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Breaking Legal Developments


Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor


EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Texas Court Reverses Verdict for Plaintiff's in Gas Explosion
  2. Expert's Burn Testimony Exclusion Upheld


In Y Propane Service, Inc. v. Garcia, No. 04-99-00880-CV, August 15, 2001, the Texas Court of Appeals Fourth District reviewed a jury verdict for the plaintiffs in a gas explosion case. The court initially upheld the verdict based on the conflicting evidence, however it reversed because jury excusals were not equal between the aligned parties.

The opinion is noteworthy for its discussion of the failure causing the explosion noted below. In late 1996, Amando Peņa, Sr. suggested that one of his employees, Francisco Garcia, move with his family to the smaller of two houses located on Peņa's Los Morenos Ranch in Starr County. Approximately one year after the move, on December 7, 1997, Garcia suffered fatal injuries when an accumulation of propane in the house exploded. Shortly after the explosion, Garcia's widow, Maria, and his children sued "Y" Propane for negligently causing Garcia's death.

The facts surrounding the explosion are not in substantial controversy. When Garcia and his friend, Lionel Miranda, walked into the house, they smelled a strong gas odor. Garcia noticed that the rubber supply hose to the propane stove had been damaged by mice or a rat, so he went outside to shut off the valve on the 150-gallon propane tank behind the house. When he returned, he opened the refrigerator to remove two soft drinks. Moments after the refrigerator cycled on, the propane exploded.

The parties' experts agreed that a leak in the rubber hose had caused a substantial accumulation of propane, which was ignited when the refrigerator motor cycled on. The experts further agreed the configuration of the Garcias' propane tank and supply lines on the day of the explosion violated Texas Railroad Commission regulations in several particulars. The tank was approximately four to five feet closer to the house than the regulations permitted; the exterior copper supply line was not buried, as the regulations required; and the interior supply line was an automotive rubber hose secured by a radiator clamp, not the flexible hose designed specifically for LP-gas use and required by the regulations.

The parties and their witnesses also agreed that supplying gas to a propane installation that violated the regulations constituted negligence. According to Peņa, "only 'Y' Propane" had delivered propane to his propane tanks in Starr County. Thus, the dispute at trial focused upon whether "Y" Propane had delivered gas to the Garcias' propane installation when it was configured in violation of the regulations. On this issue, the evidence conflicted sharply.

According to Francisco Garcia's widow, Maria, and his son, Ubaldo, the same 150-gallon tank that was found behind their home on the day of the explosion had been at that location since they moved into the house. Ubaldo Garcia also testified the supply lines had always been as they appeared on the day of the explosion. The Garcias also called Rodolfo Ojeda to testify. Ojeda, who worked for Peņa's wrecker service, stated that the gate at Los Morenos was kept locked; and, when no one else was available, he was called to let people in. Although he first testified he let the "Y" Propane driver in the Los Morenos gate only once, less than a year before the explosion, he later stated he let the "Y" Propane driver into Los Morenos twice. The visits were approximately one month apart. During the first visit, the driver said the larger tank at the big house was "no good" and refused to fill it. For that reason, Peņa instructed Ojeda to find another tank. Ojeda found an empty tank at another of Peņa's ranches and took it to Los Morenos. Ojeda left the tank by and intended it for use at the big house. But the tank was at the smaller house by the time the "Y" Propane driver made his second visit, a few months before the explosion. On that visit, he only partially filled the tank because, he told Ojeda, there was a small leak. Ojeda testified he signed the receipt for this delivery.

The Garcias' and Ojeda's testimony was squarely controverted by "Y" Propane's driver in Starr County, Jose Molina. According to Molina, he was called to Los Morenos on June 4, 1997 to fill a 150-gallon tank located near the big house. Ojeda opened the gate for him. Molina put seventy-five gallons in the tank by the big house. As he was leaving, a man came out of the smaller house and told Ojeda he also needed gas. The tank connected to the smaller house was a 250-gallon tank that was approximately fifteen to twenty feet away from the smaller house and licensed by La Grande. Molina found a loose knob on the tank and tightened it. He then checked the buried copper line running from the tank to the exterior wall of the house and the flexible metal hose running from the interior wall to the stove. When everything checked out, he put only twenty-five gallons in the tank because the man told him he was only going to be there a little while. The man then signed the delivery receipt. According to Molina, this was his only delivery to Los Morenos.

The record contains a receipt signed by Garcia and Molina for the delivery of 100 gallons of propane to Los Morenos on June 4, 1997. The record also contains thirteen other receipts for propane deliveries, all delivered by "Y" Propane or its predecessor to Amando Peņa and his company, Beefmasters.

None of the receipts indicate the location or locations to which the propane was delivered.

According to Molina, he returned to Los Morenos shortly after the explosion to investigate. The tank that had been connected to the Garcias' home on the day of the explosion was not the tank Molina had filled on June 4; nor was this tank configured as the tank had been on June 4. Shortly after his return visit to Los Morenos, on January 14, 1998, Molina's employment was terminated. Although he initially stated his employment was terminated because "it was slow," he later agreed that he was terminated because he was "slacking off." At the time of his deposition, Molina was imprisoned on a drug charge.

"Y" Propane's expert witnesses, Eduardo Sanchez and Sammy Russo, agreed with Molina that the 150-gallon tank connected to the small house at the time of the explosion was not the tank to which Molina delivered twenty-five gallons of propane on June 4, 1997. These witnesses based their conclusions on Molina's testimony in part. They also relied on (1) Amando Peņa's testimony that Los Morenos' previous owner had removed two tanks from Los Morenos Ranch several days before the explosion; and (2) the regulator found on the tank involved in the explosion was clean. In Sanchez's opinion, the condition of the regulator yielded only two possible explanations. Either the regulator had been protected from the elements or it was indicative of a new installation. However, Sanchez testified, the regulator could not have been protected from the elements because the configuration of the copper supply line precluded closing the cover over the regulator. Russo concurred. He also noted that it was impossible for the twenty-five gallons that Molina supplied in June 1997 to last until December 1997, given Maria Garcia's testimony that she used the stove three times a day.

The Garcias' expert witness, Michael J. Schulz, testified it was impossible to tell how many deliveries "Y" Propane made to Los Morenos or when the last delivery occurred, because the receipts did not indicate the location or locations to which propane was delivered. However, based on Ojeda's testimony, Schultz believed there were two deliveries - one on June 4 and another several months before the explosion. Based on this belief, as well as portions of other witnesses' testimony, Schultz believed Molina had delivered propane to the Garcias' tank when it was illegally configured and, as a result, "Y" Propane's negligence proximately caused Garcia's death.

The jury found "Y" Propane responsible for the explosion; and the trial court rendered judgment on the jury's verdict in favor of Peņa for $50,246.58 and in favor of the Garcias for $6,233,849.31. Y Propane appeals, challenging the legal and factual sufficiency of the evidence, several of the trial court's evidentiary rulings, and its denial of "Y" Propane's motion to equalize the peremptory challenges.

The undisputed evidence establishes that the Garcias' propane installation violated numerous regulations on the day of the explosion. Therefore, the "vital fact" to be proved was that the illegal propane installation existed at a time when "Y" Propane delivered propane to the Garcias' tank. The Garcias urge that this vital fact may be inferred from Maria and Ubaldo Garcia's testimony that the propane installation on the date of the explosion was as it had existed since they moved into the house in late 1996; Peņa's testimony that only "Y" Propane delivered propane to his propane installations; and "Y" Propane in fact delivered propane to Los Morenos on June 4, 1997. The court agreed the vital fact appears to be a reasonable inference when only the evidence supporting the verdict is considered. However, as "Y" Propane argues, you must test the reasonableness of this inference in light of the "undisputed evidence that allows of only one logical inference." Giles, 950 S.W.2d at 51 n. 1.

"Y" Propane first argues that it is physically impossible for gas supplied by "Y" Propane to have been involved in the December 7, 2001 explosion, because (1) "Y" Propane delivered propane to Los Morenos only once, on June 4, 1997; (2) at that time, "Y" Propane only delivered "some" gas, according to Ojeda, or twenty-five gallons of gas, according to Molina; (3) Maria Garcia used the propane stove to cook the family meals three times a day; (4) just one burner, used two hours a day, would consume forty gallons of propane in a six-month period; and (5) there was sufficient gas left in the tank on December 7, 2001 to not only cause the explosion but also to continue leaking the day following the explosion.

The court began with "Y" Propane's assertion that the undisputed evidence, specifically Molina's and Ojeda's testimony, establishes that "Y" Propane delivered propane to a tank at Los Morenos only one time. The court agreed both men so testified. Molina testified he made only the one delivery to Los Morenos on June 4, 1997; and Ojeda testified that, while Molina came to Los Morenos twice, it was not until the second visit that "Y" Propane put "some" propane in the Garcias' tank. However, according to Ojeda, he signed the receipt for this delivery, which occurred a few months before the explosion. And it is undisputed that Garcia signed for the propane delivered on June 4, 1997. Thus, while Molina's and Ojeda's testimony establishes that Molina delivered propane to the tank connected to the Garcia's home only once when Ojeda was there, the June 4, 1997 receipt establishes "Y" Propane may have made another delivery when Garcia, but not Ojeda, was there. Of course, this inference conflicts with Molina's testimony. But conflicts such as this are for the jury to resolve.

"Y" Propane also argues that no receipt other than the June 4 receipt indicates a delivery to Los Morenos. This is true. All of the receipts, including the June 4 receipt for gas indisputably delivered to Los Morenos, show deliveries to "Amando Peņa" and "B & M" (presumably Beefmasters). But the fact that no receipts other than the June 4 receipt shows a delivery to Los Morenos does not establish the June 4 delivery was the only delivery made to Los Morenos. Indeed, as suggested above, if Garcia signed for one delivery on June 4 and Ojeda signed for a subsequent delivery, the second delivery may have occurred on July 1, July 30, or September 5 - all dates on which Ojeda signed delivery receipts.

"Y" Propane also makes much of the fact that all of the deliveries after June 4 were for amounts in excess of the total capacity of the 150-gallon and 250-gallon tanks at Los Morenos. However, as the Garcias note, the receipts do not show delivery locations; and it is possible that some portion of the propane delivered after June 4 was delivered to Los Morenos. There is yet another flaw in "Y" Propane's theory. The jury may have concluded Molina delivered the full 100 gallons reflected in the June 4 receipt to the Garcias' tank. If this occurred, it would have provided sufficient gas to fuel one burner, used two hours a day, for the full six-month period between the delivery on June 4 and the explosion on December 7, with approximately sixty gallons to spare.

In short, the undisputed evidence does not lead necessarily to the inference that "Y" Propane made only one delivery to Los Morenos and that delivery was of an insufficient quantity to fuel the explosion. Consequently, "Y" Propane's "physical impossibility" theory is not a sufficient basis upon which to reject the seemingly reasonable contrary inference emanating from Maria and Ubaldo Garcia's testimony.

"Y" Propane next argues the undisputed evidence necessarily leads to the conclusion that the tank behind the Garcias' home was not in that location until several days before the explosion. "Y" Propane bases this argument upon the pristine condition of the regulator and the testimony of Amando Peņa that several days before the explosion the previous owner of Los Morenos Ranch removed two tanks from the property, a large tank that was connected to the larger house and another tank that was connected to the swimming pool heater. However, while the condition of the regulator suggests a recent installation, it does not lead inexorably to the conclusion that the entire configuration of the propane tank was likewise recent. The jury might reasonably have inferred that only the regulator was replaced shortly before the explosion; and this occurred some time after "Y" Propane made its last delivery to the Garcias' tank. Similarly, the possibility of a third tank at Los Morenos does not necessarily establish that it was installed after "Y" Propane's last delivery to the Garcias' tank. Indeed, Ojeda testified the tank he had brought over was installed shortly before "Y" Propane's last delivery.

The court agreed with "Y" Propane that the undisputed evidence is persuasive of its theory that the tank behind the Garcias' house on the day of the explosion was recently - and illegally - installed. However, this undisputed evidence does not necessarily establish that "Y" Propane did not deliver propane to the Garcias' tank in its illegal configuration. Thus, in light of Maria and Ubaldo Garcia's testimony, we conclude there is more than a scintilla of evidence supporting the jury's implied finding that "Y" Propane delivered propane to the Garcias' propane tank when it was illegally configured. The court did so with reluctance, however. The evidence supporting the Garcias' case is extremely weak, troubled by inconsistencies, vagueness, and confusion. In another case, these evidentiary weaknesses might lead us to conclude the evidence is factually insufficient to support the jury's verdict. But we need not do so here. An independent ground requires reversal, as discussed below.

As a general rule, each party to a civil case in district court is entitled to six peremptory strikes. Tex. R. Civ. P. 233. However, in a multiparty case, the trial court must (1) first "decide whether any of the litigants aligned on the same side of the docket are antagonistic with respect to any issued [sic] to be submitted to the jury," and (2) then, upon timely motion, "equalize the number of peremptory challenges so that no litigant or side is given unfair advantage as a result of the alignment of the litigants and the award of peremptory challenges to each litigant or side." Id. The court held that by the time "Y" Propane moved to equalize, the operative pleadings established there was no antagonism between the Garcias and Peņa as to any issue that would be submitted to the jury in the primary suit. Both the Garcias and Peņa sought to establish "Y" Propane's sole liability for the explosion; and "Y" Propane no longer sought contribution from Peņa. However, because "Y" Propane non-suited its contribution claim against Peņa without prejudice, "Y" Propane retained the right to assert the claim in an independent suit filed after its liability was established in a judgment rendered in favor of the Garcias. See Ingersoll-Rand Co. v. Valero Energy Co., 997 S.W.2d 203, 208 (Tex. 1999). (1) Therefore, the narrow issue before the court was whether the antagonism that would exist in a possible, future contribution suit is sufficient to establish antagonism in the primary suit. The court held a new trial was necessary.


In Garlinger v. Hardee's Foodsystems, Inc. (Aug. 26, 2001) (unpublished), No. 98-2044, the Fourth Court of Appeals reviewed expert testimony on burns suffered by a plaintiff. The trial court had excluded the plaintiff's expert testimony under FRE 702. The trial court had found ruling that it "is not so sufficiently tied to the facts of this case as to assist the jury, as the triers of fact, in resolving any factual issue."

The plaintiff challenged that ruling on appeal. In support of their claim that Hardee's coffee was a defective product by virtue of its temperature, the Garlingers sought to introduce the testimony of Diller, an expert in the field of thermodynamics. The admissibility of expert testimony, such as that proffered by the Garlingers here, is governed by Fed. R. Evid. 702, which provides that: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise . . . ."

Several years ago, in Daubert, the Supreme Court clarified the meaning of Rule 702, explaining that, to be admissible, expert testimony must be both relevant and reliable. See Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378, 1383 (4th Cir. 1995) (citing Daubert, 509 U.S. at 590). The test for reliability requires the district court to determine whether the expert's testimony is based on scientific knowledge, that is, whether the expert's conclusions are grounded "in the methods and procedures of science" and reflect more than his or her "subjective belief or unsupported speculation." Daubert, 509 U.S. at 590.

Although Daubert concerned only "scientific" expert testimony, the Supreme Court has since held that the rule set forth in that case "applies not only to testimony based on scientific knowledge, but also to testimony based on technical and other specialized knowledge." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (internal quotation marks omitted).

The relevance inquiry assures that the expert's proposed testimony will "assist the trier of fact to understand the evidence or to determine a fact in issue" as required by Fed. R. Evid. 702. "Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful." Daubert, 509 U.S. at 591 (citations omitted). The consideration of relevance requires the district court to determine whether the testimony "fits" the instant case; not all reliable expert testimony is relevant expert testimony.

See id. ("[S]cientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes."). In other words, Fed. R. Evid 702 requires a valid scientific connection between the expert's testimony and the pertinent inquiry before the court as a precondition to admissibility. See id. at 591-93.

With those considerations in mind, the court turned to the question of whether the district court abused its discretion in excluding Diller's testimony. The court concluded that it did not. Diller's testimony simply did not meet Daubert's requirement of relevance and for that reason, it was properly excluded.

The pertinent inquiry was whether Hardee's coffee, which is served at a temperature of approximately 180 to 190 degrees, is unreasonably dangerous for its intended use, namely human consumption. On this subject, Diller's testimony merely states that "[c]offee spilled onto bare skin at that temperature will cause a severe burn nearly instantaneously" and "coffee drunk without dilution at that temperature range will cause burns to the mouth." Diller further opined that "[f]rom the perspective of lowering the probability of causing thermal burns, 150 degrees is a much safer temperature for serving beverages." In sum, Diller's conclusion is that coffee served at 180 to 190 degrees is hot enough to cause burns and that coffee served at a lower temperature is less likely to do so, an idea that is not disputed by any party.

Although Diller's testimony may well be accurate, it failed to address the key question of whether it was unreasonable for Hardee's to serve coffee at that temperature. Importantly, although Diller is an expert on thermodynamics, he possesses no knowledge or experience in the food or beverage industry. Thus, Diller seems unsuited to the task of determining the utility of Hardee's policy of serving coffee at a temperature of 180 to 190 degrees. Perhaps for this reason, Diller failed to indicate whether it is possible for Hardee's to serve quality coffee at a lower temperature. See Holowaty v. McDonald's Corp., 10 F. Supp. 2d 1078, 1083 (D. Minn. 1998) (to rebut evidence that heat is an essential element of a quality cup of coffee, plaintiffs would need to show it was possible for defendants to sell quality coffee at a lower temperature). Indeed, Diller suggests that,"[f]rom the perspective of lowering the probability of causing thermal burns," coffee served at a temperature of 150 degrees would be safer, but he failed to explain whether such a modification is even possible, and if so, whether Hardee's was unreasonable for failing to make such a modification.

Diller's testimony on the risks associated with serving coffee at a temperature of 180 to 190 degrees, without any information on the feasibility or costs of lowering the serving temperature, did not aid the trier of fact in determining whether it was unreasonably dangerous of Hardee's to serve coffee at the higher temperature. Consequently, the district court did not abuse its discretion in excluding the testimony, and no new trial is warranted.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), (e-mail), Follow us on Twitter at @firesandrain.

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