regulations] …” When he was asked what is a reasonable inspection of fasteners related to the fifth wheel plate and any area that has bolts, Mallory admitted that he was familiar only with Central Freight’s maintenance procedures, which are very thorough. He then commented that some companies are at the other end of the spectrum and may not actually conduct an inspection. When he was asked to describe a reasonable safety inspection of bolts, Mallory answered that FFE probably has an adequate procedure for assuring that bolts do not come loose. At the conclusion of the hearing, the trial court found that Mallory’s opinion based on his experience as an accident reconstructionist was not enough to establish the industry standard of care.

Expert testimony is admissible if (1) the expert is qualified and (2) his testimony is relevant and based on a reliable foundation. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex.1995). The offering party has the burden to establish that the expert has “knowledge, skill, experience, training, or education” regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject. Broders v. Heise, 924 S.W.2d 148, 149, 152-53 (Tex.1996).

Here, Mallory’s testimony established that he was not qualified to testify regarding the industry standard of care in this case. The Fulghams claim that the trial court excluded Mallory’s testimony because he admitted that there was no standard of care in the trucking industry regarding the inspection of fasteners on trailers. However, Mallory never said that. He indicated that he did not know what the standard is. The trial court properly excluded that portion of his testimony.

We overrule the Fulghams’ issue with respect to exclusion of expert witness testimony.


In evaluating a directed verdict, we must determine if there was legally sufficient evidence that would support each of the elements of the cause of action-in this case, negligence. See Smith v. Aqua Flo, Inc., 23 S.W.3d 473, 476 (Tex.App.-Houston [1st Dist.] 2000, pet. denied). To establish negligence, a plaintiff must show (1) the defendant owed a legal duty to the plaintiff and breached that duty, and (2) damages proximately resulting from the breach. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995).

Contrary to the Fulghams’ assertion regarding spoliation of evidence, they were not relieved of their burden to prove each element of their case. Here, the Fulghams presented no evidence of the industry’s standard of care, which would have established FFE’s legal duty to Mr. Fulgham. Even with Mallory’s excluded testimony, there was no evidence of FFE’s duty under industry standards with respect to the inspection and maintenance of the trailer. The trial court properly granted FFE’s motion for directed verdict with respect to the Fulghams’ negligence claim.

Based on the Supreme Court’s approval of the trial court’s judgment with respect to the strict liability claim and this Court’s conclusions regarding the negligence claim, we affirm the trial court’s judgment.


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