## In The Court of Appeals Seventh District of Texas at Amarillo

No. 07

- 12

- 00546

- CV

TYSON FRESH MEATS, I NC., APPELLANT

V. MAHDEY ABDI, APPELLE E On Appeal from the 108th District Court Potter County, Texas Trial Court No. 98,050

- E, Honorable Douglas Woodburn, Presiding
May 28, 2014 

### MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. Tyson Fresh Meats, Inc. (Tyson) appeals from a judgment rendered in favor of Mahdey Abdi (Abdi) . The latter was injured while working at Tyson’s meat

- packing plant. His arm was crushed after becoming stuck in a conveyor belt he attempted to clean. The belt was off when Abdi began his task but somehow engaged before the job was completed. Suit followed, wherein Abdi accused Tyson of negligence in failing to 1) have a delayed start signal befo re the belts were energized and 2) properly train him in2

" lock

- out procedures. " Trial was to a jury, which rendered a verdict favoring Abdi. Judgment was entered upon that verdict, and this appeal ensued. Tyson poses six issues for review. Three conce rn the admission of expert testimony proffered by a Dr. Johnston, while the others pertain to the admission of accident reports, jury argument, and the factual sufficiency of the evidence underlying an award of damages. We affirm. Admission of Expert's Te stimony We first address the matter of Johnston's expert testimony. Tyson asserts that it was inadmissible on three grounds. We review the complaints under the standard of abused di scretion. Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex. 2009) (s tating that admission of expert testimony is reviewed under the standard of abused discretion) . That standard prohibits us from interfering with the trial court's decision unless it deviated from controlling guidelines, rules , or principles or was otherwi se unreasonable or arbitrary. Brinker v. Evans , 370 S.W.3d 416, 422 (Tex. App.

— Amarillo 2012, pet. denied)

. Finally, the burden lies with the appellant to establish that the trial court abused its discretion. Id

. Statutory Bar Through its first issue, Tyson argues that " the trial court’s admission of

. . . Jo hnston’s testimony contravene s an express statutory prohibition against such testimony. Johnston testified as to professional engineering issues about which he is statutorily prohibited from testifying. " Th at is , "the Texas Occupational Code

. . . expressly states that an individual without a valid and active engineer ing license is prohibited from ' providing an expert engineering opinion or testimony.' TEX. OCC.3

CODE §§ 100 1.301; 1001.355; 10 01.003(c)(1) , " "Johnston’s engineering license

. . . [was] inactive " when he testified, and he " was, therefore, statutorily prohibited from offering an expert engineering opinion ." We overrule the issu e

. 1
S tatute require s active licensure before one may e ngage in the " practice of engineering. " See T EX

. O CC

. C ODE A NN

. § 1001.301(a) ( West 2012 ); § 1001.355(a) (stating that a license holder on inactive status may not practice engineering). Furthermore, the "practice of engineering" is defined as " the performance of or an offer or attempt to perform any public or private service or creative work, the adequate performance of which requires engineering education, training, and experience in applying special knowledge or judgment of the mathematical, physi cal, or engineering sciences to that service or creative work ." Id. § 1001.003(b). It also encompasses

" consultation, investigation, evaluation, analysis, planning, engineering for program management, providing an expert engineering opinion or testimony , engineering for testing or evaluating materials for construction or oth er engineering use, and mapping." Id. § 1001.003(c)(1) ( E mphasis added). However, the statute "does not

. . . prohibit or otherwise restrict a person from giving testimony or prepari ng an exhibit or document for the sole purpose of being placed in evidence before an administrative or judicial tribunal, subject to the board's disciplinary powers under Subchapter J regarding negligence, incompetency, or misconduct in the practice of eng ineering ." Id. § 1001.004(e)(2).

1 Abdi proffered Johnston as an expert in "human factors" and "industrial safety ." Moreover, Tyson 's counsel stated below that "[a]s a human factors expert, while I may quarrel with him [Johnston] about whether he can do it or not, or he's experienced enough, I don't thin k under a Robinson/Daubert challenge on that single issue of human factors

. . . that

-- that he is dis qualified. " (Emphasis added).4

Though "judicial tribunal" is not defined in the statute, the plain meaning of "judicial " connotes " of or relating to a judgment, the function of judging, the administration of justice, or the judiciary ," M ERRIAM - W EBSTER ’ S C OLLEGIATE D ICTIONARY 677 (11 th ed. 2003) , while the plain meaning of "tribunal" includes " a court or forum of justice " or " something that decides or determines ." Id. at 1335 . The parameters established by those definitions easily encom pass a court of law such as the district court at bar. Thus, a trained engineer holding an inactive license, like Johnston, would not be prohibited from offering an expert opinion during a trial. Tidwell v. Tere x Corp. , No. 01

- 10

- 01119

- CV, 2012 Tex. App . L EXIS 7724 , at *32

- 34 (Tex. App.

— Houston [1st Dist.] August 30, 2012, no pet. ) (mem. op.) (holding that the trial court did not abuse its discretion in permitting an unlicensed engineer to render an expert opinion because it

" could have found that the Occupation Code did not prohibit Closson's testimony because it fell within the testimonial exception ” ); State v. Northborough Ctr., Inc. , 987 S.W.2d 187, 194 (Tex. App.

— Houston [14th Dist.] 1999, pet. denied ) (holding the same after applying the simi larly worded predecessor to § 1001.004(e)(2)). 2 So, § 1001.003(c)(1) did not ipso facto bar Johnston from testifying as an expert. We further note that the Texas Rule of Evidence governing experts and their testimony, that is , Rule 702, says nothing about one needing a license to testify as an

2 We note Tyson's effort to distinguish both Tidwell and Northborough because neither purportedly focused on the omission of the word "expert" in § 1001.004(e)(2) or its predecessor. It may be that § 1001.003(c)(1) uses the word in describing what constitutes the practice of engineering. Yet, to suggest that because the legislature omitted the word "expert" when permitting unlicensed engineers to testify in a "judicial tribunal" somehow means it never intended such an individual to render an expert opinion in a "judicial tribunal" is an unacceptable application of the rules of statutory construction. Section 1001.004 expres sly addresses testimony in a court of law, while § 1001.003 addresses the general practice of engineering and the provision of expert testimony in general. So, what we have here is the legislature selecting a specific instance or setting wherein an unlice nsed engineer may testify and, thereby, removing him from the generality of § 1001.003(c)(1). And, as we know, statutes addressing specific matters are to be interpreted as governing statut es addressing general matters. See In re Platinum Energy Solution s , 420 S. W.3d 342, 346, 348 (Tex. App.

— Houston [14 th Dist.] 2014) (orig. proceeding).5

expert. The rule mentions qualification s based on knowledge, skill, experience, training or education, not licensure. T EX

. R. E VID

. 702. So, an expert is not obligated to have a license to testify under the Supreme Court's own rules of evidence if the person is otherwise qualified under Rule 702. Tidwell v. Terez Corp. , supra ; State v. Northborough Ctr., Inc. , supra. Unqualified Through its second issue, Tyson argues that the trial c ourt erred in allowing Johnston to testify about the lack of a delayed warning system because he " failed to meet the legal standard under Texas Rule of Evidence 702 to qualify as an expert in the design and implementation of such systems. " We overrule the issue. Again, the applicable standard of review is o ne of abused discretion. Under it, we cannot simply substitute our own judgment for that of the trial court. Our obligation is to defer to the trial court’s decision if it comported with controlling guidelines. With this in mind, we also note the teaching of Mack Trucks v. Tamez , 206 S.W.3d 572 (Tex. 2006). There we are told that expert witnesses may testify if the opinion is relevant and ba sed on a reliable foundation

. Id. at 578. And, in applying Mack Truck s and the standard of review , we begin by focus ing on the reason f or which Johnston was proffered and the nature of his testim ony. Abdi called Johnston as an expert on "human factors" and industrial safety

. 3 As such, he investigated industrial accidents and their cause s . And while Johnston

3 According to Johnston:

. . . human fa ctors is a specialty area that basically recognizes that

. . . the human is not perfect. We

-- human beings have tremendous cap abilities, but they also have certain limitations, and the human factors field recognizes this. And when they're designing tools or equipment or workp laces or office furniture, what have you, they try to design those tools and equipment and facilities to t ake into consideration the capabilities of the human, but also the limitations, and try to match that with the characteristics of the6

acknowledged that he had not designed a delayed warning system or s een one in a
meat
- packing plant, he also attested that he " cannot give testimony, as an engineer, and [he] cannot do engineering

. . . [he is] not giving testimony as an engineer .” Rather he was testifying " as a cert ified safety professional. " He further explained, in response to a query about whether he was "pretty near an expert on just about any topic an ybody is willing to pay you for," the witness replied: No, that's not true. I'm an expert in the narrow relationship between the human and that product. I'm not an expert in any of those products. I couldn't design any of those products. So those products were designed by mechanical and electrical engineers, which I'm not. The human factors field and the sa fety field looks at that relationship between the user of the equipment or the user of the product and looks to see if it is safe. And if it's unsafe, they recommend ways to make it safer. They don't do the work, but an electrical engineer or a mechanical engineer will come in and make those modifications. So the human factors, we look at a really narrow aspect. That's the human machine or the human product interface and that's the area of my expertise. And, yes, it involves a lot of different products ove r some 40 years.

equipment to make that tool or equipment as efficient and effective as possible. For instance, in the automobile, the human factors would be desi gning the seats so not only for comfort, but for all

-- all different age groups to be able to reach the control s and lay out the controls in a way. So that's what human factors

-- it's kind of the optimum

-- it's trying t o desig n for optimum human use, to make it easy and safe for humans to use

.

* * * Industrial safety

-- and it's sometimes referred to as occupatio nal safety

-- that's everything that's involved in providing a safe workplace. It involves training the individual. It involves the equipment that they're going to use, to make sure that the equipment is maintained properly. It involves safe work procedures, so that the people know how to do their work. It involves getting safety rules and safety procedures. It involve s safety inspections because you can't just make a bunch of rules and say here's the rules, because we know that some people may break the rules or what have you. So you

-- it involves the adequate supervision to make sure that the rules are being followed . All

-- everything that goes into trying to prevent injuries, prevent a ccidents, and make the job as safe as practical.

* * * Another part of industrial safety is the actual products that th ey use, to make sure that those products have taken human facto rs into consideration, and that those products are relatively safe for the way that they are meant to be used.7

The substance of his testimony also focused upon the absence of safety items from the bone room wherein Abdi received his injuries. He talk ed about such things as the lack of warning signs and audible or visual warning devices. Moreover , his testimony about the need for such devices or warning measures was based upon industry safety standards developed by the American Society of Mechanical Engineers or ASME and made applicable to conveyor belts. He further said that ASME standards

were relied upon by "certified safety professionals" like him. The ASME standard deemed applicable was that numbered B20.1. It provided, among other things, that: 1) a conveyor that would cause injury when started, shall not be started until personnel in the area are alerted by a signal or designated person that the conveyor is about to start; 2) when a conveyor that would cause injury when started is automatically controlled or must be controlled from a remote location, an audible device or devices shall be provided that can be clearly heard at all hazardous points along the conveyor where personnel may be present; 3) the audible warning shall be actuated by the controller device starting the conveyor and continue for a required period of time before the conv eyor starts; 4) a flashing light or similar visual warning may be used in conjunction with or in place of the audible device if a visual warning is more effective; and 5) where system function would be seriously hindered or adversely affected by the requi red time delay, or where the intent of the warning may be misinterpreted, ( e.g , in a work area with many different conveyors and allied devices) a clear, concise , or legible warning sign shall be provided and the warning sign shall indicate that conveyors a nd allied components may be started at any time , that danger exists , and that personnel must keep clear.8

More importantly, in assessing whether Johnston was indeed qualified as an expert, th e trial court heard a n excerpt from the deposition of Tyson's ow n expert concerning ASME standards. H e said: "Yes, I beli eve the ASME standards do apply," though he did not "believe that they indicate that an audible warning would apply in this

case

. " (Emphasis added). We are not directed to anything of record indicating that the same witness believed the visual warning standards of ASME B20.1 were inapplicable. Not only was this concession by Tyson's expert heard by the trial court when deciding whether to qualify Joh nston as an expert but it also contradicts Tyson's present contention that " Johnston

. . . expressed engineering opinions that were inconsistent with industry standards. " Again, Tyson’s expert told the court the standards applied to the industry involved. And, to the extent that Johnston purportedly offere d an opinion about the design of a warning system when describing the location at which the safety measures s hould be installed, it appears the observation was also based on the very same ASME standard

. A s mentioned above, one of its subpart s stated that " when a conveyor that would cause injury when started is automatically controlled or must be controlled from a remote location, an audible device or devices shall be provided that can be clearly heard at all hazardous points along the conveyor where personnel may be present. " (Emphasis added). Johnston opined that t he locale s at which the warning devices should have been installed on the Tyson conveyor belt system were the "pinch points" within the system. He compared them to rollers installed on old washing machines
t hrough which the user rolled wet clothes to remove excess water. " From a human factors standpoint, you would want to locate

. . . [the warnings] near th e pinch point,9

near the roller

. . . that's the danger point

. . . , " according to Johnston. (Emphasis added). So, it can be said that the witness was not actu ally designing a safety system but applying ASME safety standards to a conveyor designed by others. In short, it may well be that Johnston was not qualified to testify about the design and implementation of safety systems . Yet, that was not the focus of h is testimony

. Abdi proffered him as a human factors and industrial safety expert. His expertise dealt with analyzing the safety measures implemented in various industries via the application of, among other things, ASME standards that Tyson's expert relu ctantly deemed relevant. While his opinions could affect the design of industrial mechanisms, like conveyor belts, he left their design to others. We further add to that Tyson’s acknowledgement of Johnston as being a qualified human factors expert. These indicia provided ample basis upon which t he trial court could ha ve reasonably concluded that Johnston was not attempting to design a safety system but rather was opining about ASME safety measures that engineers should consider in designing equipment

. So, w e do not consider the decision to admit the witness' testimony as an instance of abused discretion. Expert Testifying as a Fact Witness Tyson next contends that " no scientific, technical, or other specialized knowledge

was necessary to determine wh ether Tyson failed to properly train the Plaintiff

. ” Accordingly, Johnston’s testimony on this issue allegedly was outside the scope of expert testimony allowed by Rule 702, and the trial cour t’s admission of such testimony was an abuse of discretion. We overrule the issue.10

Again, the standard of review is one of abused discretion. Next, a n expert witness may testify on matters where specialized knowledge will assist the trier of fact to understand evidence or to determine a fact in issue. T EX

. R. E VID

. 702. Furthermore, expert testimony a ssists the trier of fact when the expert’s knowledge is beyond that of the average juror. K

- M art Corp. v. Honneycutt, 24 S.W.3d 357, 360 (Tex. 2000). What Tyson asserts here is that the jury did not need expert testimony from Johnston on whether Abdi was properly trained since a fact witness could have testified about the matter. Yet, Johnston was not simply asked whether Abdi recei ved proper training on the lock

- out /tag

- out system i n general. He also endeavored to explain why the training was deficient, and that was influenced by his expertise in human factors and industrial safety. The record illustrates that Tyson trained its employees working at t he conveyor belts on the us e of its lock

- out/tag

- out system. So too does it illustrate that Abdi attended such a classroom training session. When asked, though, whether " just showing an employee in a classroom how to move that knife disconnect from on to off and put a lock on it would

. . . qualify him to go out on Tyson's floor and lock and tag out a conveyor belt

. . . , " Johnston replied: " In my opinion, it would not. " In answer to being asked "why not ," the witness said such things as 1) "[b] ecause it's not specific to whatever he's locking out, the actua l

-- that's just the first step ," 2) "[y] ou still need to go to the specific equipment that's out there, to locate where that box is and locate where all the other feat ures of that piece of equipment is , " and 3) classroom trainin g was insufficient because "[t] hey should demonstrate on the actua l equipment that they're locking out, that they know how to complete the entire lockout procedure. " The witness11

also indicated that knowing how to look at a notebook and find an equipment s pecific lockout/tagout procedure did not actually qualify an employee to tagout that item

. So, when asked if Abdi was sufficiently trained "

. . . when he was injured on BT

- 4 [bone table 4] based on what you know about the training that he had received, an d the location where he was injured

. . . , " Johnston said , " Not in my opinion. " It has to be remembered that the foregoing testimony was proffered by a "human factors" expert and "certified safety professional" retained to investigate the cause of accidents. 4 And, it i s the task of a "human factors" expert , according to Johnston, to consider the "capabilities" and "limitations" of the human being " and try to match [them] with the characteristics of the equipment to make that tool or equipment as ef ficient and effective as possible." The "tool" or "equipment" in question at the time was the lockout /tag

- ou t mechanism utilized by Tyson, and Johnston was explaining why, given his experience with and consideration of human "capabilities" and "limitatio ns , " the training provided was not enough. So , more was being asked th a n simply whether Tyson tra ined Abdi. The trial court could have reasonably interpreted Johnston’s testimony as effort to explain for the jury that learning something in a classroom doe s not necessarily mean the student knows the subject. Purportedly more was needed here, and it involved the provision of actual experience with or in the subject matter being taught. While some people learn through their own experience that experience is the best teacher, we cannot say that reiterating the truism to a jury fell outside the expertise of someone like Johnston who was trained in people, their capabilities, their limitations, and their understanding.

4 We reiterate that Tyson acknowledged Johnston to be an expert in "human factors

. " Implicit in that acknowledgement is the concession that such an expertise exists. Indeed, one cannot be an expert in a non

- existent field, and Tyson does not conten d here that no such field exist s

.12

Simply put, the trial court had to exerci se its discretion to decide if Johnston 's specialized knowledge in the realm of "human factors" would assist the trier of fact in understand ing why the training was deficient. T he manner in which it exercised its discretion cannot be faulted as unreasonab le or as a deviation from co ntrolling rules or guidelines un der the circumstances it had before it. Admission of Accident Reports Tyson next complains of the admission into evidence of two accident reports prepared by employees of Tyson. One was prepared by a nurse employed by Tyso n and was based on information provided by Abdi. The other was prepared by Bobby Archie and was based on information learned from another employee named Jones. As such , they allegedly constituted inadmissible hearsay. We overrule the issue. Abdi and the nurse testified at trial, as did Jones and Archie via their depositions. Furthermore, portions of their testimony as well as other evidence proffered at trial covered the substance of what was said in both reports. So, the content of those reports was redundant of other evidence admitted into the record without objection.
T o the extent that Tyson found one aspect of the nurse's report troubling ( i.e. , the suggestion that the accident was not caused by deviating fro m a safety rule or regulation), that matter was broached again by counsel for Abdi while reading from Jones' deposition . More importantly, T yson did not object when Abdi revisited it

. We further note that the Jones deposition excerpt read by Abdi’s couns el expressly contradicted what the nurse said about the accident having no connection to some deviation from safety protocol

. Given these circumstances, we cannot say that the admission of the two report s , if error, was harmful. Benavides v. Cushman, Inc

. , 18913

S.W.3d 875, 885 (Tex. App.

— Houston [1 st Dist.] 2006, no pet.) (holding that inadmissible evidence is rendered harmless when similar evidence is admitt ed elsewhere without objection). 5 Improper Closing Argument Tyson’s next issue concerns allegedly improper, incurable jury arg ument. The argument consisted of the following: This is a company

- - Tyson is a huge company. They are responsible for processing food that you eat, that we all eat, that our society eats. They won’t even follow th e OSHA regulations. What do you think they’re doing out there on the regulations regarding the safety of food? What do you think they’re doing? We’ve proven that they don’t even follow the regulations for OSHA, for the safety of their employees. How do you think they fe e l about your safety? How do you think they feel about my safety? No obj ection was made to it during trial. However, Tyson complained of it via a mo tion for new trial . Though that preserv ed the issue for review, the delay foisted upon the same party the obligation of establish ing that the argument was incurable. Cottman Transmission Sys., L.L.C. v. FVLR Enters., L.L.C., 2 95 S.W.3d 372, 379 (Tex. App.

— Dallas 2009, pet. denied).
I ncurable jury argument is rare. Living Ctrs. o f Texas , Inc. v. Penalver, 256 S.W.3d 678, 681 (Tex. 2008). But, it arises when , by it s nature, degree, and extent, the argument constituted such error that an instruc tion to disregard could not remove its effects. Id. at 680

- 81. That is, the argument m u st strike at the appearance of and the actual impartiality, equality, and fairness of the justice rendered by courts. Id. at 681.
P reviously recognized types of incurable argument have included: (1) appeals to racial

5 Tyson also believes it suffered prejudice beca use the jury asked to see the n urse's report. Yet, we are cited to and found nothing of record suggesting that the information perused in that report differed from the evidence already admitted elsewhere without objection. So, the inference of harm arisi ng from the jury's request is founded simply on speculation.14

prejudice; (2) the use of inflammator y epithets such as "liar," "fraud," "faker," "cheat," and "imposter"; and (3) unsupported charges of perjury and witness tampering

. Id. at 681; Wilhoite v. Sims , 401 S.W.3d 752, 763 (Tex. App.

— Dallas 2013, no pet. ). To reiterate, t he focus lies on whethe r the argument, when considered in its proper setting, was reasonably calculated to cause such prejudice to the opposing litigant that a withdrawal by counsel or an instruction by the court, or both, could not eliminate the probability that it resulted in an improper verdict. Living Ctrs. Of Texas, Inc. v. Penalver , 256 S.W.3d at 681, quoting Tex. Employers’ Ins. Ass’n v. Haywood , 153 Tex. 242, 266 S.W.2d 856 (1954). Finally, we generally presume that jurors follow the instructions provided them by the court. Columbia Rio Grande Healthcare, L.P. v. Hawley , 284 S.W.3d 851, 862 (Tex. 2009). Though improper, t he argument before us was a relatively brief , one - time
comment . It encompassed neither inflammatory epithets, appeals to r acial or other reprehensible prejudices, nor false accusations implicating the integrity of the judicial
process. Furthermore, Tyson cites us to no authority holding jury argument akin to that at bar was incurable. Consequently, we are unable to find it of the ilk that could not have been remediated by a timely and proper instruction from the trial court. Factual Sufficiency of Evidence of Past Lost Earnings Finally, Tyson argues that the evidence is factually insufficient to support the jury’s award of past lost earnings. It believed that Abdi should have recovered no more than $19,050. Its argument is founded upon the supposition that the applicable period of los s was that between the date of injury and the date on which he was cleared to
return t o work. Yet, lost wages refers to the actual loss of income due to the inability to15

perform a specific job from the time of injury to the time of trial

. Scott's Marina at Lake Grapevine Ltd. v. Brown , 365 S.W.3d 146 , 158

- 59 (Tex. App.

— Amarillo 2012, pet. denied ); Koko Motel, Inc. v. Mayo, 91 S.W.3d 41, 51 (Tex. App.

— Amarillo 2002, pet. denied). The latter period here was approximately three years. 6 Additionally, Abdi was making about $450 per week at the time of the accident. Multiplying $450 (the sum received weekly) by 4 (the average number of weeks in a month) by 36 (the number of months in three years) derives a product of $64,800. So, the overwhelming weight of
evidence shows that Abdi was entit led to much more tha n the $19,0 5 0 suggested by Tyson. We overrule the issue. Having overruled each issue, we affirm the judgment

.

Brian Quinn Chief Justice

6 The accident happened on September 9, 2009, and Abdi was medically cleared to return to work on July 27, 2010. However, he never returned because he still suffered pain and weakness in his arm and hand sufficient to prevent him from doing his job. Instead, he periodically sold cars and earned at most $500 per week. Some weeks he earned nothing at all. Furthermore, trial of the cause was held on August 28

- 31, 2012 , about t hirty

- six months after the i ncident.