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Hidalgo County District Clerks
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By: Irene
Irene Caceres
CAUSE NO. C-3505-14—F
MARIA GUADALUPE DURAN DE YEPEZ IN THE DISTRICT COURT
Individually and On Behalf of PEDRO
YEPEZ OLVERA, Deceased, and PEDRO
YEPEZ DURAN, Minor; GUADALUPE
YEPEZ DURAN; KARINA YEPEZ
DURAN; CLARA YEPEZ DURAN;
ENRIQUE YEPEZ OLVERA and MARIA
DE CONSUELO GONZALEZ ALCALA,
Individually and Jointly On Behalf of IVAN
YEPEZ GONZALEZ, Minor; MARTIN mmmmmmmmmmmmmmmmmmm
YEPEZ OLVERA; and NORA SILVIA
MARTINEZ DE YEPEZ,
Plaintiffs
VS. HIDALGO COUNTY, TEXAS
FILBERTO VILLARREAL and
FORD MOTOR COMPANY,
Defendants 332nd JUDICIAL DISTRICT
DEFENDANT FORD MOTOR COMPANY’S RESPONSE IN OPPOSITION
TO INTERVENORS’ AND CROSS CLAIMANT’S OBJECTIONS TO AND MOTION
TO LIMIT THE TESTIMONY 0F TROOPER ANDREW BARRY
Defendant Ford Motor Company (“Ford”) files this Response in Opposition to
Intervenors’ and Cross-Claimants’ Objections to and Motion to Limit the Testimony of Trooper
Andrew Barry (“Motion”). Ford shows the Court as follows:
I. The Villarreals’1 Challenge to Trooper Barry’s Opinions
Trooper Andrew Barry was the Certified Texas Peace Officer and Texas Department of
Public Safety Trooper who investigated the subject accident on September 29, 2013, and who
prepared both the CR—3 Accident Report and the DPS Major Crash Investigation. (Depo. 5:5-8;
11:15-17; Report; MCI).2 The Villarreals challenge any “opinions and conclusions from the
1
The movants are the Intervenor, Ismena Villarreal, who sues both individually and as representative of the estate of
her son Heriberto Villarrael; and the Cross-Claimant, F iliberto Villarreal, who is I-Ieriberto’s father and who was
also driving the vehicle at the time of the accident.
The movants are referred to collectively as the Villarreals in this
Response.
2
Trooper Barry was depend in this case on June 23, 2016. A copy of his deposition, including the TXDPS accident
report and Major Crash Investigation authored by Trooper Barry, is attached to the Villarreals’Motion. Ford
1
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Trooper that deal with reconstruction, vehicle speed, and factors contributing to the crash.”
(Motion at 3). They claim that Trooper Barry is not qualified to render opinions in these areas,
and that his opinions in these areas are unreliable speculation. (1d,). They also claim that his
opinions cannot assist the jury in this case. (Id. at 4).3
Before demonstrating the Villarreals are incorrect, it is important to clarify the exact
nature of Trooper Barry’s opinions and conclusions. He did not, as the Villarreals suggest,
“reconstruct” this accident, (Depo. 55:4-6), nor did he calculate “vehicle speed.” (Depo. 21:4-
24). What he did do was investigate this accident and complete a Major Crash Investigation
according to Texas DPS procedure, as he had been trained to do, and reached opinions
(necessary to complete his report) about the “contributing factors” to the accident, and “what
happened” in the accident. Specifically, he formed an opinion that the “contributing factors” to
the accident were driver Filiberto Villarreal’s “unsafe speed” and “faulty evasive action.”
(Report; MCI); and he formed the following opinion about what happened in the accident:
lnvestigator’s Nanettve Opinion of What Happened
IfNewsaw}
(Attach Additional Sheets
[Unit 1 was traveling eastbound on Interstate 10 in the inside
lane. The rear passengers of unit 1 stated the driver of unit 1
as approaching another vehicle too fast, and the front seat
assenger told the driver to "watch out". The driver of unit 1
took faulty evasive action to the right to avoid a collision.
The driver of unit 1 then over corrected ta the left and back to
lthe right: causing unit 1 to overturn mltiple times into a
drainage ditch located on the south side af the read. an the
Final roll unit
unit
1 skidded on its 1101:against an Wilt
causing 1 to come to rest facing northeast on its top.
incorporates those exhibits into this Response by reference.Trooper Barry’s deposition is referred to as “Depo.,”
the CR-3 report is referred to as “Report,” and the Major Crash Investigation is referred to as “MCI."
3
Although the Viliarreals do not assert a hearsay challenge to Trooper Barry’s Report or Major Crash Investigation
in their Motion, Texas courts have routinely held that such reports are admissible under the public records exception
to the hearsay rule, Tex.R.Evid. 803(8). See Ter- Vartanyan v4 R&R Freight, Inc., 1 llS.W.3d 779, 783—84 (Tex.
App.iDallas 2003, pet. denied); McRae v. Echols, 8 S.W.3d 797, 7994300 (Tex.App.—Waco 2000 pet‘denied).
2
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As discussed below, Trooper Barry is qualified to render opinions on “contributing
factors” to the accident and on “what happened;” those conclusions are reliable and based upon
sound methodology and facts; and they assist the jury. Accordingly, the Villarreals’ obj actions
to Trooper Barry should be overruled, and their motion to limit his testimony should be denied.
II. Trooper Barry is Qualified to Render Opinions on “Contributing Factors” and
“What Happened”
The Villarreals cherry-pick a few facts highlighting Trooper Barry’s relative
inexperience at the time of the accident in an attempt to demonstrate that his qualifications are
lacking—namely, that he had only been with the DPS for nine months, and on the job as a
Trooper for three months; that he was a “probationary” trooper, in field training, at the time of
the accident; and that this accident was his first fatality investigation. (Motion at 2).
The Villarreals’ qualifications challenge suffers from two fatal flaws. First, they fail to
take into account that, by the time of his deposition in June 2016, Trooper Barry had gained
significant additional training and experience. Specifically, by the time of the deposition,
Trooper Barry had completed the Texas DPS Level II accident reconstruction course (Depo.
13:15-24), and he had been working as a DPS Trooper for an additional two years and nine
months since the accident, investigating additional rollovers and fatalities (Depo. 38:22~24).
Critically, with this additional training and experience under his belt, he testified at his
deposition that he would make no changes to his original opinions and reports, other than to
change the belt status of one of the occupants. (Depo. 49:9-14).
The Weight of Texas authority holds that a Texas DPS Trooper who has completed Level
II accident reconstruction training, like Trooper Barry had done by the time of his deposition, is
qualified to render opinions regarding contributing factors to an accident and regarding what
happened. “The opinion of an investigating officer with level two reconstruction training is
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admissible.” Lingafelter v. Shupe, 2004 WL 2610515, *4 (Tex. App—Waco 2004), rev ’d on
other grounds, 192 S.W.3d 577 (Tex. 2006) (citing Sciarrilla v. Osborne, 946 S.W.Zd 919, 920-
23 (Tex. App—Beaumont 1997, pet. denied), and DeLeon v. Louder, 734 S.W.Zd 357, 359
(Tex. App—Amarillo 1988, writ denied»; see also TXI Transp. Co. v. Hughes, 224 S.W.3d 870,
888-89 (Tex. App—Fort Worth 2007), rev ’d on other grounds, 306 S.W.3d 230 (Tex. 2010)
(finding that causation and contributing factors opinions of relatively inexperienced investigating
Trooper with Level 11 training were admissible under “the bulk of the case law”).
The second fatal flaw in the Villarraél’s qualifications challenge is that they argue in a
vacuum that Trooper Barry is unqualified, without putting his qualifications in the context of the
opinions that he rendered. It is axiomatic that an expert’s expertise must be measured against the
particular opinion that the expert is offering. Trooper Barry is not offering opinions on a
complex, multi-vehicle accident here, nor is he offering scientific testimony on vehicle speed
calculations, yaw rates, or slip angles. Those opinions are being given by the engineer experts
retained by both parties. Rather, Trooper Barry has simply completed a state—issued report form
that called for him to set forth his basic opinions about “factors contributing” to cause the
accident, and about “what happened.” There is no advanced scientific training required to render
those opinions; if it were required, then it would be taught at the DPS Academy, and presumably
every Trooper employed by the State of Texas would have to receive such training.
The fact is that Trooper Barry had attended the DPS Academy for six months and had
successfully completed basic training in accident investigation, including “figuring out exactly
how the vehicle moved in a crash.” (Depo. 12:19—24). At the Academy, he learned how to
investigate crashes so that he could go out in the field and do it. (Depo. 55:12-17). At the time
of the accident, he had been out in the field doing just that for three months, under the
supervision of a Field Training Officer. (Depo. 21:18—2211), And again, when questioned
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under oath at his deposition more than two years later, he confirmed his original opinions and
conclusions.
In sum, Trooper Barry was qualified to render opinions on “factors contributing” to the
accident and on “what happened,” both when he completed his investigation, and over two years
later when he was deposed on his opinions and conclusions under oath. The Villarreals’
“qualifications” objections to Trooper Barry should be overruled and their motion to exclude him
on that basis should be denied.
III. Trooper Barry’s Opinions Regarding “Factors Contributing” to the Accident
and “What Happened” Are Based Upon Reliable Methodology and Facts
Trooper Bany’s opinions are based on an accident investigation that was detailed and
thorough. (Depo. 49:15-18). His investigation culminated not only in the completion of the
standard CR—3 accident report, but also in a Major Crash Investigation report. (Report and MCI).
Trooper Barry’s methodology employed to complete his investigation and formulate his opinions
included all of the following steps that he learned at the DPS Academy, and in his filed training:
0 Inspection of photographing the road, skid marks, and gouge marks (Depo. 20:2-
5; MCI);
0 Carefully inspecting and photographing the vehicle and tires, and documenting
their damage and condition (Depo. 20:2-5; 2825~3 1 :7; MCI);
- Considering the speed calculations conducted by his Field Training Officer
(Depo. 21218—2221);
0 Considering the measurements and scaled diagram created by an assisting
Corporal (Depo. 23:3—13; MCI);
o Inspecting the seatbelts to determine restraint use by the occupants (Depo. 24:16-
22; MCI);
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0 Excluding weather, road orientation, and road conditions as potential causes of
the accident (Depo. 27220—2824; 38:5-9: Report);
- Interviewing the surviving passengers and the driver on the day of the accident
(Depo. 46:21—47:3; 47:10—13; Report; MCI);
o Formulating opinions on “factors contributing” to the accident and on “what
happened” (Depo. 32:21—37:12; Report; MCI); and
o Documenting his investigation in both the Report and in the MCI (Report; MCI)4
This thorough accident investigation methodology has been endorsed as reliable by
numerous Texas courts. For example, in Ter-Vartanyan v‘R&R Freight, Inc., the Dallas Court
of Appeals determined that an almost identical methodology was reliable:
Ter—Vartanyan states Cerda’s opinion is based on “Virtually no data”; we cannot
agree. Our review of the record indicates Cerda went to the scene of the accident
when the vehicles were still situated on the road where the collision took place.
He looked at the scene and took account of the weather circumstances, the
location of the vehicles, the damage to the vehicles, the posted speed limit, and
“the lay of the land.” He took into account the traffic signals and the grade of the
road in the area. He observed the physical evidence on the roadway, including the
skid marks. And he interviewed appellee Coleman, the driver of the truck
involved in the accident, and a Mr. Leggett, the only other witness still at the
scene when Cerda arrived. Cerda gathered all the information later memorialized
in his report. All of the evidence indicates Cerda followed reasonable police
procedures in investigating the accident. Most importantly, we see no analytical
gap between the data he collected in his investigation and the opinions he
proffered.
111 S.W.3d 779, 782 (Tex. App—Dallas 2003, pet. denied). The court found that the things that
the investigating officer did not do in her investigation went to the weight that the jury was to
give the testimony, not to itsadmissibility. Id. at 782-83. Accord, Lingafelter v. Shupe, 2004
WL 2610515, *4 (Tex. App—Waco 2004), rev’d on other grounds, 192 S.W.3d 577 (Tex.
4
Importantly, Trooper Barry was assisted in his investigation and in the completion of his reports by his Field
Training Officer and Sergeant. (Depo 49219—5024). His Major Crash Investigation was reviewed and approved by
both his Sergeant and Lieutenant. (MCI).
6
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2006); Schultz v. Lester, 2011 WL 3211271, *3 (Tex. App—Dallas 2011, no pet).
Not only was Trooper Barry’s methodology reliable, there is also no analytical gap
between the data that he relied upon and the opinions that he rendered. I-IisOpinion that the
driver was travelling at an unsafe speed, and that the unsafe speed was a “factor contributing” to
the crash is based on direct and reliable information: the statements given to him by the
passengers and the driver on the day ofthe accident. In his report narrative, Trooper Barry states
that the “rear passengers on unit 1 stated the driver of unit 1 was approaching another vehicle too
fast, and the passenger told the driver to ‘watch out.”’ (Report). These statements by the driver
and passengers are described in detail in the Major Crash Investigation. (MCI). During his
deposition, Trooper Barry confirmed under cross—examination from the Villarreal’s own counsel
that his “unsafe speed” opinions were based on the statements from the driver and occupants.
(Depo. 57:19-25). It is difficult to imagine a more reliable and common-sense basis for Trooper
Bany’s “unsafe speed” opinions than the very statements of the driver and passengers of the
vehicle given on the day of the accident.
There is also no analytical gap between the data and Trooper Barry’s conclusion that the
driver’s “faulty evasive action” was a factor contributing to the accident. As Trooper Barry
'
explained in detail during his deposition, this conclusion was based on his careful examination of
the location and orientation of skid and gouge marks on the road surface. (Depo. 33:8—3728).
As held by the cases cited supra, drawing conclusions from skid and gouge marks is proper
methodology for an investigating DPs Trooper to use in determining factors contributing to an
accident.
The skid marks further bolster Trooper Barry’s opinion that “faulty evasive action”
contributed to cause this crash because the marks do not demonstrate the avoidance maneuver
that Trooper Barry concluded would have prevented this accidentwsimple braking. (Depo.
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59:18-23). Trooper Barry explained that the driver “was trying to correct, and that’s what made
him overcorrect again and overcorrect again” because he was trying to avoid a collision. (Depo.
60:11-17).
In sum, Trooper Barry’s opinions about “factors contributing” to the accident and about
“what happened” are based on reliable, sound, and accepted data and methodology for accident
investigation endorsed by the Texas Department of Public Safety and utilized by its Troopers
throughout the State. Trooper Barry’s opinions are not the type that exceed his training or
experience level, and are based on common-sense, observable information and data that he
gathered and considered during the course of his investigation. He did not perform a full~blown
accident reconstruction here, nor did he need to. Any supposed deficiencies in his opinions and
conclusions raised by the Villarreals go to weight and not admissibility, and the Court should
overrule their objections and deny their Motion.
IV. Trooper Barry’s Opinions and Conclusions will Assist the Jury and Excluding
Them Would Be Harmful Error
The Villarraeal’s also claim the Trooper Barry’s opinions should be excluded because
they will not assist the jury. (Motion at 4). To the contrary, Trooper Barry’s opinions about
“factors contributing” to the accident and about “what happened” will be exceedingly helpful to
the jury because Trooper Barry is the only unquestionably neutral liability witness whom the jury
will hear from. The Plaintiffs and the Villarreals will present liability testimony from the driver
and occupants of the vehicle, all of whom are suing Ford, and from their retained engineer
experts. Ford will similarly present liability testimony from Ford engineers and from retained
engineer experts. There were no eyewitnesses to the accident. Hearing the investigative
conclusions drawn by a neutral, unbiased, professional witness will be critically important to the
jury in this case. Trooper Barry’s testimony will be of tremendous benefit to the jury in
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determining all—important questions of potential proportionate fault of the driver Villarreal, and
whether he was faced with a “sudden emergency” as the Villarreals contend.
Trooper Barry’s opinions are so critical that excluding or limiting his testimony would be
harmful error. Further, the exceedingly high probative value of his opinions means that any
Texas Rule of Evidence 403 challenge made by the Villarreals on grounds of purported unfair
prejudice, or confusing or misleading the jury, should also be overruled. Trooper Barry’s
testimony is the lone unbiased, uninterested account of the accident.
WHEREFORE, Ford prays that Intervenors’ and Cross-Claimant’s Objections to and
Motion to Limit the Testimony of Trooper Andrew Barry be denied, and that his deposition
testimony, CR—3 Report, and Major Crash Investigation be admitted into evidence without
qualification or limitation. In the event that the Motion is granted, Ford submits this document
along with his deposition testimony, CR-3 Report. and Major Crash Investigation as itsRule 103
offer of proof on Trooper Barry’s excluded testimony.
Respectfully submitted,
COLVIN, SAENZ, RODRIGUEZ & KENNAMER, L.L.P.
V—
/_,
By: V Jaffn‘errAS‘Sgenz
Texas Bar No. 17514859
Email: ia.saenz@rcclaw.com
Norton A. “Trey” Colvin 111
Texas Bar No. 24045687
Email: ta.colvin@rcclaw.com
1201 East Van Buren (78520)
Brownsville, Texas 78522
(956) 542-7441
Fax (956) 541—2170
ATTORNEYS FOR DEFENDANT
FORD MOTOR COMPANY
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Irene Caceres
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served upon all counsel
of record, by electronic transmission, certified mail, return receipt requested, facsimile
transmission, and/0r hand delively pursuant to the Texas Rules of Civil Procedure on this the
251'1
day of October, 2017‘
Ricardo A. Garcia
Email: ric@gomlaw.com
Garcia, Ochoa & Mask, LLP
820 South Main
McAllen, Texas 78501
Attorneys for Plaintiffs
Ivan F. Perez
Email: ifperez@igkl.com
Jones, Galligan, Key & Lozano, LLP
Town Center Tower‘ Suite 300
P. 0. Drawer 1247
Weslaco, Texas 78599-1247
Attorneys for Plaintiffs
Steve T. Hastings
Email: Steveh@hastingslawfirm.net
Henry M. Blackmon
Email: Heggynhastingslawfirmnet
The Hastings Law Firm
P. 0. Drawer 2587
Corpus Christi, Texas 78403
Attorneys for Intervenors and Cross-Claimant
Roberto Salazar
Email: robert@robertsalazar.com
Law Office of Roberto Salazar
4601 N. McColl Rd., Ste. S
McAllen, Texas 78504-2487
Attorneys for Intervenors and Cross-Claimant
Ngrton A. “Trey’ Colvin III
10
Preview
Electronically Filed 10/25/2017 10:17 AM 10/25/201710:17 Hidalgo County District Clerks Reviewed By: By: Irene Irene Caceres CAUSE NO. C-3505-14—F MARIA GUADALUPE DURAN DE YEPEZ IN THE DISTRICT COURT Individually and On Behalf of PEDRO YEPEZ OLVERA, Deceased, and PEDRO YEPEZ DURAN, Minor; GUADALUPE YEPEZ DURAN; KARINA YEPEZ DURAN; CLARA YEPEZ DURAN; ENRIQUE YEPEZ OLVERA and MARIA DE CONSUELO GONZALEZ ALCALA, Individually and Jointly On Behalf of IVAN YEPEZ GONZALEZ, Minor; MARTIN mmmmmmmmmmmmmmmmmmm YEPEZ OLVERA; and NORA SILVIA MARTINEZ DE YEPEZ, Plaintiffs VS. HIDALGO COUNTY, TEXAS FILBERTO VILLARREAL and FORD MOTOR COMPANY, Defendants 332nd JUDICIAL DISTRICT DEFENDANT FORD MOTOR COMPANY’S RESPONSE IN OPPOSITION TO INTERVENORS’ AND CROSS CLAIMANT’S OBJECTIONS TO AND MOTION TO LIMIT THE TESTIMONY 0F TROOPER ANDREW BARRY Defendant Ford Motor Company (“Ford”) files this Response in Opposition to Intervenors’ and Cross-Claimants’ Objections to and Motion to Limit the Testimony of Trooper Andrew Barry (“Motion”). Ford shows the Court as follows: I. The Villarreals’1 Challenge to Trooper Barry’s Opinions Trooper Andrew Barry was the Certified Texas Peace Officer and Texas Department of Public Safety Trooper who investigated the subject accident on September 29, 2013, and who prepared both the CR—3 Accident Report and the DPS Major Crash Investigation. (Depo. 5:5-8; 11:15-17; Report; MCI).2 The Villarreals challenge any “opinions and conclusions from the 1 The movants are the Intervenor, Ismena Villarreal, who sues both individually and as representative of the estate of her son Heriberto Villarrael; and the Cross-Claimant, F iliberto Villarreal, who is I-Ieriberto’s father and who was also driving the vehicle at the time of the accident. The movants are referred to collectively as the Villarreals in this Response. 2 Trooper Barry was depend in this case on June 23, 2016. A copy of his deposition, including the TXDPS accident report and Major Crash Investigation authored by Trooper Barry, is attached to the Villarreals’Motion. Ford 1 Electronically Filed 10/25/2017 10:17 AM 10/25/201710:17 Hidalgo County District Clerks Reviewed By: By: Irene Irene Caceres Trooper that deal with reconstruction, vehicle speed, and factors contributing to the crash.” (Motion at 3). They claim that Trooper Barry is not qualified to render opinions in these areas, and that his opinions in these areas are unreliable speculation. (1d,). They also claim that his opinions cannot assist the jury in this case. (Id. at 4).3 Before demonstrating the Villarreals are incorrect, it is important to clarify the exact nature of Trooper Barry’s opinions and conclusions. He did not, as the Villarreals suggest, “reconstruct” this accident, (Depo. 55:4-6), nor did he calculate “vehicle speed.” (Depo. 21:4- 24). What he did do was investigate this accident and complete a Major Crash Investigation according to Texas DPS procedure, as he had been trained to do, and reached opinions (necessary to complete his report) about the “contributing factors” to the accident, and “what happened” in the accident. Specifically, he formed an opinion that the “contributing factors” to the accident were driver Filiberto Villarreal’s “unsafe speed” and “faulty evasive action.” (Report; MCI); and he formed the following opinion about what happened in the accident: lnvestigator’s Nanettve Opinion of What Happened IfNewsaw} (Attach Additional Sheets [Unit 1 was traveling eastbound on Interstate 10 in the inside lane. The rear passengers of unit 1 stated the driver of unit 1 as approaching another vehicle too fast, and the front seat assenger told the driver to "watch out". The driver of unit 1 took faulty evasive action to the right to avoid a collision. The driver of unit 1 then over corrected ta the left and back to lthe right: causing unit 1 to overturn mltiple times into a drainage ditch located on the south side af the read. an the Final roll unit unit 1 skidded on its 1101:against an Wilt causing 1 to come to rest facing northeast on its top. incorporates those exhibits into this Response by reference.Trooper Barry’s deposition is referred to as “Depo.,” the CR-3 report is referred to as “Report,” and the Major Crash Investigation is referred to as “MCI." 3 Although the Viliarreals do not assert a hearsay challenge to Trooper Barry’s Report or Major Crash Investigation in their Motion, Texas courts have routinely held that such reports are admissible under the public records exception to the hearsay rule, Tex.R.Evid. 803(8). See Ter- Vartanyan v4 R&R Freight, Inc., 1 llS.W.3d 779, 783—84 (Tex. App.iDallas 2003, pet. denied); McRae v. Echols, 8 S.W.3d 797, 7994300 (Tex.App.—Waco 2000 pet‘denied). 2 Electronically Filed 10/25/2017 10:17 AM 10/25/201710:17 Hidalgo County District Clerks Reviewed By: By: Irene Irene Caceres As discussed below, Trooper Barry is qualified to render opinions on “contributing factors” to the accident and on “what happened;” those conclusions are reliable and based upon sound methodology and facts; and they assist the jury. Accordingly, the Villarreals’ obj actions to Trooper Barry should be overruled, and their motion to limit his testimony should be denied. II. Trooper Barry is Qualified to Render Opinions on “Contributing Factors” and “What Happened” The Villarreals cherry-pick a few facts highlighting Trooper Barry’s relative inexperience at the time of the accident in an attempt to demonstrate that his qualifications are lacking—namely, that he had only been with the DPS for nine months, and on the job as a Trooper for three months; that he was a “probationary” trooper, in field training, at the time of the accident; and that this accident was his first fatality investigation. (Motion at 2). The Villarreals’ qualifications challenge suffers from two fatal flaws. First, they fail to take into account that, by the time of his deposition in June 2016, Trooper Barry had gained significant additional training and experience. Specifically, by the time of the deposition, Trooper Barry had completed the Texas DPS Level II accident reconstruction course (Depo. 13:15-24), and he had been working as a DPS Trooper for an additional two years and nine months since the accident, investigating additional rollovers and fatalities (Depo. 38:22~24). Critically, with this additional training and experience under his belt, he testified at his deposition that he would make no changes to his original opinions and reports, other than to change the belt status of one of the occupants. (Depo. 49:9-14). The Weight of Texas authority holds that a Texas DPS Trooper who has completed Level II accident reconstruction training, like Trooper Barry had done by the time of his deposition, is qualified to render opinions regarding contributing factors to an accident and regarding what happened. “The opinion of an investigating officer with level two reconstruction training is Electronically Filed 10/25/2017 10:17 AM 10/25/201710:17 Hidalgo County District Clerks Reviewed By: By: Irene Irene Caceres admissible.” Lingafelter v. Shupe, 2004 WL 2610515, *4 (Tex. App—Waco 2004), rev ’d on other grounds, 192 S.W.3d 577 (Tex. 2006) (citing Sciarrilla v. Osborne, 946 S.W.Zd 919, 920- 23 (Tex. App—Beaumont 1997, pet. denied), and DeLeon v. Louder, 734 S.W.Zd 357, 359 (Tex. App—Amarillo 1988, writ denied»; see also TXI Transp. Co. v. Hughes, 224 S.W.3d 870, 888-89 (Tex. App—Fort Worth 2007), rev ’d on other grounds, 306 S.W.3d 230 (Tex. 2010) (finding that causation and contributing factors opinions of relatively inexperienced investigating Trooper with Level 11 training were admissible under “the bulk of the case law”). The second fatal flaw in the Villarraél’s qualifications challenge is that they argue in a vacuum that Trooper Barry is unqualified, without putting his qualifications in the context of the opinions that he rendered. It is axiomatic that an expert’s expertise must be measured against the particular opinion that the expert is offering. Trooper Barry is not offering opinions on a complex, multi-vehicle accident here, nor is he offering scientific testimony on vehicle speed calculations, yaw rates, or slip angles. Those opinions are being given by the engineer experts retained by both parties. Rather, Trooper Barry has simply completed a state—issued report form that called for him to set forth his basic opinions about “factors contributing” to cause the accident, and about “what happened.” There is no advanced scientific training required to render those opinions; if it were required, then it would be taught at the DPS Academy, and presumably every Trooper employed by the State of Texas would have to receive such training. The fact is that Trooper Barry had attended the DPS Academy for six months and had successfully completed basic training in accident investigation, including “figuring out exactly how the vehicle moved in a crash.” (Depo. 12:19—24). At the Academy, he learned how to investigate crashes so that he could go out in the field and do it. (Depo. 55:12-17). At the time of the accident, he had been out in the field doing just that for three months, under the supervision of a Field Training Officer. (Depo. 21:18—2211), And again, when questioned Electronically Filed 10/25/2017 10:17 AM 10/25/201710:17 Hidalgo County District Clerks Reviewed By: By: Irene Irene Caceres under oath at his deposition more than two years later, he confirmed his original opinions and conclusions. In sum, Trooper Barry was qualified to render opinions on “factors contributing” to the accident and on “what happened,” both when he completed his investigation, and over two years later when he was deposed on his opinions and conclusions under oath. The Villarreals’ “qualifications” objections to Trooper Barry should be overruled and their motion to exclude him on that basis should be denied. III. Trooper Barry’s Opinions Regarding “Factors Contributing” to the Accident and “What Happened” Are Based Upon Reliable Methodology and Facts Trooper Bany’s opinions are based on an accident investigation that was detailed and thorough. (Depo. 49:15-18). His investigation culminated not only in the completion of the standard CR—3 accident report, but also in a Major Crash Investigation report. (Report and MCI). Trooper Barry’s methodology employed to complete his investigation and formulate his opinions included all of the following steps that he learned at the DPS Academy, and in his filed training: 0 Inspection of photographing the road, skid marks, and gouge marks (Depo. 20:2- 5; MCI); 0 Carefully inspecting and photographing the vehicle and tires, and documenting their damage and condition (Depo. 20:2-5; 2825~3 1 :7; MCI); - Considering the speed calculations conducted by his Field Training Officer (Depo. 21218—2221); 0 Considering the measurements and scaled diagram created by an assisting Corporal (Depo. 23:3—13; MCI); o Inspecting the seatbelts to determine restraint use by the occupants (Depo. 24:16- 22; MCI); Electronically Filed 10/25/2017 10:17 AM 10/25/201710:17 Hidalgo County District Clerks Reviewed By: By: Irene Irene Caceres 0 Excluding weather, road orientation, and road conditions as potential causes of the accident (Depo. 27220—2824; 38:5-9: Report); - Interviewing the surviving passengers and the driver on the day of the accident (Depo. 46:21—47:3; 47:10—13; Report; MCI); o Formulating opinions on “factors contributing” to the accident and on “what happened” (Depo. 32:21—37:12; Report; MCI); and o Documenting his investigation in both the Report and in the MCI (Report; MCI)4 This thorough accident investigation methodology has been endorsed as reliable by numerous Texas courts. For example, in Ter-Vartanyan v‘R&R Freight, Inc., the Dallas Court of Appeals determined that an almost identical methodology was reliable: Ter—Vartanyan states Cerda’s opinion is based on “Virtually no data”; we cannot agree. Our review of the record indicates Cerda went to the scene of the accident when the vehicles were still situated on the road where the collision took place. He looked at the scene and took account of the weather circumstances, the location of the vehicles, the damage to the vehicles, the posted speed limit, and “the lay of the land.” He took into account the traffic signals and the grade of the road in the area. He observed the physical evidence on the roadway, including the skid marks. And he interviewed appellee Coleman, the driver of the truck involved in the accident, and a Mr. Leggett, the only other witness still at the scene when Cerda arrived. Cerda gathered all the information later memorialized in his report. All of the evidence indicates Cerda followed reasonable police procedures in investigating the accident. Most importantly, we see no analytical gap between the data he collected in his investigation and the opinions he proffered. 111 S.W.3d 779, 782 (Tex. App—Dallas 2003, pet. denied). The court found that the things that the investigating officer did not do in her investigation went to the weight that the jury was to give the testimony, not to itsadmissibility. Id. at 782-83. Accord, Lingafelter v. Shupe, 2004 WL 2610515, *4 (Tex. App—Waco 2004), rev’d on other grounds, 192 S.W.3d 577 (Tex. 4 Importantly, Trooper Barry was assisted in his investigation and in the completion of his reports by his Field Training Officer and Sergeant. (Depo 49219—5024). His Major Crash Investigation was reviewed and approved by both his Sergeant and Lieutenant. (MCI). 6 Electronically Filed 10/25/2017 10:17 AM 10/25/201710:17 Hidalgo County District Clerks Reviewed By: By: Irene Irene Caceres 2006); Schultz v. Lester, 2011 WL 3211271, *3 (Tex. App—Dallas 2011, no pet). Not only was Trooper Barry’s methodology reliable, there is also no analytical gap between the data that he relied upon and the opinions that he rendered. I-IisOpinion that the driver was travelling at an unsafe speed, and that the unsafe speed was a “factor contributing” to the crash is based on direct and reliable information: the statements given to him by the passengers and the driver on the day ofthe accident. In his report narrative, Trooper Barry states that the “rear passengers on unit 1 stated the driver of unit 1 was approaching another vehicle too fast, and the passenger told the driver to ‘watch out.”’ (Report). These statements by the driver and passengers are described in detail in the Major Crash Investigation. (MCI). During his deposition, Trooper Barry confirmed under cross—examination from the Villarreal’s own counsel that his “unsafe speed” opinions were based on the statements from the driver and occupants. (Depo. 57:19-25). It is difficult to imagine a more reliable and common-sense basis for Trooper Bany’s “unsafe speed” opinions than the very statements of the driver and passengers of the vehicle given on the day of the accident. There is also no analytical gap between the data and Trooper Barry’s conclusion that the driver’s “faulty evasive action” was a factor contributing to the accident. As Trooper Barry ' explained in detail during his deposition, this conclusion was based on his careful examination of the location and orientation of skid and gouge marks on the road surface. (Depo. 33:8—3728). As held by the cases cited supra, drawing conclusions from skid and gouge marks is proper methodology for an investigating DPs Trooper to use in determining factors contributing to an accident. The skid marks further bolster Trooper Barry’s opinion that “faulty evasive action” contributed to cause this crash because the marks do not demonstrate the avoidance maneuver that Trooper Barry concluded would have prevented this accidentwsimple braking. (Depo. Electronically Filed 10/25/2017 10:17 AM 10/25/201710:17 Hidalgo County District Clerks Reviewed By: By: Irene Irene Caceres 59:18-23). Trooper Barry explained that the driver “was trying to correct, and that’s what made him overcorrect again and overcorrect again” because he was trying to avoid a collision. (Depo. 60:11-17). In sum, Trooper Barry’s opinions about “factors contributing” to the accident and about “what happened” are based on reliable, sound, and accepted data and methodology for accident investigation endorsed by the Texas Department of Public Safety and utilized by its Troopers throughout the State. Trooper Barry’s opinions are not the type that exceed his training or experience level, and are based on common-sense, observable information and data that he gathered and considered during the course of his investigation. He did not perform a full~blown accident reconstruction here, nor did he need to. Any supposed deficiencies in his opinions and conclusions raised by the Villarreals go to weight and not admissibility, and the Court should overrule their objections and deny their Motion. IV. Trooper Barry’s Opinions and Conclusions will Assist the Jury and Excluding Them Would Be Harmful Error The Villarraeal’s also claim the Trooper Barry’s opinions should be excluded because they will not assist the jury. (Motion at 4). To the contrary, Trooper Barry’s opinions about “factors contributing” to the accident and about “what happened” will be exceedingly helpful to the jury because Trooper Barry is the only unquestionably neutral liability witness whom the jury will hear from. The Plaintiffs and the Villarreals will present liability testimony from the driver and occupants of the vehicle, all of whom are suing Ford, and from their retained engineer experts. Ford will similarly present liability testimony from Ford engineers and from retained engineer experts. There were no eyewitnesses to the accident. Hearing the investigative conclusions drawn by a neutral, unbiased, professional witness will be critically important to the jury in this case. Trooper Barry’s testimony will be of tremendous benefit to the jury in Electronically Filed 10/25/2017 10:17 AM 10/25/201710:17 Hidalgo County District Clerks Reviewed By: By: Irene Irene Caceres determining all—important questions of potential proportionate fault of the driver Villarreal, and whether he was faced with a “sudden emergency” as the Villarreals contend. Trooper Barry’s opinions are so critical that excluding or limiting his testimony would be harmful error. Further, the exceedingly high probative value of his opinions means that any Texas Rule of Evidence 403 challenge made by the Villarreals on grounds of purported unfair prejudice, or confusing or misleading the jury, should also be overruled. Trooper Barry’s testimony is the lone unbiased, uninterested account of the accident. WHEREFORE, Ford prays that Intervenors’ and Cross-Claimant’s Objections to and Motion to Limit the Testimony of Trooper Andrew Barry be denied, and that his deposition testimony, CR—3 Report, and Major Crash Investigation be admitted into evidence without qualification or limitation. In the event that the Motion is granted, Ford submits this document along with his deposition testimony, CR-3 Report. and Major Crash Investigation as itsRule 103 offer of proof on Trooper Barry’s excluded testimony. Respectfully submitted, COLVIN, SAENZ, RODRIGUEZ & KENNAMER, L.L.P. V— /_, By: V Jaffn‘errAS‘Sgenz Texas Bar No. 17514859 Email: ia.saenz@rcclaw.com Norton A. “Trey” Colvin 111 Texas Bar No. 24045687 Email: ta.colvin@rcclaw.com 1201 East Van Buren (78520) Brownsville, Texas 78522 (956) 542-7441 Fax (956) 541—2170 ATTORNEYS FOR DEFENDANT FORD MOTOR COMPANY Electronically Filed 10/25/2017 10:17 AM 10/25/201710:17 Hidalgo County District Clerks Reviewed By: By: Irene Irene Caceres CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served upon all counsel of record, by electronic transmission, certified mail, return receipt requested, facsimile transmission, and/0r hand delively pursuant to the Texas Rules of Civil Procedure on this the 251'1 day of October, 2017‘ Ricardo A. Garcia Email: ric@gomlaw.com Garcia, Ochoa & Mask, LLP 820 South Main McAllen, Texas 78501 Attorneys for Plaintiffs Ivan F. Perez Email: ifperez@igkl.com Jones, Galligan, Key & Lozano, LLP Town Center Tower‘ Suite 300 P. 0. Drawer 1247 Weslaco, Texas 78599-1247 Attorneys for Plaintiffs Steve T. Hastings Email: Steveh@hastingslawfirm.net Henry M. Blackmon Email: Heggynhastingslawfirmnet The Hastings Law Firm P. 0. Drawer 2587 Corpus Christi, Texas 78403 Attorneys for Intervenors and Cross-Claimant Roberto Salazar Email: robert@robertsalazar.com Law Office of Roberto Salazar 4601 N. McColl Rd., Ste. S McAllen, Texas 78504-2487 Attorneys for Intervenors and Cross-Claimant Ngrton A. “Trey’ Colvin III 10