State Farm Lloyds v. Chesley E. Blacklock and Dianne Blacklock--Appeal from 249th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

 

No. 10-04-00018-CV

State Farm Lloyds,

Appellant

v.

Chesley E. Blacklock and

Dianne Blacklock,

Appellees

 

 

From the 249th District Court

Johnson County, Texas

Trial Court No. C200200131

MEMORANDUM Opinion

Chesley E. and Dianne Blacklock filed suit against State Farm Lloyds claiming that State Farm breached its contract by not fully paying their claim for damage to their home and foundation. A jury found for the Blacklocks, and State Farm appeals. Because we find that the Blacklocks experts opinions are unreliable and therefore no evidence, we reverse and render a take-nothing judgment in favor of State Farm.

  

Background

Chesley and Dianne Blacklock owned a home in Johnson County for over 20 years. During this time they experienced no major problems with their home. However, in 2001 problems began to occur. Doors in the Blacklocks home began rubbing against the door frames and rafters in the roof started pulling away from the ridge. The Blacklocks observed cracks forming in the ceiling and walls, and cracks forming in the outside brick fa ade around the windows that continued on a downward path through the foundation. According to Chesley, these cracks first manifested in the spring of 2001 and then progressed rapidly. Suspecting that something was wrong with the foundation, the Blacklocks called Olshan, a foundation repair company.

After testing, Olshan advised the Blacklocks that they had a plumbing leak and to contact their homeowners insurance company. The Blacklocks contacted State Farm, their insurance carrier, and State Farm sent American Leak Detection Company to their property. American Leak confirmed Olshan s assessment that there was a plumbing leak. The day the leak was being repaired, Jeni McEwen, a State Farm adjuster, sent an engineer from Norseman Engineering to assess possible damage to the house s foundation. Norseman concluded that a small portion of the foundation was damaged due to the plumbing leak, causing interior damage to a bathroom and a bedroom. Norseman reported that damage to the rest of the house was outside the area of influence of the plumbing leak. This damage, Norseman concluded, was caused by changes in the moisture content of the soil due to environmental conditions and not by the plumbing leak.

Based on Norseman s conclusions, State Farm offered to pay for the interior damage in the area of influence, namely the bathroom and bedroom. The Blacklocks disagreed with Norseman s conclusions and filed suit against State Farm and its adjustor, McEwen, for breach of contract and violations of the Texas Insurance Code and the Texas Business and Commerce Code.

Before trial, State Farm filed a motion to exclude the opinions and testimony of Jeffrey Lineberger, an engineer and the Blacklocks expert witness. After a Daubert/Robinson hearing, the trial court denied State Farm s motion. State Farm renewed its objection to Lineberger at trial. When the Blacklocks introduced, through Lineberger s testimony, the report and repair plan of their expert, James Linehan, State Farm objected to the reliability of Linehan s report. State Farm also objected to the testimony of the Blacklocks damages expert, Gary Pennington, because his testimony was based entirely upon the report and repair plans of Lineberger and Linehan, both of whom State Farm believed to be unreliable. These objections were overruled.

The jury found that State Farm failed to comply with the terms of the homeowners policy and awarded the Blacklocks over $67,000 in breach of contract damages, over $30,000 in statutory damages, $100,000 additional damages for unconscionable conduct, and attorneys fees. The jury also found that the Blacklocks should take nothing against McEwen.

On appeal, State farm argues that that trial court erred by (1) admitting the testimony of the Blacklocks experts because their opinions were unreliable as a matter of law and constituted no evidence of causation or damages and (2) entering judgment of $100,000 of additional damages because the jury actually found zero damages with regards to unconscionable conduct and there was no evidence to support unconscionable conduct.

Expert Testimony

State Farm argues in their first issue that that trial court erred in admitting the testimony of the Blacklocks experts, Lineberger and Pennington, and an expert report generated by Linehan because their opinions were unreliable and constituted no evidence of causation or damages.

Standard of Review

When reviewing a no-evidence challenge, we view the evidence in a light that tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. In determining whether an expert s testimony constitutes some evidence, however, an expert s bare opinion will not suffice and [t]he substance of the testimony must be considered. Further, [t]he underlying data should be independently evaluated in determining if the opinion itself is reliable. The proponent of the evidence bears the burden of demonstrating that the expert s opinion is reliable. If the expert s testimony is not reliable, it is not evidence.

Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 253 (Tex. 2004) (citations omitted).

A two-part test governs whether expert testimony is admissible: (1) the expert must be qualified; and (2) the testimony must be relevant and based on a reliable foundation. Helena Chem. Co. v. Wilkins, 47 S.W.2d 486, 499 (Tex. 2001). A trial court is not to determine whether an expert s conclusions are correct, but only whether the analysis used to reach those conclusions is reliable. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 728 (Tex. 1998).

In determining the reliability of an expert s opinion, the Texas Supreme Court has provided a list of factors to consider: (1) the extent to which the theory has or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and publication; (4) the technique s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the nonjudicial uses that have been made of the theory or technique. E.I. du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995); In re J.B., 93 S.W.3d 609, 620 (Tex. App. Waco 2002, pet. denied).

Though helpful, the Robinson factors may not be applicable in every case. While Rule 702 governs testimony based upon scientific, technical, or other specialized knowledge, the Texas Supreme Court has acknowledged a potential difference between expert testimony based on scientific methodology and that based on experience. Tex. R. Evid. 702; Gammill, 972 S.W.2d at 726. The Court emphasized that despite the difficulty in applying the Robinson factors in these cases, the reliability of non-scientific expert testimony must still be reviewed. Gammill, 972 S.W.2d at 727. Therefore, a reviewing court may also consider other factors, including whether the analytical gap between the data and the expert s testimony is too great to be reliable. Id.

Relying upon Gammill, we first apply the Robinson factors, although only a few, or perhaps none, of the factors will be helpful in a particular case. J.B., 93 S.W.3d at 621. Then we exercise our discretion to identify and employ other factors as necessary to assess the reliability of the proffered testimony. Id. (citing Wilkins, 47 S.W.3d at 499).

  

Lineberger s Testimony

I. Qualifications

Lineberger graduated from the University of Texas in 1982 with a bachelor of engineering science degree, specializing in meteorological engineering. In 1988, he received his Professional Engineering license from the Texas Board of Professional Engineers. He is a member of the American Society of Engineers, American Concrete Institute, and the National Association of Professional Engineering.

After graduating, he worked for a public utility firm building underground structures. His next two jobs were for companies involved in the storage and transportation of liquid petroleum products and natural gas. In 1995, Lineberger formed a home building company that built low income housing. Lineberger hired an engineer to design the foundations of the approximate 125 homes built by his company. In 2000, Lineberger was hired by Systek, an engineering and construction company, and worked in a marketing position. During this time, Lineberger met Bruce Mary, an attorney who was interested in hiring Systek to conduct forensic investigations of residential foundations. After Systek closed its office in San Antonio, Lineberger formed Lineberger Consulting Engineers and began researching how to perform forensic foundation investigations. Up to that point, he had never performed a forensic investigation of a residential foundation.

Lineberger s first client was Mary who gave him ten to twenty cases. After he formed his company, Lineberger met Stephen Boyd, the Blacklocks attorney, at a legal expo where vendors market their services to the legal community. Lineberger s work includes 75% forensic work and 25% construction consulting. The majority of Lineberger s forensic foundation work is for homeowners with only one insurance company client. At the time of the trial, Lineberger had conducted 250 to 275 forensic foundation investigations.

II. Opinions as to Causation

Lineberger concluded that all the interior and exterior damage in the house was caused by the plumbing leaks. Lineberger testified that the Blacklocks home is built on expansive clay, and when large amounts of water from a plumbing leak flow into the clay, it expands in volume. The expanding clay produces tons of upward pressure on the foundation. He explained that the Blacklocks foundation did not have enough downward weight to counteract this upward pressure, and that this caused the foundation to heave upwards. Lineberger testified that the heaving upwards-movement of a foundation can separate the rafters from the ridge beam and cause cracks in the walls, which was the very damage that occurred at the Blacklocks house.

State Farm s experts agreed with Lineberger s conclusions that the plumbing leak caused the foundation to heave and this subsequently damaged the home. The experts disagreed as to the extent of the damage directly caused by the leak, i.e., what damage was caused by the heaves and what damage was caused by other means. State Farm s expert, Ricky Richards, testified that the damage caused by the plumbing leaks was confined to the areas of the house where the leaks occurred. Richards attributed any damage outside of these areas to seasonal moisture changes, specifically severe drought. Lineberger did not agree. He testified that all the damage in the house was caused by the plumbing leaks.

Lineberger testified that seasonal moisture changes could not have caused the damage to the interior of the house because seasonal moisture damage typically occurs around the perimeter of the house and cited a Building Research and Advisory Board report that stated that seasonal moisture changes would not effect the middle of the house. Lineberger pointed to several pictures of interior and exterior cracks in the Blacklocks home showing how the cracks were wider at the top than at the bottom. He stated that this was the typical anatomy of cracks formed due to upward movement, such as a heave, and not seasonal movement which tends to be in a downward direction. According to Lineberger there was no evidence of drainage problems, and the location of trees and the elevation patterns of the house were inconsistent with damage caused by tree roots. He testified that because the house was twenty-seven years old and had withstood seasonal changes up until that time, seasonal moisture changes were not the cause of the damage. Lineberger reasoned that because the problems with the house occurred suddenly and corresponded with confirmed plumbing leaks, and because the Blacklocks house was built on a lightly loaded slab-on-grade foundation with expansive soils and exhibited distortion that exceeded acceptable thresholds, then it was logical to conclude that the leaking plumbing caused all of the damage to the Blacklocks home.

However, State Farm argues that Lineberger s testimony is unreliable because he fails to show how the plumbing leaks caused damage to the house in areas distant from the leak.

Lineberger agreed with Norseman Engineering s portrayal of the elevations of the house. Lineberger s study revealed almost identical relative elevations. He agreed that generally speaking a person would tend to see higher spots in the house near the leak rather than distant from the leak. He agreed that generally a heave is greatest in the area of the leaks and lessens as one moves farther from the source of the leak. Yet, Lineberger also admitted that the highest spot in the house was in the front entryway, some distance away from the leaks, while the areas around the leaks were two inches lower than the entryway. State Farm argues that it is Lineberger s inability to explain why the high point in the house is distant from the leak that causes his opinion to be unreliable.

However, Lineberger explained that the reason the high point is some distance away from the leaks is that over time the house became tilted from east to west in a uniform planer fashion, and after the leaks occurred localized bulges appeared near the leaks.[1] He also testified that damage occurred at a distance from the leak because the beams in the concrete foundation are more stiff than the surrounding concrete. When there is upward pressure on a beam in the concrete foundation, and the beam becomes distorted, the entire beam itself rises causing damage distant from the area surrounding the leak.[2]

III. Repair Plan 100% Full Piering

Lineberger testified that in order to fix the problem with the foundation the house required full piering. He explained that piering is the placement of concrete piers underneath the foundation of the house, and it was his recommendation that the Blacklocks house be fully piered, that is, piers placed under the exterior and interior points of the entire foundation. Lineberger testified that this technique changes a slab-on-grade foundation to a fixed foundation.

In the approximate 200 cases in which Lineberger determined that a plumbing leak damaged a foundation, he recommended full piering in all of those cases. Lineberger admitted that this was the most expensive method to repair a foundation, but he insisted that full piering must be done. Lineberger explained that a house with a slab-on-grade foundation, like the Blacklocks home, floats above the soil as a single unit. Therefore, when damage to the foundation occurs, the slab must be repaired as one unit. Lineberger reasoned that if piers were placed on one side of the house only, leaving the other side supported by soil, then the foundation would float on the soil on one side and rest in a fixed state on piers on the other. Lineberger testified that this could cause stress on the foundation, causing the foundation to act as a hinge as one side of the foundation moves with the soil while the other side supported by piers withstands movement. Lineberger stated that this hinge-like movement could cause further damage.

On cross examination, Lineberger was asked to give authority for his recommendation that the Blacklocks home should be fully piered. Lineberger testified that the guidelines promulgated by the American Society of Civil Engineers support his position for full piering, but later stated that the guidelines imply full piering but never explicitly state that an engineer should fully pier a foundation. Also, Lineberger testified that he relied on an authoritative book on foundation behavior and repair called Practical Foundation Engineering Handbook by Robert Wade Brown. However, State Farm presented evidence that Brown does not agree with full piering and instead endorses piering the perimeter of the house and then pumping a slurry of concrete and mud under the interior, a process known as mudjacking. Lineberger agreed that Brown uses that method, but he disagreed with the method because it does not treat the foundation as a unit.

When asked if he knew of any authoritative text that recommends full piering as a method of foundation repair because the foundation is a single unit, Lineberger replied that he did not know of any. When asked if he could cite to any authority that was against partial piering, Lineberger testified that the number of documents he has studied when taken together with his experience and knowledge caused him to consider it good judgment to fully pier a foundation. Lineberger also referred to other working engineers, all employed by plaintiffs attorneys, who supported his theory.

Indeed, State Farm s expert testified that he was aware of engineers that were employed by insurance companies that agreed with Lineberger s full-piering philosophy. Also, Lineberger s repair plan is almost identical to the repair plans proposed by Linehan and State Farm s experts, Jason Womack and Gerald Kunkle. State Farm s experts agreed that the Blacklocks home required partial interior and exterior piering, however they testified that the need for piering was due to seasonal moisture changes causing settlement and not because of the plumbing leaks. What is more, Lineberger testified that fully piering a foundation would solve problems caused by seasonal moisture changes but would have no preventative effect should a plumbing leak reoccur.[3]

Lineberger testified that the repair plan was conceptual and would change upon further investigation. He could not state the number of piers needed because a geotechnical engineer would need to investigate the foundation to determine the location of the interior and exterior beams. However, Lineberger testified that any changes to the repair plan would not materially affect the number of piers needed or the price.

 Gammill: The Analytical Gap Test

State Farm argues that the above recited evidence proves that there exists an analytical gap between the data and Lineberger s opinions, and therefore Lineberger s opinions are unreliable. In their briefs, both parties argue that the reliability of an expert s opinion in foundation repair cases should be analyzed using the analytical gap theory.

When analyzing cases involving foundational damage that is allegedly caused by plumbing leaks, some courts have used the analytical gap theory promulgated by Gammill. 972 S.W.2d at 727; Allstate Texas Lloyds v. Mason, 123 S.W.3d 690 (Tex. App. Fort Worth 2003, no pet.); United Services Auto. Ass n v. Gordon, 103 S.W.3d 436, 439 (Tex. App. San Antonio 2002, no pet.). If too great an analytical gap exists between the data and the expert s opinion, or if the expert fails to rule out other possible causes of the foundation movement, then the trial court abuses its discretion in admitting the testimony. Gammill, 972 S.W.2d at 727; Gordon, 103 S.W.3d at 439. We are not to determine whether the expert s conclusions are correct, but only whether the analysis used to reach them was reliable. Gammill, 972 S.W.2d at 727; Gordon, 103 S.W.3d at 439.

Allstate Texas Lloyds v. Mason is a case with similar facts as the one before us. 123 S.W.3d 690. In that case, the Second Court of Appeals analyzed whether the trial court erred in admitting the testimony of Mason s expert, Jim Linehan. Id. at 697. It was Linehan s testimony that a plumbing leak caused all the damage to Mason s house, even though foundational damage due to soil movement had occurred and been repaired six years earlier. Id. at 700-01. Linehan testified that there had been no further damage to the house in the six years after the initial foundation damage had been repaired, and then damage occurred suddenly corresponding with confirmed plumbing leaks. Id. at 701. Linehan testified that the sudden onset of damage, confirmed leaks, foundational uplift at the leak, and expansive soils were all objective data that confirmed his opinion that all the damage to the house was caused by the plumbing leaks. Id. The court of appeals found that no analytical gap existed and that Linehan s testimony was reliable because he negated the possibility of other causes of damage to the house, including soil movement and seasonal moisture changes. Id. at 702.

In United Services Automobile Association v. Gordon, USAA argued to the Fourth Court of Appeals that the trial court should have excluded the Gordons expert, James Andrews. 103 S.W.3d at 438. Andrews testified that all the damage in the Gordons home was caused by plumbing leaks. Id. Andrews relied on the same testing data as USAA and ruled out seasonal changes as the cause of the damage because seasonal moisture damage effects only the perimeter of the house. Id. at 439. Andrews testified that foundational movement due to moisture changes slows or stops fifteen years after the house is built, and the Gordons significant damage occurred after the fifteen year period. Id. at 440. The court of appeals found that Andrews s testimony was reliable. Id. at 440-41.

Lineberger had similar testimony and similar explanations as the experts in the above cases that were considered reliable. Lineberger negated seasonal moisture and vegetation as the cause of the damage. He testified that the sudden onset of the damage after a period of years without any damage, confirmed plumbing leaks, expansive soils, and a lightly loaded foundation were objective data that he used to support his opinion that the leaks caused all the damage to the Blacklocks home. Though State Farm argues that Lineberger s failure to explain the cause of the high point in the entryway is proof that an analytical gap exits, the record reveals that Lineberger did explain how the high point was caused and why damage in the house occurred some distance away from the leak. Lineberger did not base his opinions on unsupported speculation or subjective belief. Both Lineberger and State Farm s experts came to different conclusions as to the cause of the damage, yet we are not to decide who s theory is more or less correct, but whether the analysis used to reach these conclusions is reliable. Mason,123 S.W.3d at 697.

Given the above testimony of Lineberger, it seems clear that under Gammill s analytical gap test, his analysis is reliable. However, the analytical gap test is not exclusive, and we may rely upon other factors to assess the reliability of expert testimony. J.B., 93 S.W.3d at 621. State Farm also argues that Lineberger s testimony is unreliable and should not have been admitted because his testimony was procured for litigation purposes only.

  

 Robinson - For Litigation Purposes Only

State Farm presented evidence that Lineberger formed his forensic foundation company upon the suggestion of Mary, a plaintiff s lawyer who represents homeowners in foundation claims.[4] Prior to forming his company in 2001, Lineberger did not have experience in forensic investigations of residential foundations. Lineberger testified that Mary gave him foundation inspection reports from other engineers as an educational tool.[5] The authority that Lineberger relies upon in giving his expert opinions, Practical Foundation Engineering Handbook by Robert Wade Brown, was given to him by Mary.[6]

State Farm also presented evidence that the Blacklocks attorneys had already determined the cause of the damage and the type of repairs needed before Lineberger was retained as an expert. Lineberger was hired by the Blacklocks on January 8, 2003. An engagement letter from the Blacklocks attorney to Lineberger entered into evidence confirms this date. Lineberger examined the Blacklocks home for the first time on January 20, 2003. However, in a supplemental response to State Farm s request for disclosure dated December 19, 2002, the Blacklocks identified Lineberger as a testifying expert and disclosed that Lineberger had already concluded that the foundation damage was caused by plumbing leaks and that the home would need to be fully piered. The Blacklocks stated in the disclosure that Mr. Lineberger is of the opinion that the elevations, damage distributions and history of the home all support the conclusions that the Plaintiffs home was damaged as the result of these plumbing leaks . . . and [i]s of the opinion that the damage to the foundation and the need to repair the foundation by way of piering was caused by the leaks known to have existed at the home. The disclosure purports to relay Lineberger s opinion on the Blacklocks home a month before Lineberger had inspected the home, and three weeks before Lineberger was hired as an expert.

When confronted with this evidence at trial, Lineberger testified that he did not make his opinion before he inspected the house, and any conclusions he made concerning the Blacklocks home were made after the January 20 inspection. He testified that prior to this inspection he had no idea whether a plumbing leak had caused the damage or whether the foundation required full piering.[7]

Furthermore, in a deposition taken before trial, Lineberger testified that if the plaintiff s lawyer requests full piering, he recommends it. Lineberger stated, Basically, what it amounts to is if they request that I recommend full piering, I recommend it if the foundation and superstructure are damaged. If they don t recommend it, then I don t.

The fact that an opinion was formed solely for the purposes of litigation does not automatically render it unreliable. Robinson, 923 S.W.2d at 559. Yet, it is a factor that weighs against the admissibility of an expert s testimony. Id. The analysis and the conclusions of Lineberger in all respects appear to be reliable under the Gammill analytical gap test. See Mason, 123 S.W.3d at 702. However, when an expert prepares reports and findings before being hired as a witness, that record will limit the degree to which he can tailor his testimony to serve a party s interests. Robinson, 923 S.W.2d at 559 (quoting Daubert, 43 F.3d at 1317 (upon remand)). Also, opinions formed solely for the purpose of testifying are more likely to be biased toward a particular result. Id.

In this case, the Blacklocks through their attorney disclosed an expert s opinions before the expert was hired as a witness. Lineberger s repair plan, while supported by more than the ipse dixit[8] of the expert, did not have the support of published authority. The very reference book touted by Lineberger as authoritative and purchased for him by Mary does not agree with Lineberger s repair plan. This fact when coupled with Lineberger s illuminating statement that his repair plan recommendations are dictated by the opinions of attorneys who hire him, reveal the true source of Lineberger s opinions. Under these circumstances, perhaps Justice Keasler is correct in his belief that courts should conduct a de novo review of the reliability of an expert s opinion.[9] See Hernandez v. State, 116 S.W.3d 26, 50 (Tex. Crim. App. 2003). Regardless, the evidence is clear that Lineberger s testimony was orchestrated for litigation purposes only, and Lineberger s opinions regarding his repair plan were not sufficiently supported by authority or accepted as valid by the relevant scientific community. Robinson, 923 S.W.2d at 556. Therefore, applying the Robinson factors, we find that Lineberger s testimony is unreliable. See J.B., 93 S.W.3d at 621.

Linehan s Report

State Farm argues that the trial court abused its discretion in admitting the repair plan and report of James Linehan because it is unreliable.

Linehan was not called to testify, but his report was admitted into evidence and was used by Lineberger in his testimony. In State Farm s Daubert/Robinson challenge to Linehan, it argued that there was an analytical gap between the hard data and Linehan s conclusion that all of the foundation damage was caused by the plumbing leaks. Linehan s report does not state how much elevation change occurred as a result of the plumbing leaks and how much foundation movement was due to settlement. Also, Linehan does not cite to any recognized authority within the engineering field to support his opinion that the foundation must be fully piered.

After State Farm objected to the Linehan report at the hearing, the burden shifted to the proponent of the evidence to prove the reliability of the expert s opinions. Gammill, 972 S.W.2d at 718-19. The Blacklocks responded to State Farm s motion by stating that Mr. Linehan, the other engineer he s complaining about, was accepted in Federal court. The court finds Linehan s testimony to be sufficiently reliable. We think that not only was Mr. Lineberger s testimony reliable, it should be admissible in this case. We ask the Court to deny the motion and proceed on. Thus, the Blacklocks response fails in its attempt to prove by a preponderance of the evidence that Linehan s report was reliable and relevant. See id. Accordingly, we find that Linehan s report is unreliable.

Pennington s Report

State Farm argues that the trial court abused its discretion in admitting the damage report of the Blacklocks expert, Gary Pennington, because his opinion is unreliable. Pennington s report states on its face that his estimates are based entirely on the Linehan report. Pennington s damage assessment consists of a numerical bid based on the cost of implementing Linehan s plan of fully piering the Blacklocks foundation. It has already been demonstrated that both Lineberger and Linehan could not cite to any authority that the method of fully piering a foundation was acceptable. Because Linehan s report should not have been admitted, Pennington s estimate that wholly relies on Linehan s report cannot serve as an admissible basis for damages. The Texas Supreme Court has held that if the foundational data underlying opinion testimony are unreliable, an expert will not be permitted to base an opinion on that data because any opinion drawn from that data is likewise unreliable. Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997); see Royce Homes, L.P. v. Neel, 10-03-00127-CV, 2005 Tex. App. LEXIS 1514 (Tex. App. Waco 2005, pet. filed); Martinez v. City of San Antonio, 40 S.W.3d 587, 594 (Tex. App. San Antonio 2001, pet denied) (holding expert s opinions lacked reliable foundation because testimony relied on another expert s underlying calculations that had been stricken from evidence).

Additionally, Linehan s report is not suitable for obtaining bids. Linehan s report states that [t]he preliminary foundation repair pier plan included herein this report is for estimating only and not valid for obtaining bids nor is it suitable for construction. On cross-examination, Pennington conceded that a new plan would have to be drawn for the actual construction of the repairs, and that until that was done the price of the piering was unknown. He even agreed to the word speculative to characterize his own estimates of cosmetic repair. He testified that the total cost of the repairs depended on the number of piers and that it was impossible to state the number of piers that would be needed. Furthermore, Pennington had not checked to see if the prices he quoted in his report were usual and customary for Johnson County, where the Blacklocks house is located.

Given the above, we find that Pennington s damage report is unreliable. See Havner, 953 S.W.2d at 714.

Conclusion

 

Because the opinions of the Blacklocks experts, namely, Lineberger, Linehan, and Pennington, are unreliable, there is no evidence to support the Blacklocks theory of causation or of the amount of damages awarded by the trial court. See Kerr-McGee Corp., 133 S.W.3d at 258. Therefore, we sustain State Farm s first issue. Because State Farm s first issue is dispositive of this case, we will not address its other issue. We reverse the decision of the trial court and render judgment that the Blacklocks take nothing.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Reversed and rendered

Opinion delivered and filed September 7, 2005

[CV06]

 

[1] Q: So I take it since [the leaks], in part, caused the high spot in your theory and, in part, caused the low spot, other forces also worked on this house to cause one area to be on this chart at three and a half inches and other areas to be as low as one-eighth inch and one-quarter inch and zero?

A: Yes, sir, that s correct.

Q: What are those other causes?

A: The foundation itself, as we discussed yesterday, is designed to float. That s how we design foundations, to float, to float on the native soils upon which they re founded. And the way that they re designed is to float in a planer fashion, in other words, flat like a table. What has happened at the Blacklock house is that the foundation has, in fact, tilted, what they call tilted. And it has tilted . . . upward on the right side of the house and downward on the left side.

* * * * * *

A: We have a uniform tilting in combination with localized heave produced by leaks. The foundation itself has titled to the right side and down to the left, and then all about, oh, 2001, early spring of 2001, we had a s situation where we had a leakage and the leakage caused, now, these nonuniform heave areas near the leaks and also somewhat distant from the leaks as well.

[2] A: [t]he heave pushes up not only on the slab, but also on the steal beams in the slab. When it pushes up on those beams, it also distorts areas away from the leaks because those beams are stiff. And when you push up on these beams, not just one single area of those beams is going to go up but the whole beam itself would tend to rise. So you re going to get distortion not only near the leak but also distant from the leak.

[3] Q: If we have a new plumbing leak on any house that has been fully piered, that house can still bulge up?

A: Oh, yes, sir. Yes, sir.

Q: And the piers really provide no protection against future plumbing leak damage?

A: They - - if you have a plumbing leak, you re going to have those soils swelling just like they did at the Blacklock house. You re going to have uplift. And since we designed these piering systems interior and exterior to restrict downward movement and not upward movement, when you have a catastrophic event like plumbing leak, you will lift the foundation off the piers.

Q: Just lift it right up off the piers because that concrete stiffens. As the soil swells, the concrete s just going to be shoved up, right?

A: Yes, sir.

Q: So you would agree with me that the full piering plan being proposed here is a plan that will solve the things State Farm says is wrong with the house, which is settlement over time in the direction of the natural slope of the lot, it will solve that, right?

A: Yeah. I mean, the full piering will restrict downward movement, simply put.

[4] Q: And it was Mr. Mary s suggestion that you go into this business of forensic foundation investigation?

A: He had asked me to look into it.

Q: And you took his suggestion?

A: Yes, sir.

[5] Q: [Mr. Mary] introduced you to the reports of some other engineers?

A: Yeah, you could say introduced. I asked him for some examples, yes, sir.

Q: And he gave you examples of other engineering reports by engineers who had helped his law firm?

A: That s correct. Also some engineers that worked for insurance companies as well.

[6] Q: And Mr. Mary not only pointed you to the Brown book, he ordered it for you, didn t he?

A: He sure did.

Q: And that s when you started looking at it and what it had to say on foundation engineering, correct?

A: Yes, sir.

[7] Q: But your conclusions were made on or after January 20 and before you made your report in February, correct?

A: Yes, sir.

Q: And there s no doubt in your mind you didn t make your opinion back here before you went to the house, did you?

A: No, sir.

Q: You had no idea whether a plumbing leak had caused the damage or not, did you?

A: No, sir.

Q: No idea whether it needed full piering or not, did you?

A: Correct.

[8] The literal meaning is he himself said it. It means something said but not proved. Dictionary of Modern Legal Usage 313 (Bryan A. Garner ed., 1st ed., Oxford 1987).

[9] [a] judge without special training finds it hard to criticize an expert s methods of gathering data or the inferences he draws from them. Yet experts are fallible. Worse, they have axes to grind--at least professional axes . . . ultimately there is no way for the conscientious judge to escape making a determined effort to learn enough about the subject matter of the litigation to formulate his own views with the assistance--not the domination--of the experts. Hernandez v. State, 116 S.W.3d 26, 50 (Tex. Crim. App. 2003) (Justice Keasler, dissenting) (quoting Kenneth L. Karst, Legislative Facts in Constitutional Litigation, 1960 Sup. Ct. Rev. 75, 105-06 (1960)).