No. 06-14-00040-CV __________________________________________________________________

IN THE COURT OF APPEALS 

FOR THE SIXTH DISTRICT OF TEXAS

__________________________________________________________________

Tillerd Ardean Smith, Medallion Transport & Logistics, LLC, and Tomy Rushing 

d/b/a Rushing Transport Services, Inc.,

Appellants 

V. 

Brandi Williams, 

Appellee

__________________________________________________________________

On Appeal from the 71st Judicial District Court of 

Harrison County, Texas, the Hon. Brad Morin presiding

Trial Court Cause No.12-0889

__________________________________________________________________

APPELLANTS’ REPLY BRIEF

__________________________________________________________________

G.R. (Randy) Akin

State Bar No. 00954900

G.R. RANDY AKIN, PC

3400 W. Marshall Avenue, Suite 300

Longview, Texas 75604

Tel: 903-297-8929

gra@randyakin.com

ORAL ARGUMENT 

REQUESTED

Thomas C. Wright

State Bar No. 22059400

Wanda McKee Fowler

State Bar No. 13698700

Shelley J. White

State Bar No. 24056520

WRIGHT & CLOSE, LLP

One Riverway, Suite 2200

Houston, TX 77056

Tel: 713-572-4321

wright@wrightclose.com

fowler@wrightclose.com

white@wrightclose.com

 

ACCEPTED

06-14-00040-CV

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

1/9/2015 6:53:12 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 1/12/2015 8:16:00 AM DEBBIE AUTREY Clerk
2

TABLE OF CONTENTS

INDEX OF AUTHORITIES......................................................................................3

INTRODUCTION .....................................................................................................5

ARGUMENT.............................................................................................................7

I. The Spoliation Instruction Was Improper and Harmful. ......................7

This record contains no proof of a subjective intent to 

conceal relevant evidence......................................................................8

The record does not show that driver’s logs before March 

18 were relevant to whether Smith was fatigued on April 

4. ..........................................................................................................11

The instruction harmed the Defendants. .............................................12

II. Defendants Preserved the Judge’s Error in Giving an 

Instruction on Negligent Hiring and Training.....................................13

Counsel informed the trial court that the evidence did not 

support the instructions. ......................................................................14

The instructions were harmful.............................................................16

III. The Facebook Photos Were Admissible and Their 

Exclusion Was Harmful. .....................................................................17

IV. The Expert Testimony Does Not Support the Jury’s 

Findings...............................................................................................22

V. The Catch-All “Statutory Employee” Spectre Is a Red 

Herring.................................................................................................31

CONCLUSION........................................................................................................34

CERTIFICATE OF SERVICE ................................................................................36

CERTIFICATE OF COMPLIANCE.......................................................................36
3

INDEX OF AUTHORITIES

Cases

Barham v. Turner Constr. Co. of Tex.,

803 S.W.2d 731 (Tex. App.—Dallas 1990, writ denied) ....................................20

Broders v. Heise,

924 S.W.2d 148 (Tex. 1996)................................................................................29

Brookshire Bros. Ltd. v. Aldridge,

438 S.W.3d 9 (Tex. 2014)................................................................................8, 12

Christus Health Se. Tex. v. Broussard,

267 S.W.3d 531 (Tex. App.—Beaumont 2008, no pet.) .....................................27

Clark v. Randalls Food,

317 S.W.3d 351 (Tex. App.—Houston [1st Dist] 2010, pet denied.)..................12

Cooper Tire & Rubber Co. v. Mendez,

204 S.W.3d 797 (Tex. 2006)................................................................................29

Cortez v. Tomas,

No. 02-11-00231-CV, 2012 Tex. App. LEXIS 1092 (Tex. App.—

Fort Worth Feb. 9, 2012, no pet.).................................................................. 23, 28

Gammill v. Jack Williams Chevrolet, Inc.,

972 S.W.2d 713 (Tex. 1998)................................................................... 22, 28, 29

Ibrahim v. Gilbride,

No. 14-09-00938-CV, 2010 Tex. App. LEXIS 9710 (Tex. App.—

Houston [14th Dist.] Dec. 9, 2010, no pet.).................................................. 23, 28

Lopez v. La Madeleine of Tex., Inc.,

200 S.W.3d 854 (Tex. App.—Dallas 2006, no pet.)............................................18

Pediatrix Med. Serv. Inc. v. De La O,

368 S.W.3d 34 (Tex. App.—El Paso 2012, no pet.)............................................30

Richards v. Tebbe,

No. 14-13-00413-CV, 2014 WL 2936425 (Tex. App.—Houston 

[14th Dist.] June 26, 2014, no pet.)......................................................................19
4

State Dep’t of Highways & Pub. Transp. v. Payne,

838 S.W.2d 235 (Tex. 1992)................................................................... 13, 15, 16

Tamez v. Sw. Motor Transp., Inc.,

155 S.W.3d 564 (Tex. App.—San Antonio 2004, no pet.)..................................32

Tawa v. Gentry,

No. 01-12-00407-CV, 2013 Tex. App. LEXIS 4828 (Tex. App.—

Houston [1st Dist.] Apr. 18, 2013, no pet.)..........................................................25

Tenet Hosp. Ltd. v. Love,

347 S.W.3d 743 (Tex. App.—El Paso 2011, no pet.)..........................................31

Thota v. Young,

366 S.W.3d 678 (Tex. 2012)................................................................................15

Wal-Mart Stores, Inc. v. Johnson,

106 S.W.3d 718 (Tex. 2003)......................................................................... 10, 11

Whirlpool Corp. v. Camacho,

298 S.W.3d 631 (Tex. 2009)................................................................................22

Statutes

49 C.F.R. § 376.12(c)(1)..........................................................................................32

Other Authorities

1 WEINSTEIN & BERGER, WEINSTEIN’S FEDERAL EVIDENCE § 

301.06[4] at 301–28.3 (2d ed. 2003)....................................................................11

MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 39 (11th ed. 2003).....................17

Rules

TEX. R. CIV. P. 193.6(a)(2).......................................................................................17

TEX. R. EVID. 401.....................................................................................................12
5

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

Appellants Tillerd Ardean Smith, Medallion Transport & Logistics, LLC, 

and Tomy Rushing d/b/a Rushing Transport Services, Inc. respectfully file this 

Reply Brief.

INTRODUCTION

On appeal, as at trial, Plaintiff wants to focus on anything but the substantive 

issues. First, Plaintiff’s brief virtually ignores the Supreme Court’s newest opinion 

on spoliation, failing to explain why that Court’s new guidelines do not control 

here and dictate a reversal. Plaintiff’s brief likewise fails to address the lack of any 

proof of intent to spoliate or any proof of prejudice to Plaintiff from spoliation—

both necessary elements before a spoliation instruction may be given. And 

Plaintiff’s feigned skepticism that the spoliation instruction they fought so hard for 

in the trial court harmed Defendants is a diversion as well. The spoliation 

instruction and the court’s refusal to allow impeachment of Plaintiff on the 

Facebook photos, harmed Defendants because the jury was much less likely to 

consider Plaintiff’s own negligence in the accident. After all, she did not slow 

below the speed limit even when she saw the 18-wheeler truck in the lane next to 

her travelling 10–20 mph. 

Second, in response to Defendants’ challenge to show otherwise, the brief 

also wholly fails to point to any evidence that Smith’s clean pre- and post-
6

employment driving records provided a basis for a negligent hiring, training, or 

supervision instruction or to explain why these instructions also did not harm 

Defendants.

Third, with regard to Plaintiff’s excluded Facebook photos, the brief offers a 

single case (involving photographs known only to Defendants) that does not apply 

here, where the photos were not a surprise to Plaintiff because she took them 

herself and posted them on her Facebook page. Nor does the brief attempt to 

explain why the trial court acted properly when it refused to allow Defendants to 

impeach Plaintiff’s statement that she did not deer hunt after the accident when her 

own photos suggest that she did hunt. By refusing to allow impeachment, the court 

usurped the jury’s job to assess credibility.

Fourth, likewise the brief glosses over Defendants’ substantive attacks on 

Plaintiff’s experts. Plaintiff never addresses why a non-surgeon, part-owner of a 

spinal surgery center is qualified to testify as an expert on the intricacies of spinal 

surgery or why the non-surgeon is qualified merely because the surgery center is 

recognized for its quality. Nor does Plaintiff explain why a doctor without any 

vocational rehabilitation training is qualified to testify as an expert in that field.

Moreover, all of the testimony regarding vocational rehabilitation is based on the 

non-surgeon’s testimony that Plaintiff will require a specific type of surgery. In 

addition, the doctor’s testimony on vocational rehabilitation is vague and fails to 
7

show the basis for his expertise; he essentially assumes he is an expert, even 

though vocational rehabilitation is not mentioned once in his lengthy curriculum 

vitae. 

Finally, the brief asserts that Smith is a statutory employee of Medallion,

ignoring Plaintiff’s refusal to accept a trial stipulation on Smith’s employment

status (thereby putting the issue to the jury) and ignoring Plaintiff’s failure to 

secure (i) a jury finding on employment or (ii) a ruling on her directed verdict 

motion regarding employment. This was a fact issue on which Plaintiff had the 

burden. In addition, the case law and federal statutes that Plaintiff cites do not 

dictate that Smith was Medallion’s statutory employee. 

In short, Defendants have shown the reversible error in the record. On every 

claim, Plaintiff’s brief dodges the underlying substantive problems. Plaintiff has 

failed to give the Court any blueprint for upholding the judgment. When the Court 

scrutinizes the briefs, it will conclude that the judgment must be reversed.

ARGUMENT

I. THE SPOLIATION INSTRUCTION WAS IMPROPER AND HARMFUL.

The gist of Plaintiff’s position on spoliation is this: some logbooks, dispatch 

records, and waybills were destroyed; as a result the instruction was warranted. 

This is such a gloss on the law, on Plaintiff’s original preservation request, and on 

the records actually produced that it borders on misdirection.
8

Under Brookshire Brothers, the inquiry examines what documents are 

unavailable and why they are unavailable.1 Brookshire Bros. Ltd. v. Aldridge, 438 

S.W.3d 9 (Tex. 2014). Except for an extremely narrow exception, a spoliation 

instruction is proper only when documents are unavailable because the party 

intentionally spoliated them by acting “with the subjective purpose of concealing 

or destroying discoverable evidence.” Id. at 24 (emphasis added). Finally, even if 

documents are unavailable, a court must consider if the unavailable documents 

prejudiced the party’s case. 

This record contains no proof of a subjective intent to conceal 

relevant evidence. Here, as in Brookshire Brothers, Defendants produced 

documents—just not as many as Plaintiff claimed they should have produced.

Once this Court examines what was requested and what was produced, it must 

conclude, as the Supreme Court did in Brookshire Brothers, that the record lacks 

any proof that Medallion intended to conceal relevant evidence.

In Brookshire Brothers, a slip and fall case, the grocery store preserved film 

only from the time the plaintiff entered the store until shortly after his fall. Id. at 

27–28. This film was saved after the plaintiff notified the store that he wanted 

 1 Brookshire Brothers also requires the court to consider if a duty exists to preserve 

documents. Id. at 14. Defendants agree that they had a duty to preserve some documents. 

The dispute here is whether Defendants sufficiently preserved the material and relevant 

documents; the burden was on Plaintiff to show that any unavailable documents were 

material and relevant. Id. at 20.
9

footage of the fall. Id. The rest of the film for the day was destroyed pursuant to the 

store’s document retention policy. Id. at 15. Although the plaintiff’s lawyer later 

requested more footage, the record contained no evidence that this request was 

made when the extra footage was still available. Id. at 27. The Court concluded

that Brookshire Brothers did not intentionally destroy evidence—and that this lack 

of intent precluded an instruction. The record failed to show that the decision as to 

what film to destroy was “based in any way on what the additional footage would 

have shown”—which may have shown an intent—and instead the record showed 

that the store preserved what the plaintiff asked it to preserve. Id. at 28.

This case warrants the same conclusion. Three days after the accident,

Plaintiff informed Medallion of the April 4, 2011 accident and asked Medallion to 

preserve dispatch records, driver logbooks, waybills, and fuel records. (CR 150–

152) Plaintiff did not tell Medallion to preserve a specific number of days 

of these documents. Medallion’s insurer suggested Medallion save eight days of 

each of these documents.

Medallion preserved much more than its insurer suggested: 18 days of 

driver’s logs from before and after the accident, 29 days of waybills immediately 

preceding the accident, 61 days of fuel records (for March and April), and dispatch 

records for the 11 months immediately preceding the accident. 
10

Plaintiff complained at trial and continues to complain on appeal that she 

was not given waybills for April 1–4, 2011, but the record indisputedly shows that

no waybills existed for April 1st or 2nd—the March 31 waybill covered a trip from 

March 31 to April 1 and Smith did not work from April 2 to the afternoon of April 

3. (4 RR 62–66) Although Smith would have received a waybill on April 3 for the 

April 4 trip, that waybill was transferred to a different carrier who carried the load 

after the accident. (4 RR 114–16) So Medallion also did not have this waybill. 

Plaintiff presented no conflicting evidence on these points. When a party 

controlling the evidence explains its failure to produce the evidence, then a 

spoliation instruction is not appropriate. See Wal-Mart Stores, Inc. v. Johnson, 106 

S.W.3d 718, 722 (Tex. 2003) (noting that a spoliation instruction is appropriate 

when evidence has been deliberately destroyed or a party cannot explain the nonproduction). Obviously, Medallion could not produce, and did not destroy, 

documents it never had.

Moreover, Medallion’s representative at trial testified that the company gave 

Plaintiff seven days of driver’s pre-accident logs, which is “common practice” so 

that one can see the activity of the driver for the week before the accident. (4 RR 

114–119, 123–124) Medallion’s representative also testified that the company had 

never preserved six months of driver’s logs for an accident. (Id.) And, as in 

Brookshire Brothers, this record lacks any evidence showing that Medallion knew 
11

that it was destroying—or did destroy—pertinent evidence or that it engaged in a 

purposeful effort to conceal relevant evidence.).

The record does not show that driver’s logs before M arch 18 were 

relevant to whether Smith was fatigued on April 4. Plaintiff also claims that 

she was injured because more driver’s logs were not produced; according to 

Plaintiff, if Medallion had produced more driver’s logs, Plaintiff would have been 

able to show that Smith had a history of driving while fatigued. But a spoliation 

instruction is appropriate only when the allegedly spoliated evidence is material 

and relevant to a claim or defense. Here, there is no logical connection between 

the driver’s logs prior to March 18 and whether Smith was fatigued on the day of 

the accident, April 4.

As to the unproduced driver’s logs—where litigation is anticipated, a duty 

arises to preserve evidence that is material or relevant to the claim. Wal-Mart 

Stores, 106 S.W.3d at 722; see also 1 WEINSTEIN & BERGER, WEINSTEIN’S 

FEDERAL EVIDENCE § 301.06[4] at 301–28.3 (2d ed. 2003) (“[T]here must be a 

sufficient foundational showing that the party who destroyed the evidence had 

notice both of the potential claim and of the evidence’s potential relevance.”).

Thus the issue is whether Smith’s driver logs prior to March 18—more than 

18 days before the accident—are relevant to the cause of the accident. “Evidence 

is relevant if it has ‘any tendency to make the existence of any fact that is of 
12

consequence to the determination of the action more probable or less probable than 

it would be without the evidence.’” Clark v. Randalls Food, 317 S.W.3d 351, 357 

(Tex. App.—Houston [1st Dist] 2010, pet denied.) (citing TEX. R. EVID. 401). 

There must be some logical connection between the evidence and the point being 

proven.

There is no logical connection here between driver’s logs pre-March 18 and 

whether Smith was fatigued on April 4—after a Smith had been off a day and a 

half. Whether Smith got enough rest in the days preceding March 18 has zero 

tendency to make his fatigue, if any, on the morning of April 4 any more or less 

probable. Thus, any driver’s logs pre-March 18 are irrelevant, and their nonproduction is not a basis for a spoliation instruction. 

Under Brookshire Brothers this Court must conclude that the trial court 

abused its discretion in giving a spoliation instruction. Likewise, the Court must 

conclude that Defendants were harmed by the instruction. 

The instruction harmed D efendants. The spoliation evidence and 

instruction were part of Plaintiff’s overall scheme to gut Defendants’ credibility. 

At its essence, a spoliation instruction informs the jury that a party destroyed 

evidence to gain an advantage in the suit. See Brookshire Bros., 438 S.W.3d at 13. 

Introduction of spoliation evidence magnifies the improper conduct. Id. As argued 

in their opening brief, Defendants believed that Plaintiff also was negligent and 
13

that she partly caused the accident because she was going too fast and failed to 

slow when she saw the 18-wheeler traveling so slowly in the lane next to her. (Ant. 

Br. at 36–38) But between the spoliation instruction and the two instructions 

suggesting to the jury that Medallion and Rushing had hired an incompetent 

employee and had failed to adequately train him, the jury was likely to give little, if 

any, credence to Defendants, whom the jury was told had improperly destroyed 

evidence and had hired an incompetent employee then failed to train the employee.

In addition, Plaintiff’s counsel cross-examined all of the defense witnesses about 

spoliation. (3 RR 60:1–63:20; 4 RR 62:3–66:17; 79:10–80:10; 82:8–85:5; 92:21–

93:20; 117:1–119:11; 122:1–10; 123:3–11; 152:24–156:25; 167:25–169:11; 

172:3–176:5; 180:3–184:2; 190:3–191:16; 7 RR 111:20–112:22) He also reread 

the instruction and emphasized it in closing. (7 RR 152–54) That the jury placed no 

fault at all on Plaintiff shows the harmful effect of all of the instructions and the 

spoliation issue. 

II. DEFENDANTS PRESERVED THE JUDGE’S ERROR IN GIVING AN 

INSTRUCTION ON NEGLIGENT HIRING AND TRAINING.

Plaintiff’s counsel apparently wants to return to the days of “gotcha” 

practice in charge error preservation, where no error was preserved if the right 

words were not used. See State Dep’t of Highways & Pub. Transp. v. Payne, 838 

S.W.2d 235, 241 (Tex. 1992). This position is understandable in light of the 

instructions the judge gave. The judge informed the jury that it could find 
14

Medallion and Rushing negligent if they hired or retained an incompetent driver or 

failed to adequately train a driver, even though Smith had not had any other 

accidents or tickets as a commercial driver. (CR 636) Defendants’ counsel objected 

to the instructions, but Plaintiff claims counsel did not make the right objections. 

This is incorrect.

Counsel informed the trial court that the evidence did not support 

the instructions. Defense counsel objected to both instructions essentially on the 

same grounds; he claimed they were a comment on the weight of the evidence and 

said that they told the jury

that Tillerd Ardean Smith, who’s never had 

a moving violation as a truck driver, who 

has never had an accident, wreck, collision, 

anything as a truck driver prior to the date in 

question is an incompetent employee . . . .

(7 RR 140) 

Clearly, this objection informed the judge that no evidence supported the 

instructions. The question under State Dep’t. of Highways v. Payne is whether 

counsel timely and plainly made the trial court aware of the underlying complaint. 

Id. 

The Supreme Court reaffirmed the test recently, noting “[a]s we stated 

twenty years ago, the procedural requirements for determining whether a party has 

preserved error in the jury charge are explained by one basic test: ‘whether the 
15

party made the trial court aware of the complaint, timely and plainly, and obtained 

a ruling.’” Thota v. Young, 366 S.W.3d 678, 689 (Tex. 2012) (citing Payne, 838 

S.W.2d at 241). 

The facts of Thota are particularly applicable here. The plaintiff in Thota

objected to the inclusion of a contributory negligence question and to questions 

relating to new and independent cause and unavoidable accident. Id. at 862. The 

plaintiff argued that there was no evidence to support these questions, but did not 

advise the trial court that a Casteel problem would arise if the questions were 

included. Id. The trial court overruled the plaintiff’s objection and the jury found 

the plaintiff to be responsible for his injuries. Id.

In the Supreme Court, the defendant argued that the plaintiff waived his 

right to appeal the inclusion of the contributory negligence and the new and 

independent cause instructions because the plaintiff’s charge conference objections 

were not specific enough to put the trial court on notice of the Casteel problem. Id. 

at 689–90. The Supreme Court rejected the argument:

Contrary to [the defendant’s] narrow and technical 

interpretation of our preservation of error requirements, 

we have never held that a no-evidence objection in this 

context is insufficient to preserve a broad-form complaint 

on appeal. Moreover, we have long favored a common 

sense application of our procedural rules that serves the 

purpose of the rules, rather than a technical application 

that rigidly promotes form over substance. 

Id. at 690 (internal citations omitted).
16

Here, there is no question that the objection was made timely and that 

Defendants obtained a ruling. Nor is there any doubt about whether the objection 

was stated “plainly.” See Payne, 838 S.W.2d at 241.

As noted above, although Defendants’ counsel did not say “no evidence,” he 

made clear to the trial judge that he objected to the inclusion of the negligent hiring 

and negligent training instruction because:

• Smith never had a moving violation while working as a truck driver.

Applying common sense, this informed the court that there was no 

evidence that Smith ever had a moving violation while working as a 

truck driver, and therefore no evidence supported the instruction.

• Smith never had an accident, wreck, collision or any other issue prior 

to the accident. Applying common sense, this informed the court that 

there was no evidence that Smith ever had an accident, wreck, 

collision or any other issue prior to the accident, and therefore no 

evidence supported the instruction.

In short, Defendants plainly objected to the instructions, and the grounds on 

which they objected were clearly evidentiary ones. Under the Texas Supreme 

Court’s guidelines as reiterated in Thota, Defendants’ objections are more than 

sufficient to preserve the issue on appeal.

The instructions were harmful. For the same reasons discussed under 

sections I and V, these instructions harmed Defendants and probably caused the 

rendition of an improper judgment.
17

III. THE FACEBOOK PHOTOS WERE ADMISSIBLE AND THEIR EXCLUSION 

WAS HARMFUL.

Plaintiff argues that Defendants were trying to ambush her with her own 

photos, which she posted on Facebook for the world to see. The Court should 

reject Plaintiff’s clever attempt to recast the issue. First, there was no ambush. An 

ambush, by definition, requires the element of surprise. See MERRIAM-WEBSTER’S 

COLLEGIATE DICTIONARY 39 (11th ed. 2003). Plaintiff obviously already had 

possession of her own photos, and had the same or better access to them on her 

Facebook page as the Defendants had. Second, Defendants’ counsel disclosed a 

copy of the photographs to Plaintiff’s counsel before trial and even informed 

Plaintiff’s counsel that he intended to offer the photos for impeachment purposes if

Plaintiff testified that she had not hunted since the accident. (2 RR 17–18) 

Second, Plaintiff has not argued that she actually was surprised that the 

hunting photos posted to her Facebook page existed, nor could she credibly make 

such an argument. Plaintiff’s sworn testimony establishes that she took the photos, 

she possessed the photos, and she made the photos available to Defendants and the 

public by posting them to her Facebook page. (5 RR 44–64) And the photos 

depicted her activities. Given the undisputed evidence of the absence of any

surprise, Plaintiff’s contention that Defendants have failed to show unfair surprise 

is nonsensical. See TEX. R. CIV. P. 193.6(a)(2) (excepting evidence that will not 

unfairly surprise other party from exclusionary rule). 
18

Third, the Dallas Court of Appeals’ holding in Lopez v. La Madeleine of 

Tex., Inc., 200 S.W.3d 854 (Tex. App.—Dallas 2006, no pet.), a case on which the 

Plaintiff heavily relies, does not support the exclusion of the photos. Those facts 

are completely different. Lopez involved undisclosed surveillance photos—not

taken by the plaintiff—showing the plaintiff gardening, which the defendant 

offered during trial to impeach testimony that the plaintiff could no longer engage 

in such activities due to injuries he sustained while working for the defendant. In 

considering whether the admission of the surveillance photos was error, the 

appellate court rejected the defendant’s argument that the plaintiff was not unfairly 

surprised “because the undisclosed evidence depicted [the plaintiff] going about 

his own activities—activities of which he was obviously aware.” Id. at 862–63. 

The only conclusion the Lopez holding reasonably can support is that a party may 

not offer undisclosed evidence the other party does not know exists. 

But that is not what happened here. The photos showing Plaintiff hunting 

and engaging in other activities—each of which contradicted her testimony—were 

not obtained by some private investigator defendants hired to dress in camouflage

and follow Plaintiff through the woods. Nor were they obtained from some hidden 

camera. These photos were Plaintiff’s own photos, that she took and made publicly 

available on her Facebook page. Thus, unlike the Lopez plaintiff, Plaintiff knew 

about the photographs before Defendants found them on Facebook. And Plaintiff 
19

had more than just knowledge of the photos’ existence—she had possession, 

custody, and control of the photos. Accordingly, Lopez does not dictate the 

exclusion of the photos here.

Instead, other authorities apply; in these cases the courts found no unfair 

surprise where the party against whom evidence was offered knew the evidence 

existed or had equal access to the evidence. For example, in a case decided around 

the same time as Lopez, the Dallas Court of Appeals concluded that the taxpayer in 

a suit to collect delinquent ad valorem taxes was not unfairly surprised by the offer 

at trial of his tax statements that were not produced in discovery, noting that those 

statements were certified public records to which the taxpayer had the same access 

as the taxing units. Williams v. Cnty. of Dallas, 194 S.W.3d 29, 33 (Tex. App.—

Dallas 2006, pet. denied).

A similar result was reached in Richards v. Tebbe, where the Fourteenth 

Court of Appeals in Houston held the defendant was not unfairly surprised when 

the plaintiff did not produce in discovery the transcript of defendant’s prior 

inconsistent testimony from a criminal proceeding. No. 14-13-00413-CV, 2014 

WL 2936425, at *7 (Tex. App.—Houston [14th Dist.] June 26, 2014, no pet.). In 

rejecting an argument for exclusion of the transcript under Rule 193.6—the same 

rule Plaintiff relies on here—the court concluded there was no unfair surprise 

because “[the defendant] was aware that the testimony existed, and the transcript 
20

was as readily available to him as it was to [the plaintiff].” Id. at 7. The Fourteenth 

Court even cited Lopez for the proposition that rule 193.6 “applies when the 

existence of evidence was not disclosed in a timely manner.” Id.

The case for admission of the Facebook photos is even stronger here than in 

Williams or Richards. Not only did Plaintiff know about the photos—how could 

she not since she admitted using her cell phone to take them—but she possessed 

and controlled the photos. Thus, her access to the photos was not equal to 

Defendants’ access—it was superior. Plaintiff does not cite any authority 

warranting exclusion of the evidence under these circumstances.

Fourth, Plaintiff’s only defense of the trial court’s refusal to admit the photos 

during trial as impeachment evidence is that her counsel did not open the door by 

asking whether she hunted and fished after the accident because he did not inquire 

specifically inquire about her Facebook activities. A question about whether 

Plaintiff posted about hunting on Facebook was not required to open the door to 

the admission of the photos. The dispute here does not concern whether the photos

were posted to Facebook—Plaintiff admitted she did that. The dispute concerns 

whether Plaintiff sustained the injuries she alleged as a result of the accident and 

whether she was able to hunt after the accident. Photos purporting to show Plaintiff 

hunting after the accident directly contradicted her testimony. See, e.g., Barham v. 

Turner Constr. Co. of Tex., 803 S.W.2d 731, 740 (Tex. App.—Dallas 1990, writ 
21

denied) (holding photographs obtained in violation of disciplinary rules, which 

showed plaintiff performing air-conditioning work on rooftop after date of 

accident, were admissible in negligence suit to impeach plaintiff’s claim that he 

was unable to perform various tasks due to injuries).

Finally, the record does not bear out Plaintiff’s assertion that any error in the 

exclusion of the Facebook photos was harmless because Defendants could 

cross-examine Plaintiff and Dr. Calodney about the extent of her physical injuries. 

The trial court’s evidentiary ruling deprived Defendants of any meaningful 

opportunity to challenge Plaintiff’s credibility. The photos could have (i) 

confirmed the initial hospital testing and other testing showing no injury after the 

accident, (ii) confirmed Dr. Calodney’s own notes that up until two months before

trial Plaintiff would not need surgery, (iii) raised a question in a reasonable juror’s 

mind about whether the accident actually was the cause of the surgery, and (iv) 

caused the jury to view in a different light defense counsel’s extensive questioning 

of Dr. Calodney regarding Plaintiff’s many normal medical tests. (5 RR 133:4–

147:25; 6 RR 7:11–41:7). 

Moreover, the photos were not cumulative of other evidence. In this case the 

old adage “a picture is worth a thousand words” rings true. These photos were of 

quite a different character than cross-examination of Plaintiff and one of her 

experts. They show her crouching and holding up a buck’s antlers. And a number 
22

of inquiries could have been made based on the photos. Was Plaintiff hunting by 

herself? How did she get the buck or hogs to and in her truck? Who gutted the 

buck and hogs? Each of these tasks takes strength Plaintiff asserted she did not 

have. 

IV. THE EXPERT TESTIMONY DOES NOT SUPPORT THE JURY’S 

FINDINGS.

The Texas Supreme Court has consistently guarded expert testimony from 

those who attempt to circumvent the safeguards erected to protect the integrity of 

expert testimony. As recently as 2009 the court said, “If courts merely accept 

‘experience’ as a substitute for proof that an expert’s opinions are reliable and then 

only examine the testimony for analytical gaps in the expert’s logic and opinions,”

an expert can effectively insulate his or her conclusions from meaningful review 

by filling gaps in the testimony with almost any type of data or subjective opinions. 

See Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 639 (Tex. 2009) (citing 

Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 722 (Tex. 1998)).

The testimony of Plaintiff’s medical expert, Dr. Calodney, was scientific in 

that it was a medical opinion about whether one of two specific spinal surgeries

should be performed. See Gammill, 972 S.W.2d at 721. Under Daubert and the 

Texas Supreme Court’s interpretations of Daubert, the testimony could not be 

experience-based, like the testimony of an experienced car mechanic’s diagnosis of 

problems with a car’s performance. Id. at 722. To diagnose mechanical problems 
23

with a car, an engineer and engineering principles are not necessarily needed. Id.

But determining what type of spinal surgery is needed requires a scientific opinion 

based on training, skill, knowledge, and experience. Id. Dr. Calodney has none of 

these, and the case law supports a conclusion that he could not testify on what type 

of spinal surgery was needed. 

For example, in Cortez v. Tomas, the court held that a doctor who trained in 

obstetrics and gynecology, taught in the field, performed research in the field, and 

published in the field was not qualified to opine if a surgeon properly removed a 

patient’s ovary and if the postoperative care was appropriate. No. 02-11-00231-

CV, 2012 Tex. App. LEXIS 1092, *9–15 (Tex. App.—Fort Worth Feb. 9, 2012, no 

pet.). Although the doctor was board certified in the area of practice, nothing in his 

CV “discloses or describes [the doctor’s] training or experience performing, 

observing, or teaching other physicians about the surgical removal of an ovary and 

the patient’s postoperative care.” Id. at *15 (emphasis added). 

Likewise, when confronted with conclusory assertions very similar to those 

of Dr. Calodney, the Houston Court of Appeals held that a doctor was not qualified 

as an expert. See Ibrahim v. Gilbride, No. 14-09-00938-CV, 2010 Tex. App. 

LEXIS 9710, *18–20 (Tex. App.—Houston [14th Dist.] Dec. 9, 2010, no pet.). 

That doctor said about his qualifications, “During the course of my more than forty 

(40) years as a medical doctor, I have diagnosed, treated and managed dozens of 
24

patients who suffered from seizure disorders, and have been actively involved in 

the care of and treatment of this type of condition throughout my medical career.” 

Id. at *18.

The court of appeals had this to say about his qualifications.

Notwithstanding any issues regarding the 

vague term “dozens” (whether it means 

twenty-four or more than 1,000 patients), 

Dr. Smith’s statement that he has 

“diagnosed, treated and managed dozens of 

patients who suffered from seizure 

disorders” does not establish Dr. Smith has 

treated these patients for seizure disorders. 

This statement could just as well mean Dr. 

Smith managed the general healthcare of 

these patients or treated them for other 

conditions and they also suffered from 

seizure disorders.

Moreover, Dr. Smith’s statement in the 

remainder of the sentence—that he has 

“been actively involved in the care of and 

treatment of this type of condition 

throughout” his medical career—is vague 

and conclusory . . . . In essence, Dr. Smith 

merely tracks the language of the statutory 

criterion that he “actively practices in 

rendering medical care services relevant to 

the claim,” without providing any facts to 

explain his experience. “Actively involved” 

could mean Dr. Smith has treated patients 

for seizure disorders. However, on the 

opposite end of the spectrum, “actively 

involved” could mean that, if a patient 

whose general healthcare was managed by 

Dr. Smith had a seizure disorder, Dr. Smith 

referred the patient to a specialist and 

merely stayed abreast of the patient’s 
25

progress and the medications prescribed, 

which would not necessarily render him 

qualified to opine on the standard of care for 

such a condition.

Id. at *18–20. 

Another case—where the court found that a doctor was qualified—also is 

helpful by providing contrast between his proof of qualifications and Dr. 

Calodney’s proof. See Tawa v. Gentry, No. 01-12-00407-CV, 2013 Tex. App. 

LEXIS 4828 (Tex. App.—Houston [1st Dist.] Apr. 18, 2013, no pet.). In Tawa, the 

question was whether the attending physician appropriately allowed his patient 

with atrial fibrillation and kidney issues to be taken off an anti-coagulant. Id. at 

*2–3. The expert’s report stated that he had experience treating patients diagnosed 

with atrial fibrillation, that he knew the “standard of care associated with the 

diagnosis and treatment of the illness and injury [the patient] suffered, including 

his atrial fibrillation, the need for anticoagulation, the risks of embolic stroke, and 

management of kidney disease.” Id. at *18. Finally, the doctor stated that he had 

“treated many patients with atrial fibrillation and uncontrolled hypertension,” and 

that he has “knowledge of the risks involved when such patient’s antithrombotic 

treatment is discontinued.” Id.

These cases illustrate the flaws in Dr. Calodney’s testimony. In spite of Dr. 

Calodney’s bluster and theatrical annoyance that anyone might question his 

expertise—“So I’m not sure what sort of challenge you’re going to put forth to me 
26

saying that I can’t testify about these things. Who are you going to find that’s more 

qualified than me?” (5 RR 16: 10–17:19)—Plaintiff failed to establish that Dr. 

Calodney was qualified to testify about what type of surgery Plaintiff required and

whether Plaintiff could ever work again. His answers to questions on his 

qualifications were at the same time grandiose and vague. (5 RR 117:1–13; 129:8–

20) When asked specifically if he was qualified to perform the Plaintiff’s surgery, 

he admitted he was not, but then said that he had “scrubbed in” on some number of 

spinal surgeries without specifying the number or type of surgery or his exact role 

in the surgeries. (5 RR 7:20–8:4, 13:2–23, 14:17–15:1, 16:10–18:17, 116:11–

117:13) He then attempted to conscript the surgery center’s accolades as his own in 

an effort to show that he must be qualified because he was a co-founder of the 

center. (5 RR 16:1– 9)

When boiled down to its essence, Dr. Calodney’s testimony showed that he 

was not trained as a surgeon, has not written articles on the type of surgery 

someone with Plaintiff’s injuries should have, and has not taught on the topic. (5 

RR 16:10–17:19, 38:2–39:22, 50:7–22) In fact, Dr. Calodney testified that when he 

has exhausted all non-surgical options, he refers his patients to spinal surgeons 

who then decide what surgery to perform. Dr. Calodney does not perform the 

surgeries. His specialty deals with pain management pre- and post-surgery. (5 RR 

37:14–38:10) Just how many of his patients had the exact symptoms as Plaintiff 
27

the record does not show. Nor does the record show how many surgeries in which

he “scrubbed in” were of the type he speculated Plaintiff would need. Dr. 

Calodney’s testimony is a classic example of an expert’s ipse dixit. He offered no 

scientific explanation for why a specific surgery would be required, nor could he, 

since he was not a trained surgeon. And his curriculum vitae, though lengthy, does 

not list any surgery experience. 2 (9 RR 84–114; DX 31)

Deficits also undermine Dr. Calodney’s opinion on whether Plaintiff would 

be able to work again. To begin with, his vocational rehabilitation opinions are 

based on what type of surgery Plaintiff would have and his knowledge of the 

recovery from that type of surgery. (5 RR 50:5–51:3) If Dr. Calodney is not 

qualified to testify to what type of surgery Plaintiff would have, then his vocational 

rehabilitation testimony based on that opinion is unreliable. 

Second, he testified that he is not a trained vocational rehabilitationist and 

that he did not perform a job site evaluation for Plaintiff. (4 RR 8:15–9:5) Instead, 

he testified that he has treated patients with ruptured discs “for years,” though he 

did not say how many of these patients he had seen. (5 RR 11:13–12:14, 19:2–23)

He did not say that the treatment of and recovery from a ruptured disc in all 

 2 In some cases a medical expert who is testifying about the appropriateness of the defendant 

doctor’s actions need not be a specialist in the defendant’s particular area of practice if the 

subject matter of the claim is common to and equally recognized and developed in more than 

one field of practice, and the expert is qualified in one of those fields. See Christus Health Se. 

Tex. v. Broussard, 267 S.W.3d 531, 534–35 (Tex. App.—Beaumont 2008, no pet.). This 

record does not support the application of the doctrine.
28

sections of the spine are the same. Moreover, his opinion that Plaintiff could not 

work as a nurse and could secure at most wages at $11 an hour was based on 

Plaintiff having both disc and cervical issues. (6 RR 49:21–50:4, 51:4–16) 

Nowhere in the record does Dr. Calodney say that he has treated numerous patients 

with both disc and cervical issues; he says only that he has “seen it time and again 

over a period of 20 years.” (6 RR 51:4–16) As the Ibrahim and Cortez courts 

pointed out, this does not mean that he treated these patients himself and is 

insufficient. Ibrahim, 2010 Tex. App. LEXIS 9710, at *18–20; Cortez, 2012 Tex. 

App. LEXIS 1092, at *15. 

Even his testimony that the disc injury itself would prevent Plaintiff from 

working as a nurse is conclusory. He does not say how many patients he has 

treated with this injury, how many nurses he has treated with this injury, or if other 

nurses he has treated with this injury were unable to return to work. (5 RR 12:3–

13:18) He testified that he has “done disability determinations for [his] patients 

who have spinal injuries” and that part of what he does is determine whether they 

can return to work, but again the testimony is very broad in scope rather than 

specific. (5 RR 19:2–23)

In Gammill, the Texas Supreme Court stated that courts must “ensur[e] that 

those who purport to be experts truly have expertise concerning the actual subject 

about which they are offering an opinion.” Gammill, 972 S.W.2d at 719 (quoting 
29

Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996). In a later opinion, that Court 

explained that the Robinson factors apply even to testimony that is based more on 

experience. Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800–04 (Tex. 

2006). There the Court applied the six Robinson factors and found the expert 

lacking in qualifications and the testimony unreliable. The six factors are:

1. the extent to which the theory has been or can be 

tested;

2. the extent to which the theory relies upon the 

subjective interpretation of the expert;

3. whether the theory has been subjected to peer review 

or publication;

4. the theory’s potential rate of error;

5. whether the underlying theory has been generally 

accepted as valid by the relevant scientific community; 

and

6. the non-judicial uses made of the theory.

Id. at 801.

Dr. Calodney’s theory is that a person with Plaintiff’s injuries will never 

work again as a nurse and that if she works, she will work only part time in clerical

jobs. Setting aside the peer review requirement in factor 3 and the potential rate of

error in factor 4, as the Gammill court noted could be done, see Gammill, 972 

S.W.2d at 723, the remaining factors show that Dr. Calodney’s testimony is not 

reliable. 
30

Dr. Calodney’s theory could be tested but has not been (factor 1). Dr. 

Calodney did not refer to any literature discussing this type of injury and the 

likelihood that a person could return to work as a nurse or as a part-time worker. 

Dr. Calodney’s theory also is entirely subjective (factor 2). He cited no literature, 

did not give a sampling size from which he based his theory, and at one point even 

stated that he would not hire someone with Plaintiff’s injuries to work in his office. 

(5 RR 12:15–13:5) The theory also has not been published—or if it has, Dr. 

Calodney did not refer to the literature (factor 3). If literature did exist on the topic, 

he could have presented it to the court. We also have no idea whether the 

vocational rehabilitation community agrees with Dr. Calodney’s theory (factor 5). 

His CV does not refer to any training, seminars, or publications he has received in 

the area, nor did Dr. Calodney refer to any literature that would support his theory. 

(9 RR 84–114; DX 31) Finally, we have no information on the non-judicial uses of 

the testimony, in part because he refers to nothing other than his own opinion

(factor 6). 

In short, the Robinson factors confirm that Dr. Calodney’s vocational 

rehabilitation testimony was unreliable. Although he testified that he was a 

designated doctor for worker’s compensation evaluations, this testimony was nonspecific; he never stated that he had evaluated numerous patients in Plaintiff’s 

condition. (5 RR 19:2–23) See Pediatrix Med. Serv. Inc. v. De La O, 368 S.W.3d 
31

34, 40 (Tex. App.—El Paso 2012, no pet.) (holding that doctor who was board 

certified in neonatology and pediatrics and was familiar with policies and 

procedures for ensuring screening for ROP was not qualified to testify regarding 

pediatric ophthalmology, ROP pathology, or the general effectiveness of ROP 

treatments because she did not have the experience, knowledge, training, or 

education in these areas); see also Tenet Hosp. Ltd. v. Love, 347 S.W.3d 743, 748–

750 (Tex. App.—El Paso 2011, no pet.) (holding that doctors’ reports and CVs 

cited merely that doctors were specialists and had served on numerous hospital 

committees but did not show that doctors had experience in (1) setting hospital 

policies and procedures, (2) requiring hospitals to staff certain specialists under 

certain circumstances, or (3) running a hospital). 

Dr. Calodney’s testimony was used to support an award of lost wages of 

more than $1.4 million. In light of such a large award, his testimony should be 

carefully scrutinized with the Robinson factors; this scrutiny will reveal the many 

deficits in his testimony and show it to be mere ipse dixit.

With regard to Plaintiff’s lost-wage expert, Defendants will stand on their 

original brief. Nothing in Plaintiff’s brief raises any real question about the validity 

of Defendants’ attacks on this expert.

V. THE CATCH-ALL “STATUTORY EMPLOYEE” SPECTRE IS A RED 

HERRING.

Plaintiff claims that every error—other than the Facebook-photo and expert-
32

related error—is harmless based on her claim that Smith was Medallion’s statutory 

employee. (App. Br. at 19–21 (the spoliation instruction), 27 (the negligence 

instructions), 44–45 (joint and several liability for Rushing))

Defendants have already addressed in their initial brief why Plaintiff should

not be allowed to argue that Medallion and Rushing are vicariously liable when she 

refused such a stipulation at trial, presumably for tactical reasons. (Ant. Br. at 47–

48, n.9) Beyond this, the argument also is flawed. 

First, Plaintiff claims that Medallion and Rushing were vicariously liable for 

Smith, but the law is not as clear as Plaintiff claims in her two-paragraph 

superficial review of federal law and motor carriers. Plaintiff cites Tamez v. 

Southwestern Motor Transport, Inc. for the proposition that Medallion was 

vicariously liable for Smith, but then fails to note that in that case, the court found 

that the two drivers were not statutory employees of the carrier. 155 S.W.3d 564, 

573 (Tex. App.—San Antonio 2004, no pet.). (App. Br. 20–21) More importantly, 

the Tamez court quoted language from the relevant federal regulations stating that 

an independent contractor relationship may still exist between a carrier and the 

lessor (Rushing) or the lessor’s driver when a carrier lease complies with 49 U.S.C. 

14102 and attendant administrative requirements. Id. (quoting 49 C.F.R. §

376.12(c)(1)) (emphasis added). 
33

The record does not contain any indication whether or not Medallion 

complied with any attendant administrative requirements, although Medallion’s 

and Rushing’s lease agreement states quite clearly that Rushing and Smith are 

independent contractors. (8 RR 57 ¶ 9). At this point in the proceedings, it is 

impossible for Medallion to submit additional evidence to prove whether it did or 

did not comply with “attendant administrative requirements” that would authorize

an independent contractor relationship. It would be improper to penalize Medallion 

for not introducing this evidence, when Plaintiff refused Defendants’ stipulation 

that Smith was Medallion’s employee and failed to obtain any finding from the 

jury on this issue. 

Second, even if Smith was Medallion’s statutory employee, all Defendants 

were harmed by the spoliation and negligence instructions, by the admission of 

spoliation evidence, and by the judge’s refusal to allow impeachment questioning 

concerning the Facebook photos showing Plaintiff hunting. As a result of each of 

these rulings, all Defendants were painted as liars and deceivers while Plaintiff 

remained a saint. 

Defendants’ goal was to show that Plaintiff had some responsibility for the 

accident. After all, it was dark, she was going at least 50–55mph, she saw Smith’s 

truck travelling at a very low speed in the lane next to her, she did not slow down. 

(3 RR 75; 7 RR 14–17) But the jury was not likely to believe that Plaintiff was 
34

driving too fast based on testimony from an “incompetent” driver (or the claim of

one who hired the incompetent driver) or from people who worked with a company 

that destroyed evidence.

Thus the harm to Defendants is not that the jury might assess different fault 

percentages to each Defendant—though that might happen; the harm is that the 

jury was too prejudiced by the improper rulings to consider whether Plaintiff was 

negligent, much less to assess any negligence on Plaintiff. Vicarious liability does 

not trump this harm, which probably caused the rendition of an improper 

judgment.

CONCLUSION

Defendants ask this Court to reverse the trial court’s judgment and to 

remand for a new trial for Smith and Medallion on all issues or, alternatively, to 

modify the judgment to (1) render judgment on certain damages awards that are 

not supported by the evidence and (2) provide that Medallion and Rushing are not 

jointly and severally liable. Appellants also ask the Court to enter a take-nothing 

judgment in favor of Tomy Rushing, whom the jury found was not negligent.

Respectfully submitted,

/s/ Wanda McKee Fowler

Thomas C. Wright

State Bar No. 22059400

Wanda McKee Fowler
35

State Bar No. 13698700

Shelley J. White

State Bar No. 24056520

WRIGHT & CLOSE, LLP

One Riverway, Suite 2200

Houston, Texas 77056

Tel: 713-572-4321

wright@wrightclose.com

fowler@wrightclose.com

white@wrightclose.com

G.R. (Randy) Akin

State Bar No. 00954900

G.R. RANDY AKIN, PC

3400 W. Marshall Avenue, Suite 300

Longview, Texas 75604

Tel: 903-297-8929

gra@randyakin.com

Counsel for Appellants 
36

CERTIFICATE OF SERVICE

I hereby certify that, a true and correct copy of this document was served on 

all counsel of record in this case, identified below, on January 9, 2015, 

electronically through the electronic filing manager in compliance with the Texas 

Appellate Rules of Civil Procedure:

David M. Gunn 

Erin H. Huber

BECK REDDEN LLP

1221 McKinney, Suite 4500

Houston, TX 77010

dgunn@beckredden.com

ehuber@beckredden.com

Brent Goudarzi

Geoffrey G. Hoover

GOUDARZI & YOUNG

P.O. Box 910

Gilmer, Texas 75644

brent@goudarzi-young.com

ghoover@goudarzi-young.com

John R. Mercy

MERCY CARTER TIDWELL LLP

1724 Galleria Oaks Drive

Texarkana, Texas 75503

jmercy@texarkanalawyers.com

/s/ Wanda McKee Fowler

Wanda McKee Fowler

CERTIFICATE OF COMPLIANCE

I certify that this Brief as Appellant complies with the typeface and wordcount requirements set forth in the Rules of Appellate Procedure. This Brief has 

been prepared, using Microsoft Word, in 14-point Iskoola Pota font for the text and 

12-point Iskoola Pota font for any footnotes. This Brief contains 7,261 words, as 

determined by the word count feature of the word processing program used to 

prepare this document, excluding those portions of the notice exempted by TEX. R.

APP. P. 9.4(i)(1).

/s/ Wanda McKee Fowler

Wanda McKee Fowler