Affirmed and Opinion filed December 31 , 2020.

In The 

## Fourteenth Court of Appeals

NO. 14

- 18

- 01075

- CV

MYRA LISA WELLONS, INDIVIDUALLY AND AS THE REPRESENTATIVE OF THE ESTATE OF JASON WELLONS, DECEASED, AN D MEGAN WELLONS , Appellant s
V.

VALE RO R EF I NING

— NEW ORLEANS, L.L.C

. , Appellee

On Appeal from the 113th District Court

Harris County, Texas Trial Court Cause No. 2015

- 36186

O P I N I O N

Th is case involves a conflict

- of

- laws dispute in a wrongful dea t h a ction
where the decedent , Jason Wellons, was co vered by workers ’ compensation
insurance

. Appellants Myra Lisa W ellons, Jason ’ s wi dow , and Megan Wellons,
Jason ’ s daughter, appeal from the trial court ’ s determination that Louisiana law should apply t o th e claims against appellee Val ero Refining

— New Orlea ns, L.L.C. ( “ VRNO ” ) and from the court ’ s final take

- nothing judgment favoring VRNO

.2

Jason ’ s injuries occurred at VRNO ’ s refinery in St. Charles Parrish , Louisiana, and
he later died in St. Charles Parish. However , Jason was domiciled and hired in
Tex as , an d appellan ts received Texas workers ’ co mpensation benefits

. In addition to asser

t ing that the trial court erred in applying Louisiana law, appellants also assert that the trial court erred in pro hibiting one of their expert
witnesse s from te sti f

ying a s to th e i ntent of VRNO ’ s person nel and that VRNO ’ s counsel made incurably improper statements du ring closing argument. We aff irm.
Background

Jason was hired by J.V. Industrial Companies, Ltd. ( “ JVIC ” ) , a Texas

corp oration, to w o r

k a turn aroun d at VRNO ’ s St. C ha rles R efinery in Norco,
Louisiana. Jason was a Texas resident and was hired in Texas but specifically for
the turnaround in Louisiana.

On March 1 7 , 201 5 , Jason was working on a pipe rack at the refinery

approx imately 30 fee t above t he gr ound while w earin g an im p ermeable chemical suit with the wrists and ankles taped

. Whe n Jason becam e overheated and collapsed , VRNO emergency personnel responded to the situation . Jason w as lowered from the pipe r ack and taken to a local hospi tal , wher e he died the nex t day

. An au topsy concluded that Jason died as the result of heatstr oke. Appellants
contend that th e delays in responding to the situation and failure to timely and properly treat Jason ’ s condition , i ncluding failing to quickly lower his body

t emper ature, led t o his d eath. VRNO asserts that its p erson nel worked as quickly

a nd efficiently as possible u nder difficult circumstances. Af ter Jason ’ s death, appel lants received Texas workers ’ compensation surv ivor benefits with JVIC
listed as the insure d emp loyer o n the c laim documents

. Appellants sued VRNO , JVIC, Valero Services, Inc. , and several other3

defendants in a Texas cour t, bringing a wrongful

- death action and allegi ng negli gen ce and gross negligence. By the time the case reached the jury, only
VRNO remaine d a s a defen dant. A ft er extensive briefin g an d argument by t he partie s , the trial court determined that the claims against VRNO should be
d e term i ned under the subs tantive laws o f Louisiana

— which permit recovery for wrongful death when a deceden t i s covered by w orkers ’ compensation only when
th e de fendant com mi tt ed inte nt ional conduct

— and not the substantive laws of
Texas , which permit recovery of exemplary damages i n such cases for gross negligenc e

. During tr ial, after an objection by VRNO, the tria l judge ru le d that one of appellants ’ expert witnesses, Dr. John McManus, would not be permitted to testify regarding the subjective intent of VRNO or its employees . Duri ng closing argument, VRNO ’ s counsel made arguments concerning the fact appellants had to
prov e i nt entiona l conduct

. A t one point, a ppellant s ’ coun sel tried to object to the argument, but th e trial judge overruled the objection and told counsel to sit down.
Quest ion no. 1 in the jury charge asked :
Did the intentional conduct , if any, of Valero Refi nin g

— New Orleans, LLC proxim ately cau se Jason Wellons ’ death? In considering the conduct of Valero Refining

— New Orleans, L L C , consider only Valero Refining

- New Orl eans, L L C ’s, conduct dealing with the rescue and providing emergency medical care after Mr [. ] W el lon s ’ injury became k nown

. “Inte ntional c onduct” means that one or more Valero Refining

—

New Orleans, LLC emplo yee either ( 1 ) consciously desired the physical result of his actions or (2) knew that the result is substantially ce rtain to foll ow from his ac ti ons

. If a Val ero Refini ng

— New Or leans, LL C employee knew that the consequences are certain, or substantially certain, to result from his actions, and still go es [sic] ahead, it is treated by the law as if Valero had in fact desired t o produce the result

.4 “ S ubstanti ally certa in ” means v irtually sure, in evitable and incapable of failing

. “Proximate cause” means a cause that was a substantial factor in bringing ab out an event, and without which cause such event would not have occurred [

. ] I n order to be a pro xi mat e cause, the act o r omission co mplain ed of mus t be such that a person using the degree of care required of him would have foreseen that the event, or some similar event , might reasonably result therefrom

. There may be more than one proximate ca use of an e vent

. On a 10

- 2 vo te, t he j ury found that the intentional conduct of VRNO ’ s employees did not proximately cause Jason ’ s death. Because of that answer, t he jury was not required to and did not answer any other questions.

D iscussi on

I. C onflict of L aw s

I n t hei r first issue, appellants contend t hat the trial cour t erred in hold ing that
Lou isiana law gover

n ed the claims against VRNO

. We will first explai n the
standards by which we determine which law to apply , and then we will a pply those
stand ards to the fa c ts o f this case

. A. Governin g Law

We need not decide which state ’ s laws apply unless those laws conflict. Sonat Expl. Co. v. Cu dd Pressure Control, I nc. , 271 S.W.3d 228, 231 (Tex. 2008)

. The workers ’ compensati on laws o f both Texas and Louis iana con tain e x clus ive remedy prov isions th at limit the claims available in wrongful death actions when
the decedent was covered by workers ’ compensation. See Tex. Labor Code § 408.001(a)

- (b) ; La. Rev. Stat. § 23:1032. Under the Texas statu te,
[r] ecovery o f wor

ker s ’ c om p ensa tion benefits i s the exc lusive remedy of an employee covered by workers ’ compensation insurance coverage or a legal beneficiary against the emplo yer or an a gent or5

employee of the employer for the death of or a w ork

- related injury susta ined by the e mp loyee [except for] the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose dea th was ca used b y an intentional act or omissio n of the employer o r by the employer ’ s gross negligence

. Tex. Labor Code § 408 .0 01(a)

- (b)

. Under the Lo uisiana statute,

e xcept for intentional acts

. . . the rights and remedies he rein granted to an employee or h is depe ndent on account of an inju ry, or
com pens able sickness o r disease for which he is entitled to compensation under th is Chapter, shall be exclusive of all other rights, remedies, and claims for damages, including but no t limited to punitive or exemp la ry dama ges

. L a. Rev. Stat. § 23:10 32 A (1)(a). The parties agree, as do we , that these laws
conflict in that , as applied to t o day ’ s case, the exception to the exclusive remedies provision of the Louisiana statute includes only liability resulting from an intentional act , whereas the exception to the exclusive remedies provision of the
Texas statute permits the recovery of exemp la ry damages i f a n employee ’ s dea th

was ca used b y the employer ’ s in tentional con duct or by the employer ’ s gross negligence

. See Tex. Labor Code § 408.001(a)

- (b) ; L a. Rev. Stat. § 23:10 32 ( A ) , ( B )

. The issue of whi ch st ate ’ s substant ive law applies i s a que st i on of law for the
court to decide. Torrington Co. v. Stutzman , 46 S.W.3d 829 , 848 (Tex. 2000). Thus, we review de novo the trial court ’ s decision to apply Louisiana law. See M n. Mining & M

fg . C o. v. Nishika Ltd. , 955 S.W. 2d 85 3, 856 (Te x. 19 96) ; Greenbe rg Traurig of N

. Y

. , P.C. v. Moody , 161 S.W.3d 56, 70 (Tex. App.

— Houston [ 14th Dist.] 2004 , no pet. )

. We note, however, that determining the contacts to be
considered in resolving the legal qu es tio n m ay entail issues of f act. Sona t Expl. , 2 71 S.W.3d at 231

. W hen there is a conflict of laws, Texas courts use the Restatement ’s “m o st6

significant relationship” test to determine which law to apply

. See Restatement (Second) of Conflict of Laws §§ 6, 14 5 (1971); Hughes Wood Prods

. , Inc . v. Wagne r , 18 S.W.3d 202, 2 0 5 (Tex. 2000). Section 6 of the Restatement sets out the
relevant general factors to consider when determining which law to apply. 1 Section
145 s ets forth the factual matters to be considere d w hen applying the principles of

se ction 6 in a tort case. Hughe s W ood , 1 8 S.W.3d at 20 5

. 2

T he Texas Supreme Court has also instructed on numerous occ asions that

more spec ific Restatement provisions can apply in determining conflicts

- of

- law s issues in particu l ar contexts. See id . at 206 n

. 2 (li sting case s and contexts)

. I n Hughes W

ood , the court specifica lly stated that Restatement section 184 provides the standards by which a court is to determine immunity from a tort suit when an employee is covered by workers ’ compensation insurance. Id . at 205

- 06

. That

1 The general fac tors l isted in section 6 include: ( a) the needs of the interstate and interna tional systems, ( b) the re levant polici es of the forum , ( c) the re levant policies o f other interested sta te s an d the relative interests of those states in t he d etermina tion of the parti cular issue, ( d) the protecti on of justified expectations, ( e) the basic policies unde r lying t he particular fi eld of law, ( f) cert ainty, predictability an d unifo rmity of result , and ( g) ease in the determina tio n and application of the law to be applied.
Re st atement (Second) of Conflict of Laws § 6(2)

.

2 The factual matters listed in s ection 145 inc lud e: ( a) the pl ace where the i njury occurr ed, ( b) the place where the conduct causing t he injury occurred, ( c) t he domicil, residenc e, n ationali ty, place of inco rporation and place of business of the parties, and ( d) the place where the relationsh i p, i f a ny, between the parties is cent ered.
R est a t ement (S econd) of Confli ct of Laws § 145(2)

.7

s e ction provid es : Recovery for tort or wrongf ul death will not be permitted in any state if the defendant is declared immune from such li ab ility by the workmen ’ s compensation statute of a state under which th e defendant is requ i re d to provide ins urance agai n st th e parti cu l ar risk a nd under

w hich (a) the plaintiff has obtained an award for the injury, or (b) the plaintiff could obtain an awa rd for the injury, if this is the state (1) where the injury occurred, or (2) where the em p lo yment is princip ally locate d , or (3) whe re the emplo yer superv ised the employee ’ s activities from a place of business in the state, or (4) whose local law governs th e contract of employment under the rules of §§ 187

– 188 and 196.

Resta tement (Second) of C on flict of Laws § 184. 3

In Hu g hes W ood , th e c ourt con sidere d , as we do here, whether the Texas or
Lou isiana workers ’ compensation excl usivity provision applied

. In doing so, the
court noted that “ there is no policy reason to refuse to apply Louisiana ’ s excl usi ve

3 As the supreme court ex pla ined in Hughes Wo od , s ection 184 applies the s ection 6 factors in the workers ’ compensation exclusive

- remedy context. 18 S.W.3d at 2 0 6. Its app lication prot ects the partie s ’ ju stified expectations bec ause “ [ i]t is thought unfair that a person who is req uir ed to provide ins uran ce again st a risk under t he workmen ’ s compensation statute of one state whic h gives him immunity from liability for tor t o r wrongful de ath should not enjoy that i mmunity in a suit broug h t in other states.” R estatement (Second) of Co nfl ict of Laws § 184 cmt . b (197 1)

. S ection 184 f

urther appreciates the relative inte re sts of other states in providing an exclusive wo r

kers ’ c omp ensation reme dy, because “to deny a pers on the i mmunity g ranted him by a workmen ’ s c o mpensation statute of a g ive n state would fru stra te the e fforts of that st ate to restrict the costs of industr ia l accidents.” Id

. Moreover, “[ a]ll states are sy m patheti c w ith the polic ies underlying workm en ’ s co mpensation, and a ll stat es grant certain pers ons immunity from liabili ty for t or t or wrong ful death

. . . . ” Id

. Thus, applying section 184 (1) serves the needs of the interstate system, see id

. § 6(2)(a) ; (2) app lie s the relevan t po licies of t he fo rum, se e id . § 6(2)(b) ; (3) pro motes the basic polic ies underlying the worker s ’ compensatio n syst em, see id

. § 6(2)(c) ; (4) pr o tects justified expectations, see id . § 6(2)(d) ; (5) facilitates certainty, predictab i lity, a nd uniformity of r es ult, see id . § 6 (2)(f) ; and (6) eases th e deter mination and applicat ion of the law to be appl ied , see id . § 6(2)( g). Hughes W ood , 18 S.W.3d at 20 6.8

work ers ’ compensati on r emedy. ” Hugh es W o od , 18 S.W .3d at 20 7. 4
B. App lication to the F acts The key issues in this case for analysis under section 18 4 a re (1) whether
VRNO would have immunity under Louisiana law that it would not have under
Texas law and (2) wh ether appellants ha ve obtained or c o uld obtain Louisiana
workers ’ compensa tion be nefits. See id

. I f VRNO has greater immunity under
Louisiana law and appellants have received or could receive Louisiana benef its, under section 184, Louisiana law a pplies to the claims against VRNO. See id

. We
discuss each issue in turn and conclude that Lou isiana law was properly applied in
this case

. 1 . Immunity
Appellants do not dispute that given the facts of this case , VRNO would
have immunity under Louisiana la w that it would not have unde r Texas law

. L ou isiana provides that in addition to an injured worker ’ s direct employer, a

“ statutory employer ” also is im mune from suit , except for liability resulting from

an intentional act , when a n injured worker is covered by workers ’ com pensation
i nsurance

. See La . Rev. Stat. § § 23:1032( A) ( 1) (a) ; 23:1061 ; St. Angelo v. United Scaffolding, Inc./X

- Serv., Inc. , 40 So. 3d 365, 36 8

- 70 (La. App. 4 Cir. 20 10) ; Lopez v. U.S. Sprint Commc ’ ns Co. , 973 So. 2d 819, 823

- 25 (La. App. 4 th Cir. 2007 ) ; see also Hugh es Wo od , 18 S. W

. 3d at 20 7

. 5 A party qualifie s as a statutory employer ,

4 Appellants urge us to adopt their theory that if the e mployee was initially hired in the same state in which workers ’ c omp ensation benefits are paid , tha t state ’ s substantive law should always apply over the laws of the sta te where the injury occurred. We decline to adopt this theory in light of the supreme court ’ s direction to apply Restateme nt section 184 in cases such as t his.

5 Appellants conceded in the trial court that Jason was covered by work ers ’ compensation in sur a nce in L ou isiana and do not suggest otherwise on appeal. A n insurance policy that appears to cover Jason in Louisiana appe ars several times in the record.9

among other possibilities, i f the party undertook “ t o execute any work which is a part of his trade, business, or occupation in which he was engaged at the time of the injury

. . . and contract s with a ny person for the execution t hereof

. ” La. Rev. Stat. §§ 23:1032(A)( 2 ) ; see also id . § 23:1061( A)( 1 ); St. An gelo , 40 So. 3d at 368

- 70. When a contract between the injured worker ’ s direct employer and the party in question recognizes the exis t ence of a s ta tu tory

- employer relationship, i t is

pre sumed that the party is the worker ’ s statutory employer

. See La. Rev. Stat. §
23: 1061( A)( 3 ) ; Johnson v. Motiva Enter s. LLC , 128 So. 3d 483, 489 (La. App. 5
Cir. 20 13) . This presumption can be rebutted by evidence that t he work in qu estion

wa s “ not a n integral part of or essential to the ability of the principal to generate

t hat individual principal ’ s goods, products, or services

. ” La. Rev. Stat. §
23: 1061(A)( 3 ) ; see also Johnson , 128 So. 3d at 489

. Here, the contract g ov erning the tu rnaround betwee n JVIC, Jason ’ s direct employer, and VRNO expressly recognized a statutory

- empl oyer relationship

. Appellants offered no evidence to rebut the presumpti on that this contract created.
See La. Rev. Stat. § 23: 1061(A )( 3 ) ; Johnson , 1 28 So. 3d at 489

. Accordingl y , as Jason ’ s statutory employer , VRNO possess e d immunity under Louisiana law t hat it did not possess under Texas law

. See La. Rev. Stat. § § 23:1032( A) (1)(a) ; 23:1061 ; St. Angelo , Inc. , 40 So. 3d at 36 8

- 70 ; Lopez , 973 So. 2d a t 823

- 25

.

2. Lo uisiana benefit s

We next turn to the question of whether ap pellants have obta ined or could
ob tain Louisi ana workers’ compensation ben efits

. See Hugh es Wo od , 18 S.W .3d at
20 7 ; Restatement (Second) of Conflict of Laws § 184 (b). It is undi sput ed that appella nts have only r e ceived benefits under the Texas workers ’ compensation system and have not soug ht benefits under the Louisiana system. The fact that out

of

- state benefits ar e being received , however, is not a bar to the receipt of benefits10

un de r the Louisia na system. See L a. Rev. Stat. § § 23:103 5.1( 2). T he out

- of

- state benefits simply act as a credi t against any Louis iana benefits

. Id . § 23: 1035.1(2)(c).
Appellants instead assert that they c o uld not now obtain ben efits in
Louisia na because any s uch claim wou ld be barred u nd er Louisiana Revised
Stat utes section 23:1209( A)(1) as more than a year has pa ssed since Jason ’ s death without a claim being filed in Louisiana

. Section 1209(A) (a) specifically provides
that
(1) [i] n case of per sonal injury, in cluding death resulting the re from, all claims for payments shall be fore ver barred unless within one year

a fter the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within on e year after t he accident a fo rmal claim ha s been filed

. . . . La. Rev. Stat. § § 23: 1209(A) ( l ).
As VRNO points out, however, prescriptio n under section 1209(A)(1) may
be interrupted in certain circumstances

. One such tolling provision i s set forth in

s ection 1209(A)(2) , which provid es that “ [w] her e such payment s have been made

.

. . , the limitation shall not take effect until the expirati on of one year from the time of making the last payment . . . . ” Louisiana courts have interpreted this provision as encompassing wor kers ’ compensa ti on payments m ade through anot her state ’ s system. See Lentz v. N. Am. Van Lines, Inc. , 582 So. 2d 984, 986 ( La. App. 1 Cir. 1991) ; Ryder v. Ins. Co. of N. Am. , 282 So. 2d 771, 774

– 75 (La. App. 3 Cir. 1973) ; cf. Chance v. Fid. & Cas. Co. of N

. Y

. , 509 So. 2 d 593, 599

– 600 (La. App. 3 Cir

. 1987) (holding that payments under federal compensation system interr upte d prescription under section 1209(A)(1)). It is establis hed and undisputed in this case
that payments to appellants under the Texas s ystem are ongoin g ; thus , t he prescription of the claim for Louisiana benefits is interrupted

. See Lentz , 582 So.11

2d at 986 ; Chance , 509 So. 2d at 599

– 600 ; Ryder , 282 So. 2d at 774

– 75

. 6 Appellants do not make any other arguments about whe ther they could still obtain
Lo uisi an a benef

its.

3. Conclusion

B ecause appellants could still obtain Louisiana benefits and VRNO has greater immunity under Louisian a law than Texas law, Restatement section 184 dictates that Louisiana law applies to the c laims against VRNO. See Hugh es Wo od , 18 S.W

. 3d at 20 7 ; Restateme nt (Second) of Conflict of Laws § 184

. Accordingly,
the trial court did not er r in applyi ng Louisiana law to those claims and w e overrule appellant s ’ firs t issue.
II. Expert Testimo ny o n Inten t

In the ir secon d issue, appellants c ontend that the trial court erred in refusing to permit one of their experts , Dr. John McManus, to testif y as to whether certain conduct of VRNO person nel was intentional. McMan us , one of several experts to

6 It should be noted that it is so mething of an open question in Louis iana la w as to whether out

- of

- s tate pay ments made by or on behalf of a direct employer would also serve to interrupt prescription on claims involving a s tatutory employer . Although we fo und no Louisiana case consideri ng this exact issue, it would appear that the interruption of pres crip tion due to out

of

- state payments would encompass both the direct employer and the statutory employer because under Louisi ana law the liability of the two employers is considered solidar y. See, e.g. , Stewart v. Boh Bros. Const. Co. , 128 So. 3d 398, 402 (La . App. 5 Cir. 2003) ; Isaac v. Lathan , 836 So. 2d 191, 194

– 95 (La. App. 1 Cir. 2002) ; see also Glasgow v. PAR Minerals Corp

. , 70 So. 3d 765, 769

- 70 (La. 201 1 ) (explain ing that when presc ription is interrupted for one solidary obligor , it is interrupted for all soli dary obligors)

. In its appellate briefing, VRNO also identifies a second ground for holding that prescription was interrupted under the facts of th is case : in Louisiana, the tim ely filing of a tort action against an employer in a court of compe tent jurisdi ction interrupts prescri ption on a workers’ compensation claim based on the same occurrence. See, e.g. , Torres v. La. Shrimp & Packing Co. , 32 So. 3d 803, 803 (La. 2010); Isaac v. Lathan , 836 So. 2d 191, 194

– 95 (La. App. 1 C ir. 2002). The prese nt l awsuit w as clearly timely filed against VRNO as it was filed less than a year after Jason’s injury and death ; however, bec ause VRNO did not raise this grou nd in the trial court, we wil l not consider this ground on appeal.12

t estify for appellants, wa s presented as an exp e r t in em ergency medicine . He testified at lengt h regarding the proper protocols, diagnosis , and treatment of
hea tstroke as well as the conditions fir st

- responders enc ountered at the refinery and the perceived failings of VRNO personne l in responding to th e emergen cy. McManus was quit e critical of the St. Charles Refinery ’ s emergency system and protocols a nd of the d ecisions made and tr eatment undertak e n

. Among other critiques, he co ncluded that there was no jus tifiab le ex planation as t o why VRNO personnel di d not t imely and effective l y lower Jason ’ s body temperature or why
the re was a delay in calling 911. McMa nus fu rther stated that by the time VRNO got Jason transferred to a St. Charles Parish ambulance , it wa s substanti ally certain

t hat he was going to d ie becaus e they had not suffi ciently lowered his temperature.

Prior to tria l, VRNO filed a motion to exclud e test imony from McManus regarding intent. As mentioned in the motion, M cManus discussed VRNO employees ’ intent se veral times in his expert report. 7 Al though the trial court
deni ed this motion after a brief hearing, VRNO urged the court to reconsider the

7 Among Mc Manus ’ s statements i n hi s report about intent were the foll owing:
T he circulatory status was intentionally not documented or fully assesse d accord ing to medical statements.

. . . The intentional choice not to treat Mr. Wellons during the “g olden hour” time period made it subs tant ially ce rtain that he would suffer morbidity and/or mortality

. . . . There was deliberate absence of medical equip ment imm ediately available to assess, mon itor and treat Mr. Wellons.

. . . During the medical extricat ion and treatmen t by the ERT for Mr. Wel lons the re was intentionally no organized medical communication and treatment. There was intentionally no communic ation or coordination between the

nurse o n the ground an d the medical personnel during the extrication on treatment
or possible transporta tion to near est hospital.

. . . Once the patient was extricated, there was intentionally no continuous cooling perform ed while awaiting 911 EMS. There was a de liberate lack o f documented m edical treatment provided other than legal state ments for this case. Alt hough th e in itial medical response by the ERT was swift, there was intentionally absence of a clear treatment plan during extrication and while awaiting tr ansport. The de liberate absen ce of prehospital communication and medical trea tment resulted in ce rtai n mortal ity for this patient.13

r uling shortly before McManus testified during trial. In a conference hel d outside the jury ’ s presence , the trial c ourt reconside red its earlier rulin g and hel d that
McManus would not be “ allowed to testify to what was the subjective intent of
Valero and it s empl oyees

. ” The court further expounded , “ I don ’ t th ink that he ’ s enti tled to do that unless he has s ome evidenc e that they ma de statements or did

ot her thi ngs that would le ad him as a professional to conclude that they had a specific intent. ” 8

A witness “qual ified as an e xp ert by kn owledge, skill, exper ience, training,

or e ducation” may present opinion t estimony if the expert ’ s scientific, technical , or other specialized knowledge will help the trier of fact to understand the evidence or
to determine a f

act in issue

. T ex. R. Evid. 7 02 ; see also KMart Corp. v. Hon e ycutt , 24 S .W.3d 357, 360 (Tex. 2000) (per curiam) ; GTE Sw., Inc. v. Bruce , 998 S.W.2d
6 05 , 620 (Tex. 1999) . For expert testimony to be admissible, the propone nt of the testimony must establish th at the expert is qualified a n d that his testimony is
rel evan t and based upon a reliab le foundation. E.I. du Pont de Nemou rs & Co. v.
Ro binson , 923 S .W .2d 549, 556 (Tex. 1995). A trial court has broad discretion in
decid ing whether to admit expert testimony, and its decision will n ot b e disturbed on appeal absen t an abuse of d iscretion. Mac k Trucks, Inc. v. Tamez , 206 S .W.3d
57 2, 578 (Tex. 2006)

. Under T exas Rule of Evidence 103 , a party complaining of the exclusion of

ev idence must inform the trial court of the substance of the exclude d evidence by an offer of p roof

, unless th e substance wa s apparent from the context. T ex. R.
E vid. 103(a)( 2); In re N.R .C

. , 94 S.W.3d 799, 806 (Tex. App.

— Houston [14th Dist.] 2 002 , pet. deni ed )

. During the conference on McManus ’ s testimony,

8 VRNO ’s motion also sought to prevent McManus from testifying about Jason ’s cause
o f death or the question of timing as i t r elated to the c ause of death. The trial court d enied these po rtions of the mo tion and did not rec onsi der them during trial.14

although appell ants ’ counsel argued McManu s sh ould be all owed to testif y regarding intent, counsel di d not pr ovide any sp ecifics regar di ng McManus ’ s proposed testim ony , n ot whose intent he planned to testi fy to or how the testimony would aid the jury

. Near the end of the conference , a ppellant s ’ co unse l stated hi s intention to make a bill o f excep tion or o ffer of proof with M cManus, to wh ic h the judge r eplied, “ Absolutely. No prob lem. ” It does not appear, ho we ver, that an y such bill or offer was made

. Later, d uring appella nts ’ counsel ’ s examination of
M cManus , the following exc hange occurred : Q. [D] oes th ei r policy and procedu re say that E MS should be called immediately and there should be a transport?

A. Yes

. Q. And so with regard to both Char les Adams and Nurse Rulapaugh saying they wanted to wait unti l Jason Wel lons got on th e ground before they did the ir evaluat ion to call 911, what is yo ur evaluation of that?

A. That would be a [sic] intentional delay and it resulted in the death of Mr. Wellons.

VRNO ’s counsel : Excuse m e. Judge, object to this wi tnes s giving op inions on inte nt of the Valero people.

THE C OURT: Ok ay. That ’ s s ustained. App el lants ’ counsel : We can restrain. [sic]

VRNO ’s counsel : Can we instruc t the jury? THE COURT: Instruct the jury

. . . to disregard the wi tnes s ’ [s] characterization. Q. Oka y. So le t ’ s just say this : Can you think of any reas o n whatsoev er to wai t until Jason W ell ons hit the ground if he has shown signs of heatstroke when he ’ s up i n the rack?15

A. I cannot. And they

— that would be a violation of the ir own protocol.

In thei r brief

ing to t his court, a ppell ants point to this exchange as “ [a]n example of the type of te stimony that would have been offered. ” We presume without deciding
that appellants have preserved this issue for our review. See Tex. R. E vid. 103(a)(2); In re N. R.C

. , 9 4 S.W.3d at 806

. Appellan ts argue at length t hat exp erts are allowed to testify a s to u ltimate
issues of fact

. While this is true under appropriate circumstanc es , see, e.g. , Helena
Chem. Co. v. Wilkins , 47 S.W.3d 486, 499 (Te x. 2001) ( “ Otherwise adm issible opinio n testimony is not objectionable because it e mbraces an ultimate issue of
fact

. ” ), the proponent of such evidence is still required to show that such ex pert

tes timony i s necessary to “assist the trier of fact to under sta nd t he evid ence or to determ ine a fa ct in issue.” Tex . R. Evid. 702 ; see als o Hon eycutt , 24 S.W.3d at
360 ; Bruce , 99 8 S.W.2d at 620

. When the jury is equally competent to form an opinion about an ultimate
fact is sue or an expert ’ s testimony is within t he common knowledge of th e jury , the

tr ial court should exclude the expert’s testimo ny. Hon eycutt , 24 S. W.3d at 360

. In other words, if the issue involves only general knowledge and experien ce rather than expertise, it is within the province o f the jury to decide

. See Bruce , 998
S .W.2d at 620

. Appellants do not offer an y explanation in th eir briefing as to w hy the jury

n ee d ed McM anus to tell them that the VRNO employees wanting to wait until
Jason was brought down from the pipe rack to evalua te him and deci de whether to
call 911 wa s inte ntional. Appellants likew ise d o not explain why the j ury needed
McManus ’ s expert opini on on any other matter of subjective intent. 9 The trial court

9 See, for example, the statements regarding intent in McManus ’s expert report. See n. 816

could have reasonably concluded that the question of whether the actions and
inactions in question wer e inte ntional was not so comple x as to require expert
testi mony to help jurors draw their ow n conclusions. See, e.g. , Mega Child Care,
Inc. v. Tex

. Dep ’ t of Protecti ve & Regulatory Servs. , 29 S.W.3d 303, 310 (Tex. App.

— Houston [14t h Dist.] 2000 , no pet. ) A s disc ussed a bove, McManus gave a full

- throated critique o f VRNO ’ s policie s and protocols at t he St. Charles Refinery as well as of the actions VRNO personnel took a nd failed to take. Appellants have
not established that t he trial court abuse d its discreti on in refusin g to permit
McManu s to testify regarding the s ubjective intent of VRNO or its e mp loyees

. See
Hon eycutt , 24 S.W.3d at 360

- 61 (holding testimony of human factors and safety expert was not necessary to help the jury deter mine whether conditions a t stor e
creat ed an unreasonable risk of injury ). Accordingl y, we overrule appel lant s ’
second i ssue.

III. Closing Argument In their third issue, appellants assert tha t VRNO ’ s counsel mad e improper
and incurable stat ements to the jur y during closing argumen t s. Spe cifical ly,

a ppellants com

plain that VRNO’s counsel su ggested in his argum ent that

appe ll ants were assert ing and had to prove that VRNO personnel intended to kill or
murder Jason in orde r to be successful on their c laim s

. As will be discussed below ,

a ppellant s re a lly make two different c omplain ts under this i ssue

— a complain t abo ut the refere nc e s to an intent to kill, which w as n ot preserved by an objection,
and a complain t about a reference to murder, whic h arguably was pr eserved by objection.

A litig an t is entitl ed to have his counsel argue the facts of the case to the jury. Zu rita v. Lomba na , 322 S.W.3d 463, 482 (Tex. App.

— Houston [14th Dist.]

sup ra

.17

2010 , pet. d e nied ) . Trial counsel m ay properly discuss the rea sonablenes s of th e evidence as well as the pro ba tive effect , or lack ther eof, of the evidence. Id

. C ounse l should be allowed wide latitude in arguing the evidence and the
reasonable inferences from the evid e nce to the jury. Id

. a t 483. Control over
counsel during cl osing a rgument is within the sound d is cretion of the trial cour t and will not be disturbed abse n t clear abuse of th at discretion

. D uke v. Jack in the Box E. Div., L.P. , No. 14

- 15

- 007 9 8

- CV, 2017 WL 2561245 , at *2 (Tex. App.

— Houston [ 14th Dist. ] June 13, 2017 , pet. denied ) (mem. op.)

. A. Coun sel ’s R emark s
To understa nd VRNO ’ s counsel ’ s closing remarks, we must f irst recall that Que stion no. 1 i n the jury charge asked whether the intentional conduct of VRNO proximately c ause d Jason ’s death , and th e accompan ying tw o
- part defini tion
defined “inte ntional cond uct” as meani ng “that one or more [VRNO] employee either (1 ) consciously desire d the physica l result of his actions or (2) knew that the
result is substantially certain to foll ow from his actions. ” In his remarks, defense
counsel stated general ly that appe llants ’ claim was that VRNO “ intentionally
caused [Jason ’s] death , ” “ intentiona lly k illed ” J ason, and were “trying to kill ” Jason, b ut counsel insi sted, co ntrary to that claim, VRNO personnel w ere ac tive ly trying t o help Jason , not kill him.

I n specificall y discussing the first part of the charge definition of int entional
conduct

— “ c o nsci ously de sired the physical result of his actions ”

— counsel
likene d the requirement to t he Texa s penal statute for murder , stating t h at it required evidence that a VRNO emplo yee co n sciousl y wanted to cause Jason ’ s death

. At this point , appellants ’ counse l st at ed his first and only objection to this line of argument. Appe llants ’ counsel , howev er, did not state the compl ete grounds
for h i s objection before the judge o v erruled th e objection an d instructed him to sit18

down. Counsel stated: “ Excuse me, Your Hon or. [H]e ’ s a rguing the murder
that ’ s

— . ” 10 This was also VRNO ’ s counse l ’ s only use of the wo rd “ mur der ” in his argument

. In discussing t h e second part of the def initio n

— “ knew th at the result i s substantially certain to follow from his act ions ”

— VRNO ’ s counsel ac knowledg ed
that this was the section on which appellants were rel ying

. He also emphasiz ed t he high bar set by the requirement of su b stantial certainty and urged t he jury to

co n fine its co nsideration to the t ime period after Jason ’ s i njury became known.

In his clos ing remarks, appellant s ’ counsel reiterated that appellan ts were n o t claiming a ny VRNO personnel “ consciou sly desired the p h ysical result, ” i.e.,
Jason ’ s death , but they knew untr eated heat stroke is deadly and yet failed to t imely and proper ly t rea t Jason. Appellants ’ counsel also insisted that VRNO failed to
f ollow its own procedur es and that bad company pol icies and inadequ a te training
and supervision eq

ua led int en t as defined i n the second part of the definition

. In
direct response to defense cou nsel ’ s a rgument, appellants ’ counsel stated , “ don ’ t think b ecau se we didn ’ t prove they murdered him, th at we didn ’ t prov e that it was substantially certain ” th at VRNO perso nnel ’ s inaction would lead to Jason ’ s death.

B. References to I ntent to K ill

We b egi n our an alysis with appellants ’ compl aint about VRNO ’ s coun sel ’ s references to an inte nt to kill. App el lants state that VRNO ’ s counsel asserted appellants clai med and ha d t o prove VRNO pe rsonnel possessed an intent to kill
Jason in o rder for appellants to be succe ssful in the lawsuit. As set forth above , VRNO ’ s co unse l did make several refe rences to an in te nt to kill, but at no point
did appellants object to tho se references

. If the probab le h arm from an improper

10 Th e judge had also earlier instr uct ed VRNO ’ s couns el to sit down when he had ma de an objection d

uring appellants ’ cou nsel ’ s closi ng rema rks.19

jury argument is cura ble, then the error mus t be pre served by obtaining an advers e ruling on a timely o bjec t ion, motion to instruc t the jury, or mo tion for mistrial. Living Ctrs. of Tex., Inc. v. Penalve r , 25 6 S.W.3d 678, 680 (Tex. 2008) (per curiam); DeWolf v. Kohler , 452 S.W .3d 373, 396 (Tex. A pp.

— Houston [14th Dist.] 2014 , no pet. )

. Only when argument is de e med so prejudicial and inflammatory th at it s impact would not be curabl e by an instruction to di sregard by
th e trial court i s no objection necessary. Clark v. Bres , 217 S .W.3d 501, 509 (Tex. Ap p.

— Houst on [14th Dist.] 2006, pet. de nied) . And even then, the complaint at least must be raised in a m otion for new trial , as appella nts did he re

. See Phillip s v. Bramlett , 288 S.W.3d 87 6, 883 (Tex. 2009) ; Clark , 217 S.W.3d at 509 n .1.

In order to show th at VRNO ’ s counsel made an incurable a rgument , appellants mu st p rove: (1) an improper a rgument was mad e ; (2) it was not invited

or prov oked; (3) it was not cura ble by a prom pt withdrawal o f the state ment by
counsel or a reprimand or i nstruction by the tr ial court; and (4) by its nature, degree, and exte nt, the argument const itut ed harmful error based on an examinati on of the entire record to determ ine the argument ’ s probab le effect on a

mat erial finding. Clark , 217 S.W.3d at 509

. The d uration of the argum ent , whethe r it was repeated or abandoned , and whether there was cumulative er ror are factors
for co nsid eration

. Id

. Appellants must also show t hat the probability the imprope r argument caused harm is gr eater than the probability the verdict was gro unded on
p roper pr oc eedings and evidence. Id

. Instances of truly incurable jury arg um ent are

rare. Phillips , 28 8 S.W.3d at 883

. Appell ants must demon st rate that “ t he offensive

argume nt was so extreme that a ‘ jur or of ordinary intelligence could have been

pe rsuaded b y that a rgu ment to agree to a verdict contrary to that to which he would
hav e agreed but for such argu ment. ’ ” Id . (quoting Go forth v. Alvey , 1 53 Tex. 449, 271 S.W.2d 404, 40 4 (1954) ).20

As stated abov e, VRNO ’ s counsel ’ s remarks must be viewed in lig ht of the
definit ion of “intentional conduct” provided in the charge as meaning a VRN O employee either “ con scio usly desired the physic al result of hi s actions ” or “ knew
that the resu lt [ wa ] s substantially ce rta in to follow from his actions.” In this light, it
is cl ear that co unsel ’ s rema r ks regarding an intent to kill were either a shortha nd way to refer to the fac t that appellants had t o prove “ intent io nal conduct ” that
resulted in J ason ’ s death or reference d t he first part of the charge definiti on

—

“ consci ously des ired the ph ysical result of his actions

. ” It appears from context
that , at di fferent points, defens e counsel mean t the remarks in each of these ways. Regardless, VRNO ’ s cou ns el also made it clear tha t he understood that appellants

were not basing their cla im on th e f irst part of the definition but instead were basing their claim on the second part

— “knew that the result [wa]s subs tantia lly
certain to follow from his actions. ” W hile VRNO ’ s counsel sugge st ed that to be
successful under the first part of the d efinitio n , a ppellants would have to prove an
intent to kill , he made a differe nt argument in regards to the second part of the
def inition , empha siz ing the high level of pro of required to show substant ia l certainty and urg ing the jury to confine its conside ration t o th e time period after Jason’s injury became known

. Appellants ’ trial counsel re iterated th is dichotomy
in his own rem arks to the jury , explaining that they were n ot seeking a finding
under t he first part and thus did not have to prove an intent t o kill

. Cons idering the entirety of the closing arguments and the record as a whole,
V RNO ’ s counsel ’ s references to an inten t t o kill was not “ s o extreme that a juror of

or din ary intelligence could ha ve been persuaded by that argument to agree to a
verdict contrar

y to that to which he would have agreed but for such argument

. ”
Philli ps , 288 S.W.3d at 883

. T he probability that the improper jury argumen t caused harm is not greater than the p robability that the verdict was grounded on21

pr oper proceedings and evi dence

. S ee Clark , 217 S.W .3d at 5 09

. Even assum ing
the ar gum ent was improper , it was not incurable in nature

. C. Reference to Murder

As explained above, t he only reference VRNO ’ s counse l made to murder
came when he stated that the first part of the co urt ’ s “ inten tional cond uct”
definition w as “ similar to the Te xas st atute on murder ” in that it required a VRNO empl oyee to consciously desir e Jason ’ s death. Ev en assuming that appellants ’

co unsel objected sufficiently to this argument a nd such a rgument was i mp rop er, b as ed on the entire record of this case, we cannot say th e argument, either alone or
in combination with the othe r complained

- of argument , probably caused the rendition of an impr oper judgment. See T ex. R. App. P. 44.1(a) (pr oviding that n o judg ment may be reversed for error unless the error probably caused the rendition of an improper judgment or prevented the proper pres e ntation of the case to the

c ourt of appeals ) ; Standard Fire Ins. Co. v . Ree se , 584 S.W.2d 83 5, 839

– 40 (Te x. 1979) ( explaining tha t compla inant must show that the probability an improper argument caused harm is greater than the probability that the verdict was grounded

on proper proce edings and evidence ) ; Dall as Ct y. v. Crestv iew Corners Car Wash , 370 S.W.3 d 2 5, 48 (Tex. App.

— Dal la s 2012 , pe t. denied ) ( holding arguments, although improper, did not either alone or in combination with other arguments probably cause the rendition of an im proper judgment. ) . Counsel ’ s co mment was a clear attempt to explain the first part of the charge defi nition o f “ intentional

con duct , ” the part that both VRNO ’ s counsel and appellan t s ’ counsel agree d was inapplicable to the case

. In t he absence of demons tra ble harm from any of the
closin g remarks appellants complain about, we o verru le appellants ’ third iss ue.22 Conc lusion Finding no mer it in any of appellant s ’ issues, we affi rm the trial court ’ s judgment.

/s/ Franc es Bo urliot Justice

Panel consists of Chief Jus tice Frost and Justices C hri s to pher and Bourl iot.