Julio Carrillo, Indivdually and as Representative of the Estate of Guadalupe Carrillo, Deceased; Carlo Carrillo and Rosa Carrillo v. Star Tool, Company--Appeal from 151st District Court of Harris County

Affirmed and Memorandum Opinion filed November 1, 2005

Affirmed and Memorandum Opinion filed November 1, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00104-CV

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JULIO CARRILLO, INDIVIDUALLY AND AS A REPRESENTATIVE OF THE ESTATE OF GUADALUPE CARRILLO, DECEASED; CARLO CARRILLO; AND ROSA CARRILLO, Appellants

V.

STAR TOOL COMPANY, Appellee

On Appeal from the 151st Judicial District Court

Harris  County, Texas

Trial Court Cause No. 01-18858

M E M O R A N D U M O P I N I O N

This negligence case arises from an oil field accident that resulted in the death of Guadalupe Carrillo. Appellants, survivors of the decedent, sued appellee Star Tool Company alleging Star Tool negligently caused Carrillo=s death.[1] The case was tried to a jury, and the jury returned a unanimous verdict finding that neither Carrillo=s, nor Star Tool=s negligence proximately caused Carrillo=s death. In two issues, appellants argue the trial court erred in excluding evidence, and in permitting a biased veniremember to remain on the jury panel. We affirm.

I. Factual Background

On November 16, 1999, Guadalupe Carrillo was working for Sierra Well Service Inc. (ASierra@) as a floorhand at a well site. Carrillo=s crew connected pipes with a large swivel Sierra rented from Star Tool. Carrillo=s job was to guide the pipe and ensure that it stayed straight. After making a connection, another Sierra employee, maneuvered the swivel with hand controls and inadvertently moved the swivel up before the chain was unhooked causing the attached pipe to swing through the air and hit Carrillo. Carrillo died as a result of the incident and this lawsuit ensued.

The well site was operated by McDonnold Operating Inc., who hired Sierra as the pulling unit operator. McDonnold also hired Star Tool to provide rental equipment to Sierra. Sierra provided Star Tool with specifications of equipment it needed to complete the project, including a power swivel and a reverse unit operator to assist Sierra with the swivel. Star Tool rented Sierra a power swivel and a reverse unit operator.

A swivel can be cocked using either a ball, cup, or chain. Because Star Tool provided a swivel that did not have a ball or cup attached, a chain was used as a positioning device. Appellants argued Star Tool was negligent in not having a ball or cup attached to the swivel because the chain method of cocking the swivel is unreasonably dangerous. Appellants= witnesses at trial testified that, at the time of the incident, the chain method was more dangerous than its alternatives. Witnesses for Star Tool testified all three methods were equally dangerous.

II. Evidentiary Rulings

In their first issue, appellants contend the trial court erroneously excluded: (1) a letter written by an Occupational Safety and Health Administration (AOSHA@) investigator addressed to Sierra Well Service and (2) policies concerning the use of a chain to position the swivel published after the accident by the Association of Energy Service Companies (AAESC@), Sierra, and Key Energy. Appellants contend the excluded evidence is relevant, and its absence hampered their ability to effectively cross-examine appellee=s witnesses about the crucial issue of whether the use of a chain as a positioning device was unreasonably dangerous when either a ball or cup could have been used safely.

A. Standard of Review

The decision to admit or exclude evidence is committed to the discretion of the trial court and is reviewed for abuse of discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion when it acts without reference to any guiding rules and principles. Id. We must uphold the trial judge=s evidentiary ruling if there is any legitimate basis for doing so. Id. To obtain reversal of a judgment based on error in the admission or exclusion of evidence, an appellant must show the trial judge=s ruling was erroneous and the error was calculated to cause and probably did cause the rendition of an improper judgment. Tex. R. App. P. 44.1; Gee v. Liberty Mutual Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989).

Evidence must be relevant to be admissible. Tex. R. Evid. 402. Evidence is relevant if it has Aany tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.@ Tex. R. Evid. 401. All relevant evidence is admissible unless its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. See Tex. R. Evid. 402, 403.

B. Letter from OSHA

In their offer of proof, appellants offered a letter written by an OSHA investigator to Sierra. The trial court excluded the letter as being irrelevant to Star Tool=s liability.[2] Appellants argue the letter from OSHA is relevant to show Star Tool breached the standard of care owed to Carrillo. The only OSHA related document in appellants= offer of proof is a letter written to Carrillo=s employer Sierra, not Star Tool.

OSHA regulations are generally admissible as being relevant to the standards of conduct that should have been employed by a defendant. Wal-Mart Stores, Inc. v. Seale, 904 S.W.2d 718, 720 (Tex. App.CSan Antonio 1995, no writ); Kraus v. Alamo Nat=l Bank of San Antonio, 586 S.W.2d 202, 208 (Tex. App.CWaco 1979), affirmed, 616 S.W.2d 908 (Tex. 1981). OSHA standards are generally relevant as the cumulative wisdom of the industry on what is unsafe. Seale, 904 S.W.2d at 720. Additionally, expert testimony regarding OSHA standards and their application is both relevant and admissible. Lyondell Petrochemical Co. v. Fluor Daniel, Inc., 888 S.W.2d 547, 555 (Tex. App.CHouston [1st Dist.] 1994, writ denied).

In this case, the excluded letter is not an OSHA regulation or government standard. The letter declared that no citation would issue and specifically stated no OSHA regulation or standard applied to the occurrence. Instead, the letter contains only recommendations to Sierra, not Star Tool, based on the opinion of one OSHA investigator who did not testify at trial. Unlike an OSHA regulation, the excluded letter does not carry with it the indicia of reliability that is inherent in a government adopted safety standard. Cf. Costilla v. Crown Equipment Corp., 148 S.W.3d 736, 739B40 (Tex. App.CDallas 2004, no pet.) (OSHA regulation admissible in action alleging design defect).

Appellants further argue the OSHA evidence is relevant because it tends to prove employees of Sierra complained to investigators shortly after Carrillo=s death about the lack of a ball or cup. After Carrillo=s death, Star Tool hired a company to investigate the accident, and Sierra conducted an investigation of the accident with the Gaines County Sheriff=s Department. During these investigations, various Sierra employees gave written statements concerning the accident, but none of them mentioned the use of the chain method or the failure to use a ball or cup. At trial, three employees of Sierra testified they were concerned that the swivel did not have a ball or cup, but did not mention the lack of a ball or cup in their official statements after the accident.

Appellants argue this line of questioning made the OSHA letter relevant because: (1) it is derived in part from interviews of Carrillo=s co-workers; (2) it tends to show the chain method was a serious concern to Sierra=s employees; and (3) it controverts Star Tool=s assertions that no one blamed the chain method for Carrillo=s death. The trial court excluded the OSHA letter and accompanying testimony because there was no evidence that the witnesses who testified at trial also spoke with the OSHA investigator. The trial court did not abuse its discretion in denying the introduction of otherwise inadmissible evidence for the proposition that trial witnesses may have complained to an OSHA investigator.

C. Post-incident Industry Standards

Appellants next argue the trial court improperly excluded post-incident written policies of Sierra, Key Energy, and AESC requiring or recommending a chain not be used as a positioning device. The trial court permitted appellants= expert to testify as to what was known in the industry, with regard to the use of a chain, at the time of the incident and up to the time of the incident, but excluded evidence of policies that were published after the accident.

Post-event regulations are inadmissible. Turner v. General Motors Corp., 584 S.W.2d 844, 852 (Tex. 1979); Steenbergen v. Ford Motor Co., 814 S.W.2d 755, 760 (Tex. App.CDallas 1991, writ denied). Post-event policies are irrelevant to the industry standard on the date of the incident, and the record does not reveal Star Tool had notice of any written policy recommending chains not be used. A defendant will not be held to a standard written in a policy after the incident. See Turner, 584 S.W.2d at 852. Thus, the trial court did not abuse its discretion by excluding the post-incident written policies from the evidence. Appellants= first issue is overruled.

 III. Challenge for Cause

In their second issue, appellants contend the trial court erroneously allowed a biased veniremember to remain on the jury panel, forcing them to unnecessarily use a peremptory strike and accept an otherwise objectionable juror.

During voir dire, a prospective juror said she had strong feelings about plaintiffs= attorneys and it would be difficult for her to listen to the evidence in the case and follow the court=s instructions. When appellants made their strikes for cause, appellants= counsel stated, A18 is a defense attorney. She would C she did not give an answer one way or another as to whether or not she could or could not be partial C impartial.@ The trial court questioned the prospective juror as follows:

 The Court: Do you feel that you can be fair and impartial in this case? And if not, could you tell me that, as well.

 Prospective Juror: Well, just from the facts that we have discussed so far, I feel that the duty that such a company as a tool company would owe to someone who rented tools from them is pretty tangential. And I am C it would be difficult for me to listen to such evidence that a tool rental company would be responsible for someone=s injuries.

 The Court: Without getting into any of the particulars in the case, you have not heard any evidence in the case about the actual relationship or the extent of the relationship. Based on what you have heard so far, do you feel like you have already made up your mind and you can=t consider that evidence? Or can you sit in the jury and fairly evaluate the evidence if it=s presented. If you decide there isn=t some relationship, then you will make your decision one way; but if the facts come out another way, can you consider those in deciding your verdict in this case?

 Prospective Juror: I mean, I would consider the evidence as a juror, but C

 The Court: I guess the real question is: Are you giving me your opinion because I asked it based on what you have heard so far, or do you feel like you have already made up your mind on this case?

 Prospective Juror: Well, I am pretty - - to be honest, I am very much leaning in one direction. I won=t say I have made up my mind and that nothing could change it; but I am pretty well decided on what I, you know, would decide in this case.

 The Court: So then let me ask you again the ultimate question: Based on that, do you think you could be a fair and impartial juror in this case?

 Prospective Juror: It would be difficult. I think the evidence would have to be very strong.

 The Court: Let me give you a hypothetical. Okay? Hypothetically C and I am not getting into the particulars of this case.

 Prospective Juror: Okay.

 The Court: Hypothetically, if the evidence were to present that there was something more to the relationship on the particular date of the particular incident, that there was some more involvement than just the basic relationship of a rental company, if that were to be the evidence, do you feel that you could listen to that evidence and, if the evidence were to prove some sort of relationship that would rise to the level of liability against the defendant, that you could consider that?

 Prospective Juror: Yes, I do.

After questioning the veniremember, the trial court denied appellants= challenge for cause.

A person is disqualified to serve as a juror if she has a bias or prejudice in favor of or against a party in the case. Tex. Gov=t Code Ann. ' 62.105(4). Bias, such as to disqualify a juror, means it must appear that the state of mind of the juror leads to the inference that she will not act with impartiality, while prejudice means prejudgment and therefore includes bias. Compton v. Henrie, 364 S.W.2d 179, 182 (Tex. 1963). If a juror=s bias or prejudice is established as a matter of law, the trial court must disqualify the juror. Gant v. Dumas Glass and Mirror, Inc., 935 S.W.2d 202, 207 (Tex. App.CAmarillo 1996, no writ). If it is not established as a matter of law, the trial court makes a factual determination as to whether the juror should be disqualified. Malone v. Foster, 977 S.W.2d 562, 564 (Tex. 1998). The trial court=s factual determination must be reviewed in the light most favorable to the trial court=s ruling and should not be disturbed absent an abuse of discretion. Gant, 935 S.W.2d at 207; Sullemon v. U.S. Fidelity & Guar. Co., 734 S.W.2d 10, 15 (Tex. App.CDallas 1987, no writ).

Appellant argues, in reliance on Gum v. Schaefer, 683 S.W.2d 803, 808 (Tex. App.CCorpus Christi 1984, no writ), that the prospective juror=s bias against plaintiffs= attorneys could not be rehabilitated. Bias, however, is not shown by answers to general questions, which are usually insufficient to satisfy the diligence required to determine the mindset of a veniremember with respect to disqualification for bias. See Gant, 935 S.W.2d at 208. In response to more specific questions from the court, the prospective juror answered that she could fairly consider all the evidence and follow the court=s instructions. The record does not conclusively show the veniremember=s feelings were so strong in favor of a party or the subject matter of the suit that she would base her verdict on those feelings and not the evidence. The trial court was in the best position to view her demeanor, and acted within its discretion in overruling appellant=s challenge for cause. Appellants= second issue is overruled.

The judgment of the trial court is affirmed.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed November 1, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.

[1] Appellants originally brought suit against IRI International Corporation, who manufactured the swivel, McDonnold Operating Inc., Basic Energy Services, Inc., the successor to Sierra Well Service, and Star Tool. Before trial, appellants non-suited with prejudice their claims against Basic, and the trial court granted summary judgment in favor IRI and McDonnold.

[2] The record reveals an evidentiary hearing was held prior to the start of trial, but a transcription of that hearing does not appear in the record before this court. Therefore, we cannot determine if appellees objected to the letter on grounds other than relevancy.