NO. 04-14-00124-CV

IN THE COURT OF APPEALS OF TEXAS

FOURTH APPELLATE DISTRICT

AT SAN ANTONIO

*****

WESTFREIGHT SYSTEMS INC. 

v. 

JOHN MICHAEL HEUSTON, individually and as 

dependent administrator of the ESTATE OF JUANA 

GARZA, deceased, and GERONIMO RODRIGUEZ, 

individually

*****

Reply and Cross-Appellee’s Brief of 

Westfreight Systems Inc.

*****

On Appeal from the 79th District Court, Jim Wells County, Texas

Hon. Richard Terrell, Judge

Cause No. 12-03-50966-CV

*****

Brian Miller

State Bar No. 24002607

ROYSTON RAYZOR

VICKERY & WILLIAMS L.L.P.

Frost Bank Plaza, Suite 1300

802 N. Carancahua St.

Corpus Christi, TX 78401

Tel. No. (361) 884-8808

Fax No. (361) 884-7261

E-mail: brian.miller@roystonlaw.com

Lead appellate counsel for appellant 

Westfreight Systems Inc.

ORAL ARGUMENT REQUESTED

ACCEPTED

04-14-00124-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

1/9/2015 9:52:25 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 01/9/2015 9:52:25 PM KEITH E. HOTTLE Clerk
TABLE OF CONTENTS

INDEX OF AUTHORITIES .........................................................................iii

ISSUES PRESENTED .................................................................................. vi

SUMMARY OF REPLY AND CROSS-APPELLEE ARGUMENTS ......... 1

ARGUMENT.................................................................................................. 2

I. Plaintiffs did not provide legally sufficient evidence of proximate 

cause. ........................................................................................................... 2

A. Plaintiffs apply an incorrect definition of “cause in fact.”................. 2

B. Westfreight did not admit to proximate cause..................................... 3

C. Plaintiffs’ experts did not provide competent evidence of proximate 

cause......................................................................................................... 4

1. An objection to admissibility is not a prerequisite when opinion 

testimony is conclusory or speculative................................................ 4

2. Critical to Plaintiffs’ theory is opinion testimony that Garza 

could not perceive the rig’s presence ahead of her.............................. 9

3. Plaintiffs offered only conclusory and speculative opinion 

testimony that the rig was not sufficiently visible to Garza.............. 14

D. No other evidence shows that Westfreight’s conduct created more 

than a condition necessary for the collision to occur............................ 18

E. Plaintiffs have not ruled out other plausible explanations, such as 

driver inattention, as the sole or superseding cause of the accident..... 23

F. The foreseeability component is also absent..................................... 24

II. Plaintiffs are not entitled to a new trial. ............................................... 26

A. Plaintiffs’ new trial complaint is moot because the evidence does not 

support Westfreight’s liability................................................................ 26

i
B. A new trial may not be granted for factual insufficiency of the 

evidence.................................................................................................. 27

1. Any factual insufficiency point is waived by inadequate 

briefing............................................................................................... 27

2. The evidence is factually sufficient to support the jury’s 

negligence and apportionment findings against Garza...................... 29

C. A new trial may not be granted for improper witness coaching....... 30

1. Plaintiffs did not preserve this issue in the trial court. .................. 30

2. Plaintiffs’ inadequate briefing waived the issue............................ 31

3. The record does not show that any impropriety occurred............. 32

4. Even assuming that improper coaching occurred, Plaintiffs have 

not shown that the trial court abused its discretion by denying a 

new trial. ............................................................................................ 33

CONCLUSION AND PRAYER FOR RELIEF........................................... 35

CERTIFICATE OF SERVICE..................................................................... 37

CERTIFICATE OF WORD-COUNT COMPLIANCE ............................... 38

ii
INDEX OF AUTHORITIES

Cases

Abdelnour v. Mid Natl. Holdings Inc., 190 S.W.3d 237 (Tex. App. –

Houston [1st Dist.] 2006, no pet.)............................................................. 28

Alamo Carriage Serv. Inc. v. City of San Antonio, 768 S.W.2d 937 (Tex. 

App. – San Antonio 1989, no writ)........................................................... 30

Bell v. Campbell, 434 S.W.2d 117 (Tex. 1968).................................12-14, 18

Cain v. Bain, 709 S.W.2d 175 (Tex. 1986) .................................................. 29

City of Kemah v. Vela, 149 S.W.3d 199 (Tex. App. – Houston [14th Dist.] 

2004, pet. den.).................................................................................... 12, 18

City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009).....5, 7-8, 14, 17

Coastal Transport Co. Inc. v. Crown Cent. Petrol. Corp., 136 S.W.3d 227 

(Tex. 2004) ...............................................................................................4-8

ERI Consulting Engineers Inc. v. Swinnea, 318 S.W.3d 867 (Tex. 2010)... 28

Erie Ins. Exch. v. U.S., 115 F.Supp.2d 493 (M.D. Pa. 2000)................. 13, 18

Fitzsimmons v. Brake Check Inc., 832 S.W.2d 446 (Tex. App. – Houston 

[14th Dist.] 1992, no writ).......................................................................... 19

Fort Worth & Denver City Railway Co. v. Garrett, 28 S.W.2d 301 (Tex. 

Civ. App. 1930, writ ref’d)........................................................................ 12

Gammill v. Jack Williams Chevrolet Inc., 972 S.W.2d 713 (Tex. 1998)....... 4

Garza v. Garza, No. 4-11-310-CV, 2013 WL 749727 (Tex. App. – San 

Antonio Feb. 27, 2013, no pet.)................................................................. 29

In re Toyota Motor Sales U.S.A. Inc., 407 S.W.3d 746 (Tex. 2013) ........... 31

In re United Scaffolding Inc., 377 S.W.3d 685 (Tex. 2012) ........................ 30

Jackson v. Williams Brothers Construction Co., 364 S.W.3d 317 (Tex. App. 

– Houston [1st Dist.] 2011, pet. den.) ........................................................ 28

iii
Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010) ............................................ 16

Marathon Corp. v. Pitzner, 106 S.W.3d 724 (Tex. 2003).............................. 2

Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (Tex. 1998)................... 6

Merrell Dow Pharmaceuticals Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) 

..................................................................................................................... 4

Shupe v. Lingafelter, 192 S.W.3d 577 (Tex. 2006)...................................... 27

Ski River Development Inc. v. McCalla, 167 S.W.3d 121 (Tex. App. – Waco 

2005, pet. den.).......................................................................................... 34

Teter v. Comm’n for Lawyer Discipline, 261 S.W.3d 796 (Tex. App. –

Dallas 2008, no pet.).................................................................................. 28

Tex. & New Orleans R. Co. v. Compton, 136 S.W.2d 1113 (Tex. 1940)..... 21

Tex. Elec. Co-op. v. Dillard, 171 S.W.3d 201 (Tex. App. – Tyler 2005, no 

pet.)............................................................................................................ 18

Union Pump Co. v. Allbritton, 898 S.W.2d 773 (Tex. 1995)......................... 3

Utz v. Running & Rolling Trucking Inc., 32 So.3d 450 (Miss. 2010).......... 15

Volkswagen of America Inc. v. Ramirez, 159 S.W.3d 897 (Tex. 2004)......7-8

Wal-Mart Stores Inc. v. Merrell, 313 S.W.3d 837 (Tex. 2010) ................... 24

Watts v. Watts, 396 S.W.3d 19 (Tex. App. – San Antonio 2012, no pet.) 

.............................................................................................................33- 34

Whirlpool Corp. v. Camacho, 298 S.W.3d 631 (Tex. 2009)...................... 4, 6

Wolf v. Friedman Steel Sales Inc., 717 S.W.2d 669 (Tex. App. – Texarkana 

1986, writ ref’d n.r.e.) ............................................................................... 25

Statutes

TEX. CIV. PRAC. & REM. CODE §33.003 ....................................................... 26

TEX. CIV. PRAC. & REM. CODE §41.001........................................................ 34

TEX. TRANSP. CODE §541.302 ...................................................................... 20

iv
TEX. TRANSP. CODE §545.415....................................................................... 20

Rules

TEX. R. APP. P. 33.1 ...................................................................................... 31

TEX. R. APP. P. 38.1 ................................................................................ 28, 32

TEX. R. APP. P. 43.3 ...................................................................................... 26

TEX. R. APP. P. 44.1 ...................................................................................... 34

TEX. R. CIV. P. 321........................................................................................ 31

TEX. R. CIV. P. 322........................................................................................ 31

v
ISSUES PRESENTED

Westfreight presents this issue:

Did Plaintiffs present legally sufficient evidence of 

proximate causation, such that the trial court could render 

judgment on a jury verdict? Or was the evidence legally 

insufficient, requiring the rendering of a take-nothing 

judgment?

Appellant’s brief, at xi.

Plaintiffs cross-appealed and present the following additional issue

(which is restated):

Did the trial court abuse its discretion by denying

Plaintiffs’ motion for new trial?

See Appellees’ brief, at viii, 47-49.

vi
SUMMARY OF REPLY AND CROSS-APPELLEE 

ARGUMENTS

The evidence of proximate cause is not legally sufficient to sustain the 

judgment against Westfreight Systems Inc. Essential to Plaintiffs’ causation 

theory was opinion testimony that the Westfreight tractor-trailer rig was not 

sufficiently conspicuous to allow Juana “Janie” Garza to perceive its 

presence ahead of her. That opinion testimony, however, was conclusory and 

speculative and therefore incompetent to sustain a judgment. No other 

evidence shows that Westfreight’s conduct amounted to more than a 

condition necessary for the collision to occur. See below, at 2-26.

1

Although Plaintiffs seek a new trial by their cross-appeal, the crossappeal is mooted by the legal insufficiency of the evidence to support 

Westfreight’s liability. Plaintiffs nonetheless forfeited their new trial 

grounds by failing to preserve them in the trial court, inadequately briefing 

them on appeal, or both. Regardless, neither Plaintiffs’ factual-sufficiency 

challenge nor their witness-coaching allegations show that the trial court 

abused its discretion by denying a new trial. See below, at 26-35.

1 This brief uses the term “Plaintiffs” to refer to all of the plaintiffs-appellees in all of 

their capacities. See Appellant’s brief, at ix fn. 1.

1

 
ARGUMENT

I. Plaintiffs did not provide legally sufficient evidence of proximate 

cause.

Westfreight’s appeal challenges the legal sufficiency of Plaintiffs’ 

proximate cause evidence. Appellant’s brief, at xi (issues presented). “The 

components of proximate cause are cause in fact and foreseeability.” 

Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003). Westfreight’s 

opening brief explained how Plaintiffs’ evidence failed to establish each 

component. Appellant’s brief, at 14-38.

A. Plaintiffs apply an incorrect definition of “cause in fact.”

Westfreight’s opening brief explained that “but for” causation is 

necessary – but not sufficient – to establish cause in fact. Appellant’s brief, 

at 13-14. Texas uses a “substantial factor” standard for cause in fact, asking 

“whether the act or omission was a substantial factor in causing the injury 

without which the harm would not have occurred.” Marathon, at 727.

Plaintiffs’ brief never addresses “substantial factor” causation. The 

word “substantial” does not appear in their brief. Plaintiffs address only 

“but-for” causation. See, e.g., Appellees’ brief, at 36-37 (purported 

admissions of “but for” causation).

Plaintiffs argue an erroneous causation standard. The law requires a 

closer causal relationship than mere “but for” causation. See Appellant’s 

2
brief, at 13-14 (additional discussion). “Substantial factor” causation is 

essential to establish that the defendant’s conduct did something more than 

merely furnish a “condition that makes the plaintiff’s injury possible.” Union 

Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995).

Plaintiffs’ exclusive focus on “but-for” causation is therefore 

misplaced.

B. Westfreight did not admit to proximate cause.

Plaintiffs dedicate much of their brief to testimony about 

Westfreight’s negligence. See, e.g., Appellees’ brief, at 5-17. But whether 

Westfreight was negligent is not at issue in this appeal. Appellant’s brief, at 

xi (statement of issues). Westfreight’s challenge to the trial court’s judgment 

is based on the absence of evidence to support the proximate cause element 

of Plaintiffs’ negligence claim. Id.

Plaintiffs assert that Westfreight admitted “but for” causation, as if 

that were sufficient to establish cause in fact. See Appellees’ brief, at 19-21, 

36-37. But, as just discussed above, at 2-3, “substantial factor” causation is 

also an essential component of cause in fact, and Plaintiffs’ brief never 

addresses that component.

Even as to “but for” causation, the purported admissions are not what 

Plaintiffs claim them to be. Plaintiffs cite and quote the testimony of 

3
Westfreight safety director James Semeschuk, but nearly all of the testimony 

is in terms of what “could have” happened if different actions were taken. 

See Appellees’ brief, at 20-21, citing and quoting R.R. 5:274-276.

Testimony of what “could have” happened is speculative because the 

testimony only identifies what is possible. Gammill v. Jack Williams 

Chevrolet Inc., 972 S.W.2d 713, 728 (Tex. 1998) (testimony of what “could 

have happened” held insufficient). The burden of proof requires evidence

about what was probable – that is, “more likely than not.” Merrell Dow 

Pharmaceuticals Inc. v. Havner, 953 S.W.2d 706, 717 (Tex. 1997).

C. Plaintiffs’ experts did not provide competent evidence of 

proximate cause.

1. An objection to admissibility is not a prerequisite when 

opinion testimony is conclusory or speculative.

Westfreight’s opening brief explained that conclusory and speculative 

opinion testimony is “not relevant evidence” because it does not “make the 

existence of material facts more probable or less probable.” Whirlpool Corp. 

v. Camacho, 298 S.W.3d 631, 637 (Tex. 2009), quoted in Appellant’s brief, 

at 11 (providing additional discussion). Such testimony is “incompetent 

evidence” and “cannot support a judgment.” Coastal Transport Co. Inc. v. 

Crown Cent. Petrol. Corp., 136 S.W.3d 227, 232 (Tex. 2004).

4
Westfreight’s opening brief also explained that Plaintiffs relied on 

conclusory and speculative opinion testimony to assert that the accident 

happened because the Westfreight rig was not sufficiently visible to Garza. 

Appellant’s brief, at 18-36. In response, Plaintiffs claim that Westfreight was 

required to object to the admissibility of the opinion testimony to preserve 

that legal sufficiency complaint. Appellees’ brief, at 28-33. Plaintiffs are 

wrong.

Plaintiffs acknowledge that the Texas Supreme Court has drawn “a 

distinction between challenges to an expert’s scientific methodology and no 

evidence challenges where, on the face of the record, the evidence lacked 

probative value.” Coastal, at 233 (quot. omitted), quoted in City of San 

Antonio v. Pollock, 284 S.W.3d 809, 817 (Tex. 2009), in turn quoted in 

Appellees’ brief, at 30. The difference is that, with a methodology challenge, 

“a court necessarily looks beyond what the expert said to evaluate the 

reliability of the expert’s opinion.” Coastal, at 233 (quot. omitted). But if 

“the testimony is challenged as conclusory or speculative and therefore nonprobative on its face, however, there is no need to go beyond the face of the 

record to test its reliability.” Id.

5
Westfreight’s challenge is limited to the face of the record. See 

Appellant’s brief, at 18-36. Westfreight challenges the sufficiency of what 

Plaintiffs’ experts actually said.

Citing Maritime Overseas Corp. v. Ellis, Plaintiffs argue that allowing 

a legal sufficiency challenge is “unfair” and subjects them “to trial and 

appeal by ambush.” 971 S.W.2d 402, 409-411 (Tex. 1998), quoted in 

Appellees’ brief, at 29. But in Coastal, the Texas Supreme Court 

distinguished Maritime Overseas as a case that required an examination of 

evidence “beyond what the expert said.” Coastal, at 233. The Maritime 

Overseas situation thus required a trial court to exercise “discretion in 

making a determination of whether the expert testimony is sufficiently 

reliable.” Id.

On the other hand, whether opinion testimony is conclusory or 

speculative on its face is a question of law, not a matter of trial court 

discretion. Id. at 232; Whirlpool, at 638. The question does not require a trial 

court to resolve disputed predicate facts. The question is solely one of legal 

sufficiency of the evidence presented at trial. Id.

Coastal emphasized that “Maritime Overseas did not change the 

general rule that bare conclusions – even if unobjected to – cannot constitute 

6
probative evidence,” even when those conclusions come from expert 

witnesses. Coastal, at 233.

That point is underscored in Pollock, a case that Plaintiffs abundantly 

quote. Appellees’ brief, at 30-31. Pollock reiterated that “a party may 

complain that conclusory opinions are legally insufficient evidence to 

support a judgment even if the party did not object to the admission of the 

testimony.” 284 S.W.3d at 816. Pollock quoted extensively from Coastal’s 

discussion of the distinction between “beyond what the expert said” 

challenges (which require an objection) and “face of the record” challenges 

(which do not). Id. at 817, discussing Coastal, at 233.

Pollock also explained that an opinion is not sufficient merely because 

an expert articulates some basis for the opinion. 284 S.W.3d at 817. Thus, 

“even when some basis is offered for an opinion, if that basis does not, on its 

face, support the opinion, the opinion is still conclusory.” Id. 

Pollock cited Volkswagen of America Inc. v. Ramirez as an example. 

Pollock, at 817, discussing Volkswagen, 159 S.W.3d 897, 901-902 (Tex. 

2004). In Volkswagen, the court assumed that “the expert’s methodology 

was reliable” because “the defendant had not objected to it.” Pollock, at 817-

818, discussing Volkswagen, at 910-911. Nonetheless, “taking the record at 

7
face value,” the expert’s opinion was conclusory because the basis for his 

opinion did not adequately support his opinion. Id.

Pollock also shows that an opinion may be conclusory even when an 

expert purports to rely on tests and studies. 284 S.W.3d at 818-820. In 

Pollock, one expert’s opinions were conclusory because the record provided 

“no evidence whatever from which one could infer” a necessary link 

between test results from a well and the expert’s opinions about benzene 

concentration in an adjacent home. Id. at 818-819. A second expert’s 

opinions in Pollock were conclusory, even though that expert relied on 

published studies, because the studies’ conditions were too dissimilar for the 

studies to support the expert’s opinions. Id. at 819-820.

The expert opinions in Pollock were admitted without objection. Id. at 

816. The lack of an objection did not preclude the determination, on appeal, 

that the expert opinions were conclusory and therefore incompetent to 

support a judgment. Id. at 818-820.

As in Coastal, Volkswagen, and Pollock, the challenge in this case is 

on the face of the trial record. Coastal, at 231-233; Volkswagen, at 910-911; 

Pollock, at 817-820. Such a legal sufficiency challenge does not require a 

trial court objection to admissibility. Id.

8
2. Critical to Plaintiffs’ theory is opinion testimony that 

Garza could not perceive the rig’s presence ahead of her.

Plaintiffs’ brief does not mention that Janie Garza’s minivan collided 

into the rear of the Westfreight rig. See, e.g., Appellees’ brief, at 17-19 

(describing the collision). As Plaintiffs’ accident reconstructionist James 

Lock testified, the left front of Garza’s minivan struck the right rear corner 

of the trailer. R.R. 4:43; see also Appellant’s brief, at 3-5 (describing the 

collision).

Plaintiffs’ brief suggests that the Westfreight rig had just “pulled out” 

in front of Garza’s minivan when the accident occurred. See, e.g., Appellees’ 

brief, at 25. Their brief suggests that the right northbound lane was free until 

a mere instant before the collision. Id. at 43.

But that is not what happened. Those suggestions blatantly contradict 

the record.

Plaintiffs’ accident reconstructionist Lock prepared diagrams that 

showed the location of the rig as it backed out of the National Oilwell yard. 

Pl. Exh. 242, 243. Lock relied on physical evidence to prepare the diagrams. 

R.R. 4:40. That physical evidence included “gouge marks” in the roadway 

“where the van at impact was crushed downward into the pavement.” R.R. 

4:40-41, 44. That physical evidence also included police photographs that 

9
showed fresh tire marks. R.R. 4:44-46. Those marks allowed him to “see 

exactly what the path of travel was” for the rig. R.R. 4:44.

Lock’s diagrams show how the rig occupied the right northbound lane 

of Business U.S. Highway 281 during the backing process and while the rig 

was moving forward, up to the moment of collision. Lock explained that 

“the trailer was always in her [Garza’s] lane.” R.R. 4:78.

Lock’s first diagram, excerpted below, shows the location of the rig 

when the rig stopped moving backwards:

Pl. Exh. 242 (Appx. 29).2 A second diagram, excerpted below, shows the 

location of the rig when the collision occurred:

2 “Appx.” references are to the appendix to Westfreight’s opening brief.

10

 
Pl. Exh. 243 (Appx. 30).

The rig did not suddenly move into those positions. Lock testified that 

the “truck was out in the road for over one minute.” R.R. 4:46; see also R.R.

4:57-58 (similar). Plaintiffs’ trucking safety expert David Stopper gave a 

similar opinion: His re-enactment showed that it took “about a minute and 

13 seconds” to back the rig and then have his spotter return from the rear of 

the rig to the cab. R.R. 4:204-205. Bailey said that backing the truck took 

“approximately a minute, minute-and-a-half,” R.R. 5:74-75, and agreed with 

an estimate of 23 seconds to walk from the spotter position to the cab. R.R. 

5:95.

The rig moved slowly forward. As Lock testified, a truck is “a very 

slow-moving vehicle” when it moves forward from a stop. R.R. 4:82. He 

estimated the rig’s speed at 5 miles per hour at the moment of collision. R.R. 

4:79; see also Appellant’s brief, at 5 (collecting testimony on forward 

motion of rig).

11
Garza had a flat, straight approach to the accident site. Appellant’s

brief, at 4-5 (collecting testimony about the approach). Even assuming that a 

small hill affected her view, the hill was a half-mile away, and at the speed 

limit, she still had 25 to 30 seconds to see the rig before the collision. Id.

Critical to Plaintiffs’ liability theory is that Garza could not realize 

that the rig was occupying the right northbound lane. As Westfreight’s 

opening brief discussed, “blindside backing” did not proximately cause the 

accident. Appellant’s brief, at 14-18. That process had ended, and the rig 

was moving forward when the collision occurred. Id. The result of that

process was a slow-moving rig ahead of Garza.

Proximate cause is not established merely because a defendant 

negligently caused an obstruction on a roadway. See id., citing, e.g., Bell v. 

Campbell, 434 S.W.2d 117, 120-121 (Tex. 1968) (overturned trailer on road, 

no proximate cause as matter of law); Fort Worth & Denver City Railway 

Co. v. Garrett, 28 S.W.2d 301, 305 (Tex. Civ. App. 1930, writ ref’d) (rail 

cars blocking road, no proximate cause as matter of law). Such an 

obstruction ordinarily does “no more than furnish the condition” that made a 

collision possible. City of Kemah v. Vela, 149 S.W.3d 199, 204 (Tex. App. –

Houston [14th Dist.] 2004, pet. den.) (collision into rear of patrol car parked 

12
on road); see also Bell, at 120 (similar statement, second collision at 

accident site).

Approaching drivers are expected to recognize conditions on the 

roadway ahead and act accordingly, and they do in the overwhelming 

majority of situations. Even stopped vehicles on highways are “by no means 

an uncommon experience” but something that “any driver at any time must 

anticipate, whether the stopped vehicle is the result of an accident, road 

construction, a car stopped to permit an animal to cross, a snowstorm, 

intense rainfall, or any other such occasional roadway phenomenon.” Erie 

Ins. Exch. v. U.S., 115 F.Supp.2d 493, 496 (M.D. Pa. 2000). In our case, the 

accident scene presented additional reasons to anticipate stopped or slowed 

vehicles, including an intersection with another highway (FM 3376) and the 

driveways for several businesses, all along Garza’s approach.3

A plaintiff must show that a roadway condition, such as a slowed or 

stopped vehicle, was more than a mere “condition” or “but for” cause that 

allowed the collision to occur. See Appellant’s brief, at 13-14, and above, at 

2-3, 12-13. That is true even when the defendant’s negligence created the 

3 See Pl. Exh. 243 (Appx. 30) (diagram of collision site); see also, e.g., Pl. Exh. 192, 

Photo No. 566 (Appx. 26) (photograph of intersection); Pl. Exh. 62 (Appx. 27) (aerial 

photograph of scene); Pl. Exh. 192, Photo No. 615 (Appx. 28) (photograph showing 

intersection and businesses along Garza’s approach to collision site).

13

 
condition. See, e.g., Bell, at 120 (defendants’ negligence was “but for” cause 

but not proximate cause).

To make that additional showing, Plaintiffs offered expert testimony 

that the rig was not sufficiently visible to Garza. That testimony, however, 

was legally insufficient for that purpose. See, e.g., Appellant’s brief, at 18-33 

(discussing that testimony); see also below, at 14-17.

3. Plaintiffs offered only conclusory and speculative opinion 

testimony that the rig was not sufficiently visible to Garza.

Plaintiffs’ trucking safety expert Stopper opined that Garza could not 

see that a rig was ahead of her because the rig’s taillights and side lights 

were “basically dots in space” and meaningless to her. R.R. 4:214; see also 

Appellant’s brief, at 18-19 (additional discussion). Westfreight’s opening 

brief explained why Stopper’s theory was conclusory and speculative, even 

though Stopper purported to base his theory on the adoption of regulations to 

require retroreflective tape on rigs and on two studies of accident rates. 

Appellant’s brief, at 20-30.

As Pollock explained, an opinion can be conclusory or speculative 

even though an expert offers a basis for the opinion. 284 S.W.3d at 817-820. 

Where “the basis offered provides no support, the opinion is merely a 

conclusory statement and cannot be considered probative evidence,

14
regardless of whether there is no objection” at trial to the opinion’s 

admissibility. Id. at 818.

Plaintiffs, in their brief, again offer the adoption of regulations and the 

studies as bases for Stopper’s opinion. See Appellees’ brief, at 18 (tape), 28-

29 (studies). Plaintiffs say, “Reflective tape is important because both the 

United States and Canadian governments have determined that side lights 

alone are not sufficiently recognizable.” Id.at 18. While retroreflective tape 

may help prevent some collisions, such a statement does nothing to explain 

this collision. See Appellant’s brief, at 21 (additional discussion). Such a 

statement, if used as a basis for causation, would also absurdly “lead to the 

conclusion that in the absence of reflective tape, it is impossible for any 

driver to see any commercial transport tractor trailer at night.” Utz v. 

Running & Rolling Trucking Inc., 32 So.3d 450, 467 (Miss. 2010).

4

For many years, however, rigs were operated without retroreflective 

tape, and on the overwhelming majority of occasions, drivers recognized the 

presence of the rigs from their tail and side lights and the reflection of 

4 Plaintiffs attempt to distinguish Utz on various facts and procedural history differences, 

but they never discuss why the just-quoted statement is wrong. Appellees’ brief, at 47.

Plaintiffs also suggest that their experts’ testing distinguishes Utz, but that testing only 

measured the reflectivity of the retroreflective tape and the time needed to perform 

backing and pulling-forward maneuvers. Appellees’ brief, at 47, citing R.R. 4:168-169, 

228-229, 235-240 (tape), 197-198, 203-205 (maneuvers). Their testing did nothing to 

support the conclusion that, despite the rig’s lights, better retroreflective tape was 

necessary to make the rig conspicuous to approaching drivers.

15

 
headlights against the rigs. Many other vehicles are operated without 

retroreflective tape today, and the lack of retroreflective tape does not make 

those vehicles effectively invisible at night.

As to the studies, Plaintiffs now call them “learned treatises.” 

Appellees’ brief, at 29. But Plaintiffs do not explain how the studies support 

Stopper’s opinions. See id.

Nor do the studies support his opinions. Even assuming (without any 

record basis) that the studies considered only similar accidents, the studies 

contradict one another about whether the absence of retroreflective tape 

doubles the risk of a collision (and therefore satisfies the “more likely than 

not” burden of proof). Appellant’s brief, at 27-29 (additional discussion). 

According to Stopper, one study found a 27 percent decrease with the use of 

the tape (a 1.37 relative risk) while the other found up to a 58 percent 

decrease (a 2.38 relative risk). Id. at 24, 27, citing R.R. 4:213. Stopper 

provided no basis for choosing one study over the other, leaving equal 

inferences about (and no basis to decide) which study is more correct. See 

Appellant’s brief, at 28 (additional discussion), citing Jelinek v. Casas, 328 

S.W.3d 526, 532 (Tex. 2010) (under equal-inference rule, “neither fact may 

be inferred”).

16
And that was only one of multiple reasons why the studies do not 

support Stopper’s conclusion. See also Appellant’s brief, at 23-30 (additional 

reasons).

An expert’s reliance on studies does not ensure the legal sufficiency 

of his opinions. As Pollock shows, a legal sufficiency challenge to an 

expert’s reliance on studies must be sustained where, on the face of the 

record, the studies fail to support the expert’s opinion. 284 S.W.3d at 819-

820. That is the situation here.

Beyond the fleeting mentions of the regulations and the two studies, 

Plaintiffs say only that “the expert opinions were not bald assertions without 

explanation or support.” Appellees’ brief, at 32-33. Plaintiffs do not identify 

the supposed “explanation or support.” Like the opinions themselves, 

Plaintiffs’ defense of those opinions is conclusory.

Plaintiffs’ brief also offers this opinion from their accident 

reconstructionist Lock: “And I don’t care whether you have lights on or I 

don’t care whether or not it doesn’t. It’s going to get hit because it creates a 

very hazardous situation.” R.R. 4:83, quoted in Appellees’ brief, at 22. This 

opinion too is conclusory. Lock offered no reason – not even a tangentially 

related study – to support his bald assertion of certainty.

17
D. No other evidence shows that Westfreight’s conduct created more 

than a condition necessary for the collision to occur.

A defendant’s negligence, resulting in a stopped or slowed vehicle or 

other obstruction in a roadway, may create a condition necessary for an 

accident to occur, but such negligence is not automatically the legal cause of 

the accident. See, e.g., Bell, 434 S.W.2d at 120-121 (citing additional cases). 

Drivers must anticipate slow-moving and stopped vehicles, for example, 

because they are “by no means an uncommon experience.” Erie, 115 F. 

Supp. 2d at 495. Something more is required to raise the defendant’s 

negligence to a “substantial factor” in an approaching driver’s failure to 

recognize the condition.

If the negligence results in a concealed obstruction, the concealment 

may suffice to raise the defendant’s negligence from a mere condition to a 

substantial factor in causing the accident. See, e.g., Tex. Elec. Co-op. v. 

Dillard, 171 S.W.3d 201, 208 (Tex. App. – Tyler 2005, no pet.) (unmarked 

carcass of dead cow on dark road). On the other hand, if the slow or stopped

vehicle or other obstruction is visible to approaching traffic at a distance that 

allows a timely response, the negligence that caused the obstruction is not, 

as a matter of law, a legal cause of the accident. See, e.g., Bell, 434 S.W.2d 

at 120-121 (citing additional cases, overturned trailer on road); City of 

Kemah, 149 S.W.3d at 204 (patrol cars parked on road); Fitzsimmons v. 

18
Brake Check Inc., 832 S.W.2d 446, 449-450 (Tex. App. – Houston [14th

Dist.] 1992, no writ) (lead vehicle rear-ended after slowing for loose wheel 

on roadway).

As discussed above and in Westfreight’s opening brief, Plaintiffs 

cannot rely on the opinion testimony about Garza’s purported inability to

“connect the dots” formed by the rig’s taillights and side lights. See above, at 

14-17, and Appellant’s brief, at 18-33.

Nor do Plaintiffs’ contentions about “blindside backing” suffice. 

Although backing onto a highway presents risks “if there is traffic on that 

highway,” R.R. 5:187, Business 281 was empty except for Garza’s car, 

which was at least a minute away when the longer-than-one-minute backing 

process began. See above, at 11 (collecting testimony about duration of 

backing process). If Garza were traveling at the speed limit, which increased

from 60 miles per hour to 70 miles per hour during the approach, R.R. 4:80, 

6:25, she was at least one mile away when the backing process started. 

Westfreight’s Rainsford Johnston did not see any traffic while he acted as 

spotter. R.R. 5:73-76, 95, 100-101. Although Plaintiffs emphasize

Westfreight driver Jeffrey Bailey’s testimony about an “extreme degree of 

risk” being possible to some “extent,” that testimony pertained to a situation 

19
(“if there is traffic on that highway”) that did not exist. R.R. 5:187; see also 

Appellees’ brief, at 9, 35.

5

A vehicle backing onto a roadway is not unforeseeable to an 

approaching driver. The Texas Transportation Code permits the backing of 

vehicles onto most roadways, including Business 281.6 Even assuming that 

it is negligent to back a vehicle onto a roadway when forward egress is 

possible, trucks backing onto roadways is not unheard of on routes, like 

Business 281, that serve commercial and industrial areas.

But ultimately, “blindside backing” could not be a proximate cause 

because the backing process had completed, and the rig was moving

forward. See Appellant’s brief, at 14-18 (additional discussion). A slowmoving rig could be in a similar position on the roadway for reasons 

unrelated to “blindside backing,” such as a lane change or the completion of 

5 Plaintiffs’ excerpts of that testimony do not answer this question: An extreme degree of 

risk of what? Appellees’ brief, at 9, 35.

6 Section 545.415 of that Code states:

Sec. 545.415. BACKING A VEHICLE. (a) An operator may not 

back the vehicle unless the movement can be made safely and 

without interference with other traffic.

(b) An operator may not back the vehicle on a shoulder or 

roadway of a limited-access or controlled-access highway.

Business U.S. Highway 281 is not a “limited-access or controlled-access highway.” 

Compare TEX. TRANSP. CODE §541.302(8) (defining those terms) with above, at 13 fn. 3

(diagrams and photographs of scene).

20

 
a turn from the adjacent intersection. Id. The causation issue does not turn on 

“blindside backing” but on Garza’s failure to react to the rig’s presence 

ahead of her.7

Plaintiffs also fault Johnston for not staying “at his post as the spotter 

until the Westfreight truck was in a safe position off to the shoulder” of the 

road. Appellees’ brief, at 42. But Plaintiffs offered no evidence that Johnston 

would have prevented the collision from that position – even if Johnston 

were equipped with a reflective vest and a flashlight, as Plaintiffs claim he 

should have been. See Appellees’ brief, at 42, 44-45.

A similar contention was rejected in Texas & New Orleans Railroad 

Co. v. Compton, 136 S.W.2d 1113 (Tex. 1940). In that case, the plaintiff 

asserted that a statutorily required warning sign would have prevented a 

collision of the deceased’s vehicle with a train. Id. at 1115. The court agreed 

with opinions in earlier cases that, if a motorist “could not see the moving 

[train] cars ahead of him” and timely react, there was no reason to believe 

that a sign would have made any difference. Id.at 1115. The negligence in 

7 In describing “blindside backing,” Plaintiffs’ brief refers to a “ditch in the median 

separating the northbound and southbound lanes.” Appellees’ brief, at 7. Business 281 

had a center turn lane but no median separating its northbound and southbound lanes, let 

alone a ditch in a median. See, e.g., Pl. Exh. 62 (Appx. 27) (aerial view of accident site); 

see also above, at 13 fn. 3 (additional diagrams and photographs of accident site).

21

 
not posting the sign was, as a matter of law, not a proximate cause of the 

collision. Id.

Garza did not react to a lighted tractor-trailer rig ahead of her, even 

though she had a clear, straight, and flat approach for at least 25 to 30 

seconds at the speed limit. Appellant’s brief, at 4-5 (discussing approach).8

Given that she did not react to the rig’s presence, there is no reason to 

believe that she would have reacted to the presence of a man standing next 

to the rig with a reflective vest and a flashlight.

Plaintiffs also argue that, because Johnston did not stay to “spot[] 

Garza oncoming in the right northbound lane, Bailey pulled the Westfreight 

truck further into that lane” and thereby caused the accident. Appellees’ 

brief, at 43. At another point, Plaintiffs assert that it was “important for 

Bailey ... to ensure that Janie Garza’s lane of traffic was clear before he 

accelerated the Westfreight truck into that lane[.]” Id. at 13. These

arguments make no sense when compared to the record. As Plaintiffs’ 

accident reconstructionist Lock testified, and as his diagrams based on the 

physical evidence show, “the trailer was always in her lane.” R.R. 4:78; Pl. 

8 Plaintiffs claim that “Garza tried to take evasive action,” Appellees’ brief, at 18, but that 

evasive action is not identified in either their brief or on the record page that they offer. 

Id., citing R.R. 4:316. The only possible “evasive action” might be a too-late decrease in 

speed as the collision occurred, Appellees’ brief, at 18, but, as Lock testified, the 

evidence provides no way to estimate Garza’s speed during her approach. R.R. 4:117.

22

 
Exh. 242-243 (Appx. 29-30); see also above, at 9-11 (additional discussion).

The rig did not suddenly pull into Garza’s lane but had been there for about 

a minute, if not more. See above, at 9-11. Not only do these arguments lack 

any nonspeculative basis, they contradict the evidence.9

E. Plaintiffs have not ruled out other plausible explanations, such as 

driver inattention, as the sole or superseding cause of the accident.

Westfreight’s opening brief explained that, with at least 25 to 30 

seconds of visible approach at the speed limit, Garza had plenty of time to 

react to the rig’s presence in the road. Appellant’s brief, at 33-34. That brief 

noted that driver inattention, driver distraction, and fatigue are commonly 

known and appreciated causes of collisions into the rear of another vehicle. 

Id. at 35. Westfreight noted the lack of any “basis for ruling out these 

possible causes as the sole legal cause of the accident.” Id. at 35-36.

Plaintiffs do not respond with any argument to rule out these other 

causes.

Plaintiffs’ statement of facts offers that “Garza was not speeding or on 

her cellphone” at the time. Appellees’ brief, at 18. Such a statement does not 

9 Plaintiffs also quote testimony of Westfreight’s trucking safety expert Barry Brunstein 

and safety director Semeschuk that criticized the decision to back out of the yard. 

Appellees’ brief, at 43, quoting R.R. 5:204-205, 276. But Plaintiffs quote the testimony 

out of context, erroneously leaving the impression that these witnesses were referring to a 

“start from a stopped position” on the roadway, as opposed to referring to a “stopped 

position” before backing onto the roadway. R.R. 5:204-205; see also R.R. 5:276. Nor 

does anything in the quoted testimony address the critical issue of proximate cause.

23

 
rule out distraction from other sources, let alone driver inattention and 

fatigue. Nor is the statement supported by the evidence. While there is no 

evidence that Garza was speeding, there is also no evidence that she was not 

speeding. As Lock explained, “there’s no way to physically say in a 

scientific basis what her pre-crash travel speed was.” R.R. 4:117. He could 

testify about Garza’s speed only at the moment of impact. Id. Cell phone 

records showed only that Garza was not on a call and had neither just sent or 

received a text. R.R. 4:37, 155-156; Pl. Exh. 268. The records could not rule 

out other uses of Garza’s cell phone, part of which was on her minivan’s 

dashboard after the accident. R.R. 4:342.

Plaintiffs’ “failure to explain or adequately disprove alternative 

theories of causation” makes their own theory “speculative and conclusory” 

and therefore legally insufficient to support a judgment. Wal-Mart Stores 

Inc. v. Merrell, 313 S.W.3d 837, 840 (Tex. 2010) (failure to rule out other 

possible causes of fire, evidence held legally insufficient).

F. The foreseeability component is also absent.

While the parties’ arguments focus on the cause-in-fact component of 

proximate cause, the foreseeability component is also a problem. The 

following principle applies to our case:

24
In applying the test of foreseeability to situations where a 

negligently created pre-existing condition combines with 

a later act of negligence causing an injury, there is a 

distinction between a situation in which one has created a 

dangerous condition and a later actor observes, or by the 

circumstances should have observed, the existence of the 

dangerous condition and a situation in which the 

dangerous condition is not apparent and cannot be 

observed by the actor. In regard to the first situation, the 

intervening act interrupts the natural sequence of the 

events and cuts off the legal effect of the negligence of 

the initial actor. This is based upon the premise that it is 

not reasonable to foresee or expect that one who actually 

becomes cognizant of a dangerous condition in ample 

time to avert the injury will fail to do so.

Wolf v. Friedman Steel Sales Inc., 717 S.W.2d 669, 673 (Tex. App. –

Texarkana 1986, writ ref’d n.r.e.).

Rather than address this principle, Plaintiffs focus on the “obvious 

factual dissimilarities” of Wolf. Appellees’ brief, at 39-40. Plaintiffs do not

argue that the principle is inapplicable or wrong.

Plaintiffs quote conclusory testimony from Lock that it was “certainly 

a foreseeable hazard” to block the lanes. Appellees’ brief, at 40, quoting R.R. 

4:81-82. But Lock did not explain why it was reasonably foreseeable that a 

driver – who was at least a minute away when the backing process started 

and who had (at the speed limit) at least 25 to 30 seconds of clear, flat, 

straight approach – would nonetheless run into the back of a lighted rig. See 

above, at 9-12. Plaintiffs also cite Bailey’s testimony that, “an extreme 

25
degree of risk” may exist “if there is traffic on that highway[.]” Appellees’ 

brief, at 40, quoting R.R. 5:187-188. But there was no traffic on the highway 

when Bailey began the backing process, see above, at 19-20, and none of his 

testimony establishes that it was foreseeable that a driver would fail to 

recognize the rig during the approach.

II. Plaintiffs are not entitled to a new trial.

A. Plaintiffs’ new trial complaint is moot because the evidence does 

not support Westfreight’s liability.

As discussed in Part I of this argument section, the evidence is legally 

insufficient to satisfy the proximate cause element of Plaintiffs’ negligence 

claim against Westfreight. That legal insufficiency requires a reversal of the 

trial court’s judgment and the rendering of a judgment that Plaintiffs take 

nothing. Appellant’s brief, at 38; see also TEX. R. APP. P. 43.3.

Plaintiffs’ cross-appeal challenges “the jury’s apportionment of fault.” 

Appellees’ brief, at 48. But to justify an apportionment of fault question, the 

evidence must be legally sufficient to support Westfreight’s liability. TEX.

CIV. PRAC. & REM. CODE §33.003(b) (requiring “sufficient evidence to 

support the submission” of a party in an apportionment question). 

Any challenge to the jury’s answer to the apportionment question is 

moot because the challenge cannot affect the outcome, and any error 

premised on the jury’s answer is harmless. Compare Shupe v. Lingafelter, 

26
192 S.W.3d 577, 580 (Tex. 2006) (negligent entrustment instruction could 

not affect outcome because driver was not negligent).

B. A new trial may not be granted for factual insufficiency of the 

evidence.

1. Any factual insufficiency point is waived by inadequate 

briefing.

Plaintiffs argue that the evidence must be factually insufficient to 

support the jury’s apportionment of responsibility because both sides 

challenged that apportionment in post-trial motions. Appellees’ brief, at 23-

24, 48. But the parties’ challenges were different. Plaintiffs argued that the 

evidence was factually and legally insufficient to support a finding that 

Garza was 20 percent responsible. C.R. 587. Westfreight argued a contrary 

proposition: that the evidence was legally insufficient to support a finding 

that Garza was less than 51 percent responsible. C.R. 594.10 In other words, 

Plaintiffs asserted that 20 percent was too much, and Westfreight asserted 

that 20 percent was far too little.

Plaintiffs offer no authority for the proposition that a new trial must be 

granted merely because each side raised a different sufficiency-of-theevidence challenge to an apportionment question. An appellate brief requires 

10 Westfreight did not raise a factual sufficiency point and did not request a new trial. 

C.R. 594. By its complaint, Westfreight only sought a judgment notwithstanding the 

verdict. Id.

27

 
“appropriate citations to authorities and to the record.” TEX. R. APP. P.

38.1(i). Plaintiffs only cite Jackson v. Williams Brothers Construction Co., 

and they do so only for the principle that an apportionment finding must 

have support in the record. 364 S.W.3d 317, 325 (Tex. App. – Houston [1st

Dist.] 2011, pet. den.), cited in Appellees’ brief, at 48. An issue is waived 

where, as here, an appellant “cites only to a single non-controlling case.” 

Abdelnour v. Mid Natl. Holdings Inc., 190 S.W.3d 237, 241 (Tex. App. –

Houston [1st Dist.] 2006, no pet.).

Nor have Plaintiffs adequately briefed any other basis for a factual 

insufficiency challenge. They make no argument to explain why the 

evidence is factually insufficient. See Appellees’ brief, at 47-49 (new trial 

arguments).

“The law is clear that bare assertions of error, without argument or 

authority, waive error.” Teter v. Comm’n for Lawyer Discipline, 261 S.W.3d 

796, 799 (Tex. App. – Dallas 2008, no pet.); see also TEX. R. APP. P. 38.1(i). 

That rule applies to factual sufficiency complaints. ERI Consulting 

Engineers Inc. v. Swinnea, 318 S.W.3d 867, 880 (Tex. 2010). 

Referring to factual sufficiency in the statement of issues and 

mentioning the factual sufficiency standard of review is not enough. Garza 

v. Garza, No. 4-11-310-CV, 2013 WL 749727, *3 (Tex. App. – San Antonio 

28
Feb. 27, 2013, no pet.). But that is all Plaintiffs have done. Appellees’ brief, 

at xi, 33-34. As a result, they have waived any factual sufficiency complaint.

2. The evidence is factually sufficient to support the jury’s 

negligence and apportionment findings against Garza.

After an approach that provided at least 25 to 30 seconds of visibility 

at the speed limit, Garza drove her minivan into the rear of a tractor-trailer 

rig. Appellant’s brief, at 3-5 (describing scene and collision). The rig was lit 

with more lights than federal regulations require, and nothing outside 

Garza’s minivan obstructed her view during the clear, flat, and straight 

approach. Id.; see also id. at 18 (describing lights). 

Factual sufficiency review requires a court to “consider and weigh all 

the evidence,” and a court “should set aside the verdict only if it is so 

contrary to the overwhelming weight of the evidence as to be clearly wrong 

and unjust.” Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Assuming that 

the evidence were sufficient to support Westfreight’s liability, the evidence 

is also factually sufficient to support a finding that Garza’s negligence made 

her 20 percent responsible for the collision.

29
C. A new trial may not be granted for improper witness coaching.

1. Plaintiffs did not preserve this issue in the trial court.

Plaintiffs argue for a new trial “in the interests of justice” because 

Westfreight’s counsel allegedly coached a witness. Appellees’ brief, at 48. 

Plaintiffs forfeited the issue by not immediately seeking relief during 

the trial. R.R. 5:103-104 (no motion or objection). A complaint about a trial 

participant’s misconduct requires a timely objection, so that the trial court 

has the opportunity to consider whether to address the misconduct with an 

instruction, a mistrial, or another appropriate remedy. Alamo Carriage Serv. 

Inc. v. City of San Antonio, 768 S.W.2d 937, 943 (Tex. App. – San Antonio 

1989, no writ) (alleged jury misconduct, staff of party’s counsel arranged for 

juror’s taxi). “[I]t would be wantonly unfair to allow a litigant to take his 

chances with the jury and later complain of misconduct when he is unhappy 

with the result.” Id.

Even assuming that the issue were still viable, Plaintiffs did not 

preserve the issue in their motion for new trial. C.R. 576-582. 

Because the interests of justice “is never an independently sufficient 

reason for granting a new trial,” a trial court must give a more specific

reason for doing so. In re United Scaffolding Inc., 377 S.W.3d 685, 689-690 

(Tex. 2012). To allow a trial court to satisfy that requirement, a motion for 

30
new trial must give each specific reason why a new trial is sought in the 

interests of justice. Otherwise, an appellant cannot show that the reason 

argued on appeal was argued to the trial court. TEX. R. APP. P. 33.1(a). 

Moreover, the rules for new trial motions require grounds that “can be 

clearly identified and understood” and that are not merely “couched in 

general terms.” TEX. R. CIV. P. 321, 322.

Because Plaintiffs’ motion for new trial did not raise the issue of 

witness coaching, they have not preserved the issue for appeal. TEX. R. APP.

P. 33.1(a).

2. Plaintiffs’ inadequate briefing waived the issue.

As discussed above, at 27-29, a complaint is waived when an 

appellant fails to cite appropriate authority to support the complaint. 

Plaintiffs cite no authority to support their contention that witness coaching 

requires a new trial, let alone on a record similar to ours. Appellees’ brief, at 

48. Plaintiffs only cite an opinion for the proposition that appellate courts 

once had broad discretion to grant new trials in the interests of justice. Id.; 

but see In re Toyota Motor Sales U.S.A. Inc., 407 S.W.3d 746, 758-759

(Tex. 2013) (grants of new trials are subject to “merits-based review”). That 

tangential citation does not satisfy Plaintiffs’ burden of providing 

“appropriate citations to authorities” and results in waiver of the issue. TEX.

31
R. APP. P. 38.1(i); see also above, at 27-29 (additional briefing-waiver 

discussion).

3. The record does not show that any impropriety occurred.

Plaintiffs allege that Westfreight’s trial counsel Christopher Lowrance 

coached Johnston to deny that his conduct created an “extreme risk” for 

motorists. Appellees’ brief, at 48. Johnston testified that he did not perceive 

“an extreme risk of a collision or an accident” from backing the rig onto 

Business 281. R.R. 5:75. He also testified that he did not believe that his and 

Bailey’s conduct put “any motorist who might be in that road at an extreme 

risk ... .” R.R. 5:100.

Johnston spoke with Lowrance during a break, and Plaintiffs’ counsel 

asked Johnston about the conversation. R.R. 5:102-103. According to 

Johnston, Lowrance said that he would ask a question about putting 

motorists in extreme risk and that Johnston “should say” that he did not do 

so. R.R. 5:103.

Plaintiffs’ counsel did not ask any more questions. R.R. 5:103-104. 

Critically absent is any question about whether the alleged coaching affected 

Johnston’s answer. Nothing in the record shows that Johnston’s answer was 

anything but his honest opinion.

32
Plaintiffs’ complaint about witness coaching is without merit. There is 

no evidence of any impropriety.

4. Even assuming that improper coaching occurred, 

Plaintiffs have not shown that the trial court abused its 

discretion by denying a new trial.

A trial court does not abuse its discretion by denying a motion for new 

trial when newly discovered evidence is “cumulative,” used for “purposes of 

impeachment,” or not “so material it would probably produce a different 

result if a new trial were granted.” Watts v. Watts, 396 S.W.3d 19, 23 (Tex. 

App. – San Antonio 2012, no pet.) (quot. omitted). Although our situation 

differs, in that the alleged witness coaching was discussed during the trial, 

these principles are no less applicable.

Plaintiffs cite multiple witnesses’ testimony about the dangers of 

“blindside backing.” Appellees’ brief, at 6-17. Even assuming that Johnston 

were to give a different answer to the “extreme risk” question, that answer 

would be merely cumulative. The trial court did not abuse its discretion by 

refusing to grant a new trial on the possibility that a jury may hear different, 

but nonetheless cumulative, testimony from Johnston. Watts, at 23-24 (no 

abuse of discretion, new evidence was cumulative).

A trial court could also reasonably infer that Plaintiffs’ purpose in 

putting the coaching before the jury was impeachment. R.R. 5:102-104.

33
Plaintiffs’ counsel asked Johnston about the witness coaching but not about 

whether he gave an untrue answer. Id. Plaintiffs, who presented two expert 

witnesses (Lock and Stopper) on liability issues, were not relying on 

Johnston’s opinions about risk to establish their case. The denial of a new 

trial under these circumstances is not an abuse of discretion. See, e.g., Ski 

River Development Inc. v. McCalla, 167 S.W.3d 121, 132 (Tex. App. –

Waco 2005, pet. den.) (no abuse of discretion, impeachment was apparent 

purpose for presenting evidence that attorney asked witness “to forget some 

things”).

Plaintiffs also have not shown that Johnston’s opinion about “extreme 

risk” was “so material that it would probably produce a different result in a 

new trial.” Watts, at 23. While classification of a risk as “extreme” may 

matter where a charge asks about gross negligence (which requires an 

“extreme” risk), TEX. CIV. PRAC. & REM. CODE §41.001(11)(A), nothing in 

this case’s charge required such a classification. C.R. 555, 557-558. 

Moreover, given the totality of the evidence received, the effect of one 

opinion from Johnston is merely speculative in a situation where “probably” 

is the standard. Watts, at 23; see also TEX. R. APP. P. 44.1(a).

34
Even assuming that improper witness coaching occurred, and that 

Plaintiffs preserved their complaint, Plaintiffs have failed to show an 

entitlement to a new trial.

CONCLUSION AND PRAYER FOR RELIEF

The evidence is legally insufficient to show that Westfreight’s 

conduct was a proximate cause of the collision. The evidence does no more 

than show that Westfreight’s conduct, which placed a slow-moving rig onto 

Business 281, did more than merely furnish a condition that made a collision 

possible. See above, at 2-26, and Appellant’s brief, at 10-38.

The trial court erred by overruling Westfreight’s objection to the jury 

charge and again by denying Westfreight’s motion for judgment 

notwithstanding the verdict, each of which raised the lack of evidence to 

support a finding of proximate causation. Appellant’s brief, at 38.

Westfreight asks the Court for the relief that Westfreight requested in 

its opening brief. Westfreight also asks that the Court deny the relief that 

Plaintiffs request by their cross-appeal.

35
Respectfully submitted,

/s/ Brian Miller

Brian Miller (lead)

State Bar No. 24002607

Christopher Lowrance

State Bar No. 00784502

ROYSTON RAYZOR

VICKERY & WILLIAMS L.L.P.

Frost Bank Plaza, Suite 1300

802 N. Carancahua St.

Corpus Christi, TX 78401

Tel. No. (361) 884-8808

Fax No. (361) 884-7261

E-mail: 

brian.miller@roystonlaw.com, 

chris.lowrance@roystonlaw.com

Attorneys for appellant 

Westfreight Systems Inc.

36
CERTIFICATE OF SERVICE

A true copy of this document was served using the electronic filing 

and service system (for service on registered users) and as shown below on 

January 9, 2015.

Via e-mail to 

jgsanger@edwardsfirm.com

John Blaise Gsanger

THE EDWARDS LAW FIRM

802 N. Carancahua St., Suite 1400

Corpus Christi, TX 78401

Lead appellate counsel for Plaintiffs

Via e-mail to 

khood@fabregahood.com

Kevin L. Hood

FABREGA HOOD L.L.P.

1800 St. James Pl., Suite 304

Houston, TX 77056

Counsel for additional trial court 

defendant National Oilwell Varco 

L.P.

Via e-mail to dbright@swhhb.com

David Bright

SICO WHITE HOELSCHER 

HARRIS & BRAUGH L.L.P.

802 N. Carancahua St., Suite 900

Corpus Christi, TX 78401

Additional appellate counsel for 

Plaintiffs

Via e-mail to crkeener@aol.com

Craig R. Keener

CRAIG R. KEENER P.C.

1005 Heights Blvd.

Houston, TX 77092

Counsel for additional trial court 

defendant National Oilwell Varco 

L.P.

/s/ Brian Miller

Brian Miller

37
CERTIFICATE OF WORD-COUNT COMPLIANCE

I certify that this document complies with Rule of Appellate 

Procedure 9.4. Excluding the portions listed in Rule 9.4(i)(1), and according 

to the word count of the computer program used, this document contains 

7,434 words.

/s/ Brian Miller

Brian Miller

38