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FILED
12/29/2022 6:46 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
CAROLYN SELLERS DEPUTY
CAUSE NO. DC-20-10495
HERIBERTO FAZ, § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
v. § DALLAS COUNTY, TEXAS
§
SOUTHWESTERN BELL TELEPHONE §
COMPANY d/b/a AT&T TEXAS and §
DIAMOND H SERVICES, INC., §
§
Defendants. § 116TH JUDICIAL DISTRICT
PLAINTIFF’S RESPONSE TO DEFENDANT DIAMOND H SERVICES, INC.’S
MOTION TO EXCLUDE EXPERT TESTIMONY OF WILLIAM WHITWORTH
The Court should deny Defendant Diamond H Services, Inc.’s (“Diamond”) Motion to
Exclude Expert Testimony of William Whitworth because:
1. Mr. William Whitworth was Indianapolis Power & Light Co.’s Chief Engineer
when he retired in 2018, after working as an electrical engineer for 40 years.
Without any doubt, Mr. Whitworth is a highly qualified electrical engineer
expert. His experience, training and education unquestionably qualifies Mr.
Whitworth as an expert in this straightforward personal injury case caused by a
low-hanging utility cable over a public road. Defendant Diamond does not—
they cannot—contest Mr. Whitworth’s qualifications as an electrical engineer
expert.
2. Mr. Whitworth’s report provided his bases, analysis, and opinions with respect
to the underlying incident. He reviewed the records of this case and performed
analysis based those facts. His opinions regarding the low-hanging utility cable
and leaning pole are based on the facts of the case, viewed through the lens of
his training and experience as an electrical engineer with over 40-year
experience. His opinions will assist the trier of fact to understand a sequence of
events and points of failure in Defendants’ setup of the utility cable passing
through a public road. Therefore, Mr. Whitworth’s opinions are reliable,
relevant, and helpful to the trier of fact, and thus are admissible.
3. Defendant Diamond’s objections to Mr. Whitworth’s opinions—in its
essence—go to the factual basis, rather than the admissibility, of Mr.
Whitworth’s opinions. Indeed, Defendant Diamond essentially argues that
because Mr. Whitworth did not speculate other causes of failure when there is
absolutely no evidence in the record to support any of them (e.g. squirrels
chewed off a wire; a lightning stricken; some unidentified truck damaged the
anchor; trees somewhere fell on a cable etc.), Mr. Whitworth’s opinions—which
are based on evidence in the record—somehow become unreliable. This type
of circular reasoning has been rejected by Texas courts and is not what the
Robinson Court applied. The Court should permit the jury to assess the
credibility of the underlying facts and leave the weight of the expert’s opinion
to be decided by the jury. Defendant Diamond’s qualms with Mr. Whitworth’s
opinions are better addressed on cross-examination, where they can be properly
weighed by the jury.
I.
Exhibit List
Exhibit 1: Police Report
Exhibit 2: Plaintiff’s Expert Designation
Exhibit 3: Mr. William Whitworth’s CV
Exhibit 4: Mr. William Whitworth’s Report dated April 11, 2022
Exhibit 5: Deposition Transcript of Mr. William Whitworth
II.
BACKGROUND
1. The incident
On January 23, 2020 shortly after midnight, Plaintiff, Heriberto Faz, was driving an
18-wheel tractor-trailer traveling eastbound on Erwin Street in Tyler, Texas. Mr. Faz was on
his way to make a delivery. It was dark and slightly raining. Suddenly, his truck was
“clotheslined” by a low-hanging utility cable across Erwin Street, and the cable struck the
windshield of Mr. Faz’s truck, causing the trailer to jack-knifed. The impact caused serious
damages to Mr. Faz’s truck and violently tossed him inside the cab, resulting serious injuries
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to his neck and back. The following post-incident photo of the truck sheds some light on the
severity of the impact.
Police investigative report also concluded that the utility cable (phone line) was
hanging too low over the road.
3
Ex. 1: Police Report, at p. 3.
The utility cable was installed, owned, and maintained by Defendant AT&T Texas.
Defendant Diamond installed the utility cable and the hanging system for Defendant AT&T
Texas in October 2019, just 3 months prior to the incident gave rise to this lawsuit.
2. Plaintiff retained Mr. William Whitworth to opine on liability issues
Plaintiff timely designated Mr. Whitworth as his industrial expert to assist in the jury’s
assessment of sufficiency of the design and construction of the utility cable and poles in
question, in consideration of the evidence, testimony, and arguments the jury will hear at trial.
Ex. 2: Plaintiff’s Expert Designation. Mr. Whitworth’s extensive CV speaks to his
qualifications to testify as an electrical engineer. Ex. 3: Whitworth’s CV. He received his
bachelor’s degree in electrical engineer in 1977 and has been working in the field since his
graduation—for over 40 years. See id. Mr. Whitworth started as an engineer and worked his
way to become the Chief Engineer for Indianapolis Power & Light Co., a utility company
providing electric service to more than 500,000 customers. Defendant Diamond does not—
4
they cannot—challenge Mr. Whitworth’s impressive qualifications as an electrical engineer
with extensive experience in the exact field in this case. See generally, Defendant’s Motion.
Plaintiff timely produced his expert disclosure and provided Mr. Whitworth’s report.
Ex. 4: Whitworth Report. Mr. Whitworth reviewed the specific evidence in the record and
opines 6 specific points based on the evidence. See id. In his report, Mr. Whitworth explained
that:
Id. at p. 2.
Id. at p. 3.
Id. at p. 3.
Id. at p. 3.
5
Id. at p. 4.
Id. at p. 5.
For each opinion, Mr. Whitworth listed specific evidence from the record and/or
corresponding national industrial standards on which he based the opinions. See id. at pp. 1-
5. In short, Mr. Whitworth’s opinions, as detailed in his report, are based on the specific facts
of this case, filtered through his experience, training, and education in electrical engineering.
Id.
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3. Defendant Diamond’s Motion to Exclude Mr. Whitworth
Defendant Diamond does not challenge Mr. Whitworth’s qualifications as an electrical
engineer. See generally, Defendant’s Motion. Instead, Diamond contends that “Mr.
Whitworth’s opinions regarding the cause of the accident are solely unreliable speculation.”
Id. at p. 1. However, Diamond’s challenges to Mr. Whitworth’s opinions are unfounded and
erroneous. Indeed, Diamond’s arguments in essence are that: because Mr. Whitworth did not
speculate on unfounded causes (imagining squirrels chewing off lashing wire), Mr.
Whitworth’s opinions are unreliable. Diamond’s logic chain is flawed—if Diamond’s logic is
followed, no expert would ever be allowed to testify as to causation because a myriad of other
unsupported causes must be excluded even when there is absolutely no evidence to suggest
any of them. If there is anything at all, Diamond’s challenges come down to factual disputes
or interpretations. See generally, id.
Diamond’s challenges to Mr. Whitworth’s opinions are based on erroneous
interpretation of the law and misrepresentation of Mr. Whitworth’s opinions. Further,
Diamond’s challenges go straight to the issue of evidence weight, which is reserved for the
jury. Diamond’s motion should be denied.
III.
LEGAL STANDARDS
An expert’s testimony is admissible if the expert is qualified, his opinion is relevant to
the issues in the case, and his opinion(s) is based upon a reliable foundation. TEX. R. EVID.
702; Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 720 (Tex. 1998). The Rules
of Evidence employ a liberal view of opinion testimony, and generally trust the trier of fact to
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evaluate and weigh the factual bases and methodological reliability of an expert’s testimony.
Daubert v. Merrill Dow Pharm., Inc., 509 U.S. 579, 587-88 (1993) (“[A] rigid ‘general
acceptance’ requirement would be at odds with the ‘liberal thrust’ of the Federal Rules and
their ‘general approach of relaxing the traditional barriers to “opinion” testimony. . . .’”). 1
Thus, most individual attacks on an expert’s opinions go to the weight, rather than the
admissibility, of the testimony, 2 and exclusion of expert testimony should be the exception,
rather than the rule. See FED. R. EVID. 702 (Advisory Committee’s Note, 2000 Amendments).
A. Qualification Standard
A witness can be qualified as an expert by virtue of knowledge, skill, experience,
training, or education. TEX. R. EVID. 702. The witness qualifies as an expert if his knowledge
1
See also Bruton v. State, 428 S.W.3d 865 (Tex. Crim. App. 2014) (“[W]hen a state rule of evidence is
patterned on a federal counterpart, it is appropriate to look to federal cases and commentary for guidance.”).
2
First Tennessee Bank Nat. Ass'n v. Barreto, 268 F.3d 319, 333 (6th Cir. 2001) (“[T]o the extent that [the
expert] may have lacked familiarity with some aspects of banking relationships, . . . such unfamiliarity
merely affected the weight and credibility of his testimony, not its admissibility.”); TXI Transp. Co. v.
Hughes, 224 S.W.3d 870, 887 (Tex. App.—Fort Worth 2007), rev'd on other grounds, 306 S.W.3d 230
(Tex. 2010); Keo v. Vu, 76 S.W.3d 725, 734 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (noting
that “factual weaknesses underlying an expert’s causation opinion generally go to the testimony's weight,
rather than its admissibility”); Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 605 n.25 (Tex.
App.—Houston [1st Dist.] 2002, pet. denied) (“The alternative causes suggested by a defendant ‘affect the
weight that the jury should give the expert’s testimony and not the admissibility of that testimony.’”);
Williams v. State, No. 05-91-01434-CR, 1993 WL 378211 at *4 (Tex. App.—Dallas Sept. 22, 1993, no
writ) (not designated for publication) (“Any lack of credibility of the expert's testimony [matching
fingerprints to fingerprint samples in defendant’s pen packet] due to the lack of clarity of the fingerprints
in the penitentiary packet went to the weight of the evidence, not its admissibility.”); Tenngasco Gas
Gathering Co. v. Bates, 645 S.W.2d 496, 498 (Tex. App.—Corpus Christi 1982, writ ref'd n.r.e.)
(“Weaknesses of the facts, however, in support of an expert's opinion go to the weight of his testimony not
its admissibility.”); Jahn v. Equine Servs., Inc., 233 F.3d 382, 393 n.8 (6th Cir. 2000) (lack of supporting
studies, textual support, or questions as to experts credentials go to weight rather than admissibility); Clay
v. Ford Motor Co., 215 F.3d 663, 668 (6th Cir. 2000) (an expert witness’s failure to test alternative theories
of defect went to weight, not admissibility); United States v. 14.38 Acres of Land More or Less Situated in
Leflore County, Miss., 80 F.3d 1074, 1077 (5th Cir. 1996) (noting that “questions relating to the bases and
sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility”);
Jordan v. State, 928 S.W.2d 550, 556 (Tex. Crim. App. 1996) (“That some facts were not taken into account
by the expert is a matter of weight and credibility, not admissibility.”).
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of the subject matter on which he is to testify is such that his opinion will likely assist the trier
of fact in arriving at the truth. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 500 (Tex. 2001);
Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996) (“The rule requires that experts be
qualified ‘by knowledge, skill, experience, training, or education,’ and that their testimony
‘assist the trier of fact.’”). Thus, a witness qualifies as an expert if he is more knowledgeable
than an ordinary person or the trier of fact with respect to the issue on which he is testifying.
Broders, 924 S.W.2d at 153; ITT Commercial Fin. Corp. v. Riehn, 796 S.W.2d 248, 250 (Tex.
App.—Dallas 1990, no writ).
In deciding whether a witness is qualified as an expert, the court’s only concern should
be whether the witness crosses this minimum threshold. “As long as some reasonable
indication of qualifications is adduced, the court may admit the evidence without abdicating
its gate-keeping function. After that, qualifications become an issue for the trier of fact rather
than for the court in its gate-keeping capacity.” Rushing v. Kan. City S. Ry., 185 F.3d 496, 507
(5th Cir. 1999); Lincoln Prop. Co. v. DeShazo, 4 S.W.3d 55, 59-60 (Tex. App.—Fort Worth
1999, pet. denied); see also Daubert, 509 U.S. 579, 596 (1993) (“Vigorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but admissible evidence.”).
B. Relevance
The requirement that expert testimony be relevant incorporates the traditional relevancy
analysis under Rules 401 and 402 of the Rules of Evidence. E.I. du Pont de Nemours & Co.,
Inc. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). “Evidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would be without the evidence; and (b)
the fact is of consequence in determining the action.” TEX. R. EVID. 401. Accordingly, “[t]o
9
be relevant, the proposed testimony must be ‘sufficiently tied to the facts of the case that it will
aid the jury in resolving a factual dispute.’” Robinson, 923 S.W.2d at 556.
C. Reliability
Under the Rules of Evidence, the trial court has broad discretion in determining whether
an expert’s opinion is reliable. See Gammill, 972 S.W.2d at 726. “Reliable expert testimony
must be based on a probability standard, rather than on mere possibility.” Gharda USA, Inc.
v. Control Sols., Inc., 464 S.W.3d 338, 349 (Tex. 2015). The court must make certain that
there is not a great “analytical gap” between the data and the opinion offered. Id. at 727. An
expert’s opinion based on the expert's personal knowledge and experience can be a potent and
even conclusive indicator of reliability. Kumho Tire, 526 U.S. at 150 (“In other cases, the
relevant reliability concerns may focus upon personal knowledge or experience.”); See also
Gammill, 972 S.W.2d at 722.
An expert’s opinion must be founded on sufficient facts and data. Merrell Dow
Pharms., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997). However, “[a]s a general rule, the
factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility,
and it is up to the opposing party to examine the factual basis for the opinion in cross-
examination. Only if the expert's opinion is so fundamentally unsupported that it can offer no
assistance to the jury must such testimony be excluded.” Bonner v. ISP Techs., Inc., 259 F.3d
924, 929-30 (8th Cir. 2001); see also Jordan, 928 S.W.2d at 556 (Tex. Crim. App. 1996) (“The
question under Rule 702 is not whether there are some facts in the case that the expert failed
to take into account, but whether the expert’s testimony took into account enough of the
pertinent facts to be of assistance to the trier of fact on a fact in issue. That some facts were
not taken into account by the expert is a matter of weight and credibility, not admissibility.”);
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Keo, 76 S.W.3d 725 at 734 (“[F]actual weaknesses underlying an expert’s causation opinion
generally go to the testimony’s weight, rather than its admissibility, and the opinion is no
evidence only if based completely upon speculation and surmise.”).
Because the weight of an expert’s testimony is frequently dependent upon disputed
underlying facts, the court should permit the jury to assess the witness’s credibility when the
underlying facts are in dispute. Pipitone v. Biomatrix, Inc., 288 F.3d 239, 249 (5th Cir. 2002);
Keo, 76 S.W.3d at 734-35 (expert’s opinion not excludable when reliability depends upon
jury's determination of existence of underlying fact). An expert may assume that the jury will
resolve disputed facts consistently with a party’s theory of the case, so long as the facts from
which the inference may reasonably be drawn are ultimately placed into evidence. Sw. Energy
Prod. Co. v. Berry--Helfand, 491 S.W.3d 699, 718 (Tex. 2016) (“Further, an expert opinion
may be based on assumed facts supported by the record regardless of whether the factual
assumptions are contested.”). And similarly, it is acceptable for one expert to rely on the
opinions of another expert. Stam v. Mack, 984 S.W.2d 747, 749-50 (Tex. App.—Texarkana
1999, no pet.) (expert pediatrician could base opinion on radiologist's opinion that CT scan
showed no abnormality).
Finally, while the trial court must act as gatekeeper to ensure that unhelpful opinions
are not admitted, the trial court's “gatekeeping” function does not supplant cross-examination
as the appropriate means of attacking shaky but admissible evidence. Gammill, 972 S.W.2d
at 728. In other words, “in determining the admissibility of expert testimony, the district court
should approach its task with proper deference to the jury’s role as the arbiter of disputes
between conflicting opinions. As a general rule, questions relating to the bases and sources of
an expert's opinion affect the weight to be assigned that opinion rather than its admissibility
11
and should be left for the jury's consideration.” 14.38 Acres of Land More or Less Situated in
Leflore County, Miss., 80 F.3d 1074, 1077 (5th Cir. 1996).
IV.
THE COURT SHOULD DENY DIAMOND’S MOTION
A. Mr. Whitworth is highly qualified to render his opinions based upon his education,
background, training, and experience.
Mr. Whitworth worked as an electrical engineer for 40 years, until his retirement in
2018 after serving as the Chief Engineer for Indianapolis Power & Light Co. since 2013 and
the Principal Engineer from 2001 to 2013. See Ex. 3: Whitworth CV. Here, Defendant
Diamond does not explicitly challenge Mr. Whitworth’s qualifications as an experienced
electrical engineer. See generally, Defendant’s Motion. As Mr. Whitworth explained in his
deposition, he worked in the electrical engineering field designing structures for poles, wires,
guys, and anchors for both electric utilities and telecommunication companies.
Q. What training or education do you have specifically related
to aerial cable systems?
...
A. 40 years of working with electric utilities and
telecommunication contacts on joint use poles, and that includes
design, approving other people's work orders, writing standards
that are used by the electric utility and the telecommunication
cable companies that contact electric poles. Also writing what's
called joint use agreements that are agreements put into place
allowing telecommunication companies to contact electric poles.
Q. (BY MR. JONES) Other than your 40 years' work
experience, do you have any specific education related to design
or function of aerial cable systems?
A. Several courses that I've taken, professional design courses.
They don't lead to certifications and/or degrees, but, yes, there are
courses that I've taken that I could provide you information on, if
required to show what courses were taken and, you know, what
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they pertained to. But it's basically the physical structural designs
for poles, wires, guys, and anchors, including both electric
utilities and telecommunication companies.
Ex. 5: Whitworth Dep., at 72:16 to 73:14.
Mr. Whitworth’s experience is not limited to electric utilities, he also has extensive
experience with telecommunication cables, which is the type of cable that caused the injury
incident in this case.
Q. Okay. That was a bad question, Mr. Whitworth, so I
apologize. I'm just trying to understand Public Service Indiana
Company. Do they do power lines and telecommunication lines?
A. They're electric -- they were an electric utility company, so
their main function was building electric lines. But on the pole
owned by Public Service Indiana there were multiple
telecommunication companies, and we had to ensure that their
facilities plus our facilities all met the requirements of the
National Electrical Safety Code for spacing, for structural
loading, pole loading, guying, anchoring.
PSI - abbreviation for Public Service Indiana - PSI did not
install telecommunication lines that are used by the general
public. We did install what's called supervisory cable, which is
telecommunication lines used by the electric utility to
communicate between the electric utility substation.
So, yes, we did install telecommunication cables, strands,
cables, lashings, that to a normal person would look like a
telephone line, but it was not used for telephone lines.
Q. And so just from a high level perspective, did your work
at Publish Service Indiana Company, did that include design
and engineering related to telecommunication lines?
A. Yes.
Ex. 5: Whitworth Dep., at 74:11 to 75:12.
Even Defendant Diamond could not and does not challenge Mr. Whitworth’s
qualifications as an expert. In short, there is no question that Mr. Whitworth is highly qualified
to testify on the cause of the underlying incident. Mr. Whitworth surely possesses the
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“knowledge, skill, experience, training, or education” to “help the trier of fact to understand
the evidence or to determine a fact in issue.” See TEX. R. EVID. 702.
B. Mr. Whitworth has sufficient factual bases for his opinions and has reliably
applied his well-reasoned methodology to the facts of this case.
As explained in his report, Mr. Whitworth reviewed discovery materials, including area
photos of the utility cable, poles, before and after the incident, AT&T’s contract, work order,
and other records produced in this case. Ex. 4: Whitworth Report, at pp. 1-2. Based on the
specific facts of this case, Mr. Whitworth was able to opine, among other things, that “The
AT&T cable crossing Irwin Street at the incident location did not meet the NESC vertical
clearance requirements just prior to the incident and was lower than the height of a standard
semi-tractor trailer;” “At the time of the incident, the cable crossing Irwin St. was low, but
more likely than not, still connected to the AT&T pole on the NE corner of the intersection
(pole) by means of a suspended supporting guy (or messenger) wire;” “Prior to the incident
the pole at the NE corner of the intersection (pole) leaned to the south, allowing the cable
crossing Irwin St. to become abnormally low, and low enough to make contact with the semi;”
and “Prior to the incident, the anchor on the north side of the pole either pulled out of the
ground (at least partially) or the downguy attachment from the pole to the anchor became loose,
allowing the pole to lean to the south, and hence reduced the tension in the cable crossing Irwin
St, which caused the cable to sag and become abnormally low above the street.” Ex. 4:
Whitworth Report at pp. 1-5. For each opinion, Mr. Whitworth specifically listed the evidence
that his opinions are based on. For example, for opinion 4, Mr. Whitworth listed scene photos
post-incident but before Defendants’ final repair on the pole and cable, and AT&T’s work
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order description as the basis for this particular point of opinion. See Ex. 4: Whitworth Report
at pp. 3-4.
Id.
Therefore, Mr. Whitworth’s opinions are based on proper evidence in the record and
are reliable and admissible.
Diamond attacks Mr. Whitworth’s opinions on the basis that without certain
calculations, he cannot say whether the anchor supporting the pole pulled partially out of the
ground or the downguy attachment from the pole to the anchor became loose. See Defendant’s
Motion, at pp 3-5. However, Diamond’s Motion ignores that the downguy, its attachments,
and anchor are a connected system. Mr. Whitworth’s opinion is that this system failed, not that
either particular component failed. Further, Mr. Whitworth did not need calculations to see
this system failure—he could tell based on the photographs and reference statements he cited
as the basis for his opinion. See Ex 4: Whitworth Report at pp. 3-4. Therefore, Mr. Whitworth
had a sufficient factual basis for his opinions, and his opinions are reliable. The lack of
15
calculations goes to the weight and credibility of Mr. Whitworth’s opinions, not the
admissibility. See Keo, 76 S.W.3d at 734. The Court should deny Diamond’s Motion.
C. Mr. Whitworth’s opinions are based on the evidence, not on mere speculation as
to alternative causes for the low cable.
Diamond’s attacks on Mr. Whitworth’s opinions are entirely based on factual disputes.
“The court's ultimate task, however, is not to determine whether the expert's conclusions are
correct, but rather whether the analysis the expert used to reach those conclusions is reliable
and therefore admissible.” TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 239 (Tex. 2010).
Diamond, as the Defendant who installed the pole and cable, attempts to deflect its failures by
pointing fingers to a myriad of other causes that have no supporting evidence whatsoever—
other than speculation. Mr. Whitworth explained in his deposition that there is no evidence
suggesting any of Diamond’s speculations (damaged by a car; a fallen tree, wind, animals,
electrical surges (in telecommunication cable), other persons (vehicles), foam, other
contractors, vandalism etc.).
Q. You heard -- you and Mr. Jones talked for a while about
other possible factors for this pole leaning. Do you remember all
of that?
A. I think so.
Q. Have you seen any evidence that this pole was damaged by
a car?
A. I've not seen any evidence to that, no.
Q. Did Mr. Jones show you any evidence today that this pole
was damaged by a car?
A. No.
Q. Have you seen any evidence that a fallen tree was the cause
of this pole leaning?
A. No.
16
Q. Were you shown any evidence today that a fallen tree caused
this pole to lean?
A. No.
Q. Have you seen any evidence that wind caused this pole to
lean?
A. No.
Q. Were you shown any evidence today that wind caused this
pole to lean?
A. No.
Q. Have you seen any evidence that animals were responsible
for damage to the pole or its equipment?
A. No, I have not.
Q. Were you shown any evidence today that animals were the
cause for damage to the pole or equipment?
A. No.
Q. Have you seen any evidence that an electrical surge caused
the damage to the pole?
A. No, I have not.
Q. Were you shown any evidence today that an electrical surge
caused the damage to this pole?
A. No.
Q. Have you seen any evidence of a person striking the lashing
wire besides Mr. Faz?
A. No.
Q. Were you shown any evidence today of a person besides
Mr. Faz striking the lashing wire?
A. No.
...
Q. Have you seen any evidence of problems with the foam in
this case?
A. No.
Q. Were you shown any evidence today of problems with the
foam around the pole?
A. No.
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Q. Have you seen any evidence of other contractors working
on that pole?
A. No.
Q. Were you shown any evidence today that there were other
contractors that worked on that pole?
A. No.
Q. Have you seen any evidence of vandalism to this pole?
A. No, I have not.
Q. Were you shown any evidence today of vandalism to that
pole?
A. No.
Ex. 5: Whitworth Dep., at 114:24 to 117:17.
In fact, Mr. Whitworth specifically explained in his deposition that there are three
possibilities in causing the pole leaning south resulting the low-hanging cable and he ruled out
the other two possibilities.
Q. But what we see here is as far as the pole leaning to the
south, there's three possibilities: the guy wire grips failing, the
anchor pulling partially out of the ground, or the anchor rod itself
failing, correct?
A. Right.
Q. And as far as those three possibilities, those are all
possibilities as to what may have caused the pole to be leaning to
the south, correct?
A. Yes.
Q. You haven't been able to rule out any of those three
possibilities, true?
A. The anchor plate itself failing, becoming separated from
the anchor rod, is ruled out from the photographic evidence
of the anchor that was removed. There's a photograph after the
accident showing the condition of the anchor.
Q. And I guess that'd be a separate question as far as the
component parts of the anchor failing. Is that something you've
been able to rule out?
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A. The plate part itself, again from photographic evidence,
doesn't appear to be failed. The anchor rod itself did not
break. It did not fail. The photographs show the eye - some
people refer to it as the head of the anchor where the guy wire
attaches - that did not fail, again from photographic review.
The rod is bent, but it did not fail.
Q. All right. As far as the anchor plates where it actually
expands out, do you know whether that portion of the anchor
actually failed prior to the accident?
A. From the photographs, my opinion is it did not fail as
steel failure. It appears just to have pulled through the soil.
Ex. 5: Whitworth Dep., at 105:19 to 107:2.
In addition to ruling out Diamond’s speculations, Mr. Whitworth also explained the
deficiencies of Diamond’s work.
Q. Mr. Whitworth, just real quickly. Do you have any evidence
that any of Diamond H's work at this intersection was improper
or defective?
A. The evidence I've seen indicates the anchor pulled up. If
the anchor system, including the anchor and the downguy, had
been sufficient to hold the load on the pole, the anchor would not
have pulled up. Typically, you ensure that your anchor holding
power is not the weak point but the strand itself would actually
break first, so if something hits it, it breaks the strand and the
cable comes down. It doesn't make the pole lean causing other
issues.
So specifically, no calculated values, but I would not have
expected the anchor to pull out. And the repair work that was
done also leads me to think that it was inadequate, because prior
to the accident, there was one anchor and one downguy with a
fairly short guy lead.
After the repairs, they installed two anchors with a downguy
on each at a much further distance from the pole, which would all
equate to having a stronger anchor and downguy system on that
pole.
Ex. 5: Whitworth Dep., at 117:24 to 118:19.
“Reliable expert testimony must be based on a probability standard, rather than on mere
possibility.” Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 349 (Tex. 2015). An
19
expert’s opinion must be founded on sufficient facts and data. Merrell Dow Pharms., Inc. v.
Havner, 953 S.W.2d 706, 714 (Tex. 1997). But Diamond is arguing the opposite: Diamond
wants experts to opine based on speculation and possibility.
Q. (BY MR. JONES) Do you agree that lightning can be a
cause of lashing wire breaking?
...
A. Yes, I would agree with that.
Q. (BY MR. JONES) Do you agree that wind can be a cause
of lashing wire breaking?
...
A. In general, wind would not cause a lashing wire to break;
but if you had an extreme wind event, such as a hurricane,
tornado, something of that nature, yes, I would agree that that
could cause it to break.
Q. (BY MR. JONES) Do you agree that an electrical surge can
cause a lashing wire to break?
...
A. Electrical surge that is sending electricity through the lashing
wire could potentially melt the lashing wire, but lashing wires are
not meant to carry any electrical current.
Q. (BY MR. JONES) Do you agree that a vehicle hitting a cable
or cable and strand can cause the lashing wire to break?
A. Yes.
...
Q. (BY MR. JONES) Do you agree that vandalism can cause
a lashing wire to break?
...
A. It can, yes.
Q. (BY MR. JONES) Do you agree that trees falling can cause
a lashing wire to break?
...
A. It can, yes.
Q. (BY MR. JONES) Mr. Whitworth, do you agree that animals
can cause lashing wire to break?
20
A. Certain animals, yeah.
...
Q. (BY MR. JONES) And one of those animals could include
squirrels, right?
...
A. Possibly.
Q. (BY MR. JONES) Is that something you've experienced in
the past as an occasion where squirrels biting through lashing
wire have caused a lashing wire to break?
A. I've never seen that, no.
Ex. 5: Whitworth Dep., at 94:19 to 96:15.
There is not a shred of evidence that any of these imaginary lightening, squirrels, wind
or trees etc. at all caused the underlying incident. An expert’s opinions based on evidence and
refusing to speculate based on conjured animals are reliable, not the opposite.
Because Mr. Whitworth’s observations and opinions are based on his expertise and the
specific facts of this case, his opinions are proper and reliable, and thus admissible.
Consequently, the Court should deny Defendant’s motion.
D. Defendant’s arguments go to the weight, not the admissibility, of Mr. Whitworth’s
opinions.
Diamond’s attacks on Mr. Whitworth’s opinions are entirely based on factual
disputes—beside their erroneous interpretation of the law and mischaracterization of Mr.
Whitworth’s opinions. “The court’s ultimate task, however, is not to determine whether the
expert's conclusions are correct, but rather whether the analysis the expert used to reach those
conclusions is reliable and therefore admissible.” TXI Transp. Co. v. Hughes, 306 S.W.3d
230, 239 (Tex. 2010). Because Mr. Whitworth’s opinions are tied to the specific facts in the
case which likewise provided support for his conclusions and opinions, Mr. Whitworth’s
expert testimony meets our standard for reliability. See id. at 240 (holding that “[h]is
21
observations, measurements, and calculations were, as in Ledesma, tied to the physical
evidence in the case which likewise provided support for his conclusions and theory, [the
plaintiff’s] expert testimony thus meets our standard for reliability”).
Of course, to the extent that Defendant disagrees with Mr. Whitworth, it will have the
full opportunity to “vigorously” cross-examine Mr. Whitworth at trial. See Primrose
Operating Co. v. National American Ins. Co., 382 F.3d 546, 562 (5th Cir. 2004); See also
Hartley v. Dillard’s Inc., 310 F.3d 1054, 1061 (8th Cir. 2002) (“As a general rule, the factual
basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it
is up to the opposing party to examine the factual basis for the opinion in cross-examination.”).
At most, Defendant’s criticisms, valid or not, go to the “weight and credibility, not
admissibility” of Mr. Whitworth’s testimony. Keo, 76 S.W.3d at 734 (“[F]actual weaknesses
underlying an expert’s causation opinion generally go to the testimony’s weight, rather than
its admissibility, and the opinion is no evidence only if based completely upon speculation and
surmise.”).
V.
CONCLUSION
For the foregoing reasons, the Court should deny Defendant Diamond H Services,
Inc.’s Motion to Exclude Mr. William Whitworth.
Respectfully submitted,
ARNOLD & ITKIN LLP
/s/ Alec Paradowski
Kurt Arnold
SBN: 24036150
karnold@arnolditkin.com
Caj D. Boatright
22
SBN: 24036237
cboatright@arnolditkin.com
Roland Christensen
SBN: 24101222
rchristensen@arnolditkin.com
Alec Paradowski
SBN: 24124773
aparadowski@arnolditkin.com
6009 Memorial Drive
Houston, TX 77007
Tel: 713.222.3800
Fax: 713.222.3850
e-service@arnolditkin.com
ATTORNEYS FOR PLAINTIFFS
23
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been forwarded to all
counsel of record on this 29th day of December 2022.
/s/ Alec Paradowski
Alec Paradowski
24
EXHIBIT 1
EXHIBIT 2
CAUSE NO. DC-20-10495
Heriberto Faz § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. §
§ DALLAS COUNTY, TEXAS
Southwestern Bell Telephone Company §
d/b/a AT&T Texas and §
Diamond H Services, Inc. §
§
Defendants. § 116TH JUDICIAL DISTRICT
PLAINTIFF’S DESIGNATION OF EXPERTS
Plaintiff Heriberto Faz Reyes serves this Designation of Expert Witnesses in
accordance with the Scheduling order as notice that he intends to call the following witnesses
at the time of trial to provide expert testimony in this case:
1. Srinivason R. Parthasarathy, M.D.
Physician Life Care Planning
2829 Babcock Road, Suite 600
San Antonio, Texas 78229
(210) 692-2000
Dr. Parthasarathy will testify regarding his evaluation of the medical condition of
Plaintiff as a result of the injuries he received in the incident made the basis of this suit
and his projected medical cost analysis for Plaintiff’s future medical needs and costs.
Dr. Parthasarathy will also testify as to Plaintiff’s physical condition based upon his
own physical evaluation and the medical records in the case. Dr. Parthasarathy will also
offer opinions as the reasonableness and necessity of medical treatment Plaintiff has
received from the incident in question as well as the reasonableness and necessity of
medical treatment Plaintiff will require in the future. Dr. Parthasarathy will also offer
opinions as the reasonableness and necessity of medical bills, and the usual and
customary charges for said services, and the medical necessity of same to treat
Plaintiff’s conditions and injuries caused by the incident. Dr. Parthasarathy’s opinions
with respect to future medical care will extend to the cost of: (1) physician care; (2)
diagnostic studies; (3) medication; (4) labs; (5) rehabilitation services and supplies; (6)
environmental modifications and essential services; (7) nursing and attendant care; and
(8) surgical care needs. Dr. Parthasarathy will also provide causation testimony as to
Plaintiff’s injuries that resulted from this incident predicated upon the facts, his
education, experience, training and background. Dr. Parthasarathy has and/or will
review all medical and billing records in this case. His expert opinions are based on his
1
knowledge, education, experience, and the literature in his field of expertise and
documents reviewed. He may express additional opinions in deposition or at trial.
Plaintiffs will supplement this designation with any further substantive opinions by Dr.
Parthasarathy when they become available. Dr. Parthasarathy’s report and current
resume are attached as Exhibit A.
2. Harold A. Asher, CPA, ABV, CFF, CVA, CFE, FCPA
Jeffrey E. Meyers, CVA, MAFF, CFE
Asher & Myers, LLC
433 Metairie Road, Suite 215
Metairie, Louisiana 70005
504/566-7577
Mr. Asher and Mr. Meyers will testify regarding Plaintiff, Dallas Theriot’s loss of
earning capacity. They will use the “below market discount” methodology. Mr. Asher
and Mr. Meyers will consider: (1) Plaintiff’s earnings at the time of injury; (2)
Plaintiff’s age; (3) Plaintiff’s work-life expectancy according to Department of Labor
statistics; (4) future real compensation growth; (5) benefits; (6) work expenses; (7)
taxes and Social Security; (8) discount rates; (9) post injury earning capacity as dictated
by Plaintiff’s treating physicians; and (10) potential loss of household services. On
balance, Mr. Asher and Mr. Meyers will provide the jury with a means of calculating
loss of earning capacity given the foregoing calculation. While Mr. Asher and Mr.
Meyers may use demonstrative calculations, the ultimate figure for loss of earning
capacity will be left for jury determination. Mr. Asher and Mr. Meyers current resumes
are attached as Exhibit B.
3. William Whitworth
2734 N. 700 E.
Franklin, Indiana 46131
317/918-4319
Mr. Whitworth is expected to testify regarding the sufficiency of the design and
construction and of the lines and poles in question and their related appurtenances. It is
expected that Mr. Whitworth will provide testimony concerning the adequacy of the
supporting guides and anchors and the related NESC requirements, the industry
standard methods for supporting wires, cables, and installation of down guides and
anchors, and the probable root cause of the low hanging wire that caused this incident.
Mr. Whitworth is expected to testify regarding the conduct that led to this incident and
all aspects of liability (including causation) regarding the incident in question. Mr.
Whitworth is expected to testify that Defendants failed to take adequate steps and
precautions to maintain, inspect, and/or install the line(s) and related pole(s) in
question.
2
Mr. Whitworth is expected to testify that these actions/inactions on the part of
Defendants were a direct cause of Plaintiff’s injuries. Mr. Whitworth is further expected
to address all other aspects of liability and will address corresponding opinions of
experts hired by Defendants in this case to the extent they are within his expertise. He
may express additional opinions in deposition or at trial based on additional information
that becomes available in discovery. Mr. Whitworth’s current resume are attached as
Exhibit C.
4. William L. Davenport
Physician Life Care Planning
11550 W. IH-10 #375
San Antonio, Texas 78230
(210) 501-0996
Mr. William L. Davenport is a certified healthcare financial professional. Mr.
Davenport will assist the jury by providing present value calculations relating to the
costs associated with Plaintiff’s future medical care. Mr. Davenport will provide the
detail the nominal value of the services set forth in Mr. Faz Reyes’s life care plan
prepared by, will calculate the future value of such medical care, and will then calculate
the present value of such medical care. As with all life care plans, Mr. Faz Reyes’s life
care plan will not account for the time value of money nor the impact of inflation on
medically related goods and services. Mr. Davenport’s calculations will take those
factors into account to reach a present value calculation of Mr. Faz Reyes’s future care.
Mr. Davenport has provided a present value assessment for Dr. Parthasarathy’s life care
plan in this case, which has already been provided to Respondent. Mr. Davenport will
also provide a similar present value assessment for Dr. Parthasarathy’s life care plan,
following the exact same methodology. Mr. Davenport’s report and current resume are
attached as Exhibit D.
The following physicians and medical facilities have knowledge of Plaintiff’s injuries
and medical treatment and may be called up to give expert testimony. They have provided care
and treatment to Plaintiff. As such, they possess expertise and knowledge in their respective
area. Specifically, they may testify about care, treatment, diagnosis, prognosis, causation,
physical restrictions, reasonable costs for medical care in the past and future, and the need, if
any, for future treatment. Their mental impressions and opinions may be found in Plaintiff’s
medical and billing records and their deposition testimony, if any. The custodians of records
for these medical providers will provide testimony necessary to prove up the medical and
billing records.
Eagle Pass Chiropractic
1995 Main Street, Suite B
Eagle Pass, TX 78852
Preview
FILED 12/29/2022 6:46 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS CAROLYN SELLERS DEPUTY CAUSE NO. DC-20-10495 HERIBERTO FAZ, § IN THE DISTRICT COURT OF § Plaintiff, § § v. § DALLAS COUNTY, TEXAS § SOUTHWESTERN BELL TELEPHONE § COMPANY d/b/a AT&T TEXAS and § DIAMOND H SERVICES, INC., § § Defendants. § 116TH JUDICIAL DISTRICT PLAINTIFF’S RESPONSE TO DEFENDANT DIAMOND H SERVICES, INC.’S MOTION TO EXCLUDE EXPERT TESTIMONY OF WILLIAM WHITWORTH The Court should deny Defendant Diamond H Services, Inc.’s (“Diamond”) Motion to Exclude Expert Testimony of William Whitworth because: 1. Mr. William Whitworth was Indianapolis Power & Light Co.’s Chief Engineer when he retired in 2018, after working as an electrical engineer for 40 years. Without any doubt, Mr. Whitworth is a highly qualified electrical engineer expert. His experience, training and education unquestionably qualifies Mr. Whitworth as an expert in this straightforward personal injury case caused by a low-hanging utility cable over a public road. Defendant Diamond does not— they cannot—contest Mr. Whitworth’s qualifications as an electrical engineer expert. 2. Mr. Whitworth’s report provided his bases, analysis, and opinions with respect to the underlying incident. He reviewed the records of this case and performed analysis based those facts. His opinions regarding the low-hanging utility cable and leaning pole are based on the facts of the case, viewed through the lens of his training and experience as an electrical engineer with over 40-year experience. His opinions will assist the trier of fact to understand a sequence of events and points of failure in Defendants’ setup of the utility cable passing through a public road. Therefore, Mr. Whitworth’s opinions are reliable, relevant, and helpful to the trier of fact, and thus are admissible. 3. Defendant Diamond’s objections to Mr. Whitworth’s opinions—in its essence—go to the factual basis, rather than the admissibility, of Mr. Whitworth’s opinions. Indeed, Defendant Diamond essentially argues that because Mr. Whitworth did not speculate other causes of failure when there is absolutely no evidence in the record to support any of them (e.g. squirrels chewed off a wire; a lightning stricken; some unidentified truck damaged the anchor; trees somewhere fell on a cable etc.), Mr. Whitworth’s opinions—which are based on evidence in the record—somehow become unreliable. This type of circular reasoning has been rejected by Texas courts and is not what the Robinson Court applied. The Court should permit the jury to assess the credibility of the underlying facts and leave the weight of the expert’s opinion to be decided by the jury. Defendant Diamond’s qualms with Mr. Whitworth’s opinions are better addressed on cross-examination, where they can be properly weighed by the jury. I. Exhibit List Exhibit 1: Police Report Exhibit 2: Plaintiff’s Expert Designation Exhibit 3: Mr. William Whitworth’s CV Exhibit 4: Mr. William Whitworth’s Report dated April 11, 2022 Exhibit 5: Deposition Transcript of Mr. William Whitworth II. BACKGROUND 1. The incident On January 23, 2020 shortly after midnight, Plaintiff, Heriberto Faz, was driving an 18-wheel tractor-trailer traveling eastbound on Erwin Street in Tyler, Texas. Mr. Faz was on his way to make a delivery. It was dark and slightly raining. Suddenly, his truck was “clotheslined” by a low-hanging utility cable across Erwin Street, and the cable struck the windshield of Mr. Faz’s truck, causing the trailer to jack-knifed. The impact caused serious damages to Mr. Faz’s truck and violently tossed him inside the cab, resulting serious injuries 2 to his neck and back. The following post-incident photo of the truck sheds some light on the severity of the impact. Police investigative report also concluded that the utility cable (phone line) was hanging too low over the road. 3 Ex. 1: Police Report, at p. 3. The utility cable was installed, owned, and maintained by Defendant AT&T Texas. Defendant Diamond installed the utility cable and the hanging system for Defendant AT&T Texas in October 2019, just 3 months prior to the incident gave rise to this lawsuit. 2. Plaintiff retained Mr. William Whitworth to opine on liability issues Plaintiff timely designated Mr. Whitworth as his industrial expert to assist in the jury’s assessment of sufficiency of the design and construction of the utility cable and poles in question, in consideration of the evidence, testimony, and arguments the jury will hear at trial. Ex. 2: Plaintiff’s Expert Designation. Mr. Whitworth’s extensive CV speaks to his qualifications to testify as an electrical engineer. Ex. 3: Whitworth’s CV. He received his bachelor’s degree in electrical engineer in 1977 and has been working in the field since his graduation—for over 40 years. See id. Mr. Whitworth started as an engineer and worked his way to become the Chief Engineer for Indianapolis Power & Light Co., a utility company providing electric service to more than 500,000 customers. Defendant Diamond does not— 4 they cannot—challenge Mr. Whitworth’s impressive qualifications as an electrical engineer with extensive experience in the exact field in this case. See generally, Defendant’s Motion. Plaintiff timely produced his expert disclosure and provided Mr. Whitworth’s report. Ex. 4: Whitworth Report. Mr. Whitworth reviewed the specific evidence in the record and opines 6 specific points based on the evidence. See id. In his report, Mr. Whitworth explained that: Id. at p. 2. Id. at p. 3. Id. at p. 3. Id. at p. 3. 5 Id. at p. 4. Id. at p. 5. For each opinion, Mr. Whitworth listed specific evidence from the record and/or corresponding national industrial standards on which he based the opinions. See id. at pp. 1- 5. In short, Mr. Whitworth’s opinions, as detailed in his report, are based on the specific facts of this case, filtered through his experience, training, and education in electrical engineering. Id. 6 3. Defendant Diamond’s Motion to Exclude Mr. Whitworth Defendant Diamond does not challenge Mr. Whitworth’s qualifications as an electrical engineer. See generally, Defendant’s Motion. Instead, Diamond contends that “Mr. Whitworth’s opinions regarding the cause of the accident are solely unreliable speculation.” Id. at p. 1. However, Diamond’s challenges to Mr. Whitworth’s opinions are unfounded and erroneous. Indeed, Diamond’s arguments in essence are that: because Mr. Whitworth did not speculate on unfounded causes (imagining squirrels chewing off lashing wire), Mr. Whitworth’s opinions are unreliable. Diamond’s logic chain is flawed—if Diamond’s logic is followed, no expert would ever be allowed to testify as to causation because a myriad of other unsupported causes must be excluded even when there is absolutely no evidence to suggest any of them. If there is anything at all, Diamond’s challenges come down to factual disputes or interpretations. See generally, id. Diamond’s challenges to Mr. Whitworth’s opinions are based on erroneous interpretation of the law and misrepresentation of Mr. Whitworth’s opinions. Further, Diamond’s challenges go straight to the issue of evidence weight, which is reserved for the jury. Diamond’s motion should be denied. III. LEGAL STANDARDS An expert’s testimony is admissible if the expert is qualified, his opinion is relevant to the issues in the case, and his opinion(s) is based upon a reliable foundation. TEX. R. EVID. 702; Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 720 (Tex. 1998). The Rules of Evidence employ a liberal view of opinion testimony, and generally trust the trier of fact to 7 evaluate and weigh the factual bases and methodological reliability of an expert’s testimony. Daubert v. Merrill Dow Pharm., Inc., 509 U.S. 579, 587-88 (1993) (“[A] rigid ‘general acceptance’ requirement would be at odds with the ‘liberal thrust’ of the Federal Rules and their ‘general approach of relaxing the traditional barriers to “opinion” testimony. . . .’”). 1 Thus, most individual attacks on an expert’s opinions go to the weight, rather than the admissibility, of the testimony, 2 and exclusion of expert testimony should be the exception, rather than the rule. See FED. R. EVID. 702 (Advisory Committee’s Note, 2000 Amendments). A. Qualification Standard A witness can be qualified as an expert by virtue of knowledge, skill, experience, training, or education. TEX. R. EVID. 702. The witness qualifies as an expert if his knowledge 1 See also Bruton v. State, 428 S.W.3d 865 (Tex. Crim. App. 2014) (“[W]hen a state rule of evidence is patterned on a federal counterpart, it is appropriate to look to federal cases and commentary for guidance.”). 2 First Tennessee Bank Nat. Ass'n v. Barreto, 268 F.3d 319, 333 (6th Cir. 2001) (“[T]o the extent that [the expert] may have lacked familiarity with some aspects of banking relationships, . . . such unfamiliarity merely affected the weight and credibility of his testimony, not its admissibility.”); TXI Transp. Co. v. Hughes, 224 S.W.3d 870, 887 (Tex. App.—Fort Worth 2007), rev'd on other grounds, 306 S.W.3d 230 (Tex. 2010); Keo v. Vu, 76 S.W.3d 725, 734 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (noting that “factual weaknesses underlying an expert’s causation opinion generally go to the testimony's weight, rather than its admissibility”); Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 605 n.25 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (“The alternative causes suggested by a defendant ‘affect the weight that the jury should give the expert’s testimony and not the admissibility of that testimony.’”); Williams v. State, No. 05-91-01434-CR, 1993 WL 378211 at *4 (Tex. App.—Dallas Sept. 22, 1993, no writ) (not designated for publication) (“Any lack of credibility of the expert's testimony [matching fingerprints to fingerprint samples in defendant’s pen packet] due to the lack of clarity of the fingerprints in the penitentiary packet went to the weight of the evidence, not its admissibility.”); Tenngasco Gas Gathering Co. v. Bates, 645 S.W.2d 496, 498 (Tex. App.—Corpus Christi 1982, writ ref'd n.r.e.) (“Weaknesses of the facts, however, in support of an expert's opinion go to the weight of his testimony not its admissibility.”); Jahn v. Equine Servs., Inc., 233 F.3d 382, 393 n.8 (6th Cir. 2000) (lack of supporting studies, textual support, or questions as to experts credentials go to weight rather than admissibility); Clay v. Ford Motor Co., 215 F.3d 663, 668 (6th Cir. 2000) (an expert witness’s failure to test alternative theories of defect went to weight, not admissibility); United States v. 14.38 Acres of Land More or Less Situated in Leflore County, Miss., 80 F.3d 1074, 1077 (5th Cir. 1996) (noting that “questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility”); Jordan v. State, 928 S.W.2d 550, 556 (Tex. Crim. App. 1996) (“That some facts were not taken into account by the expert is a matter of weight and credibility, not admissibility.”). 8 of the subject matter on which he is to testify is such that his opinion will likely assist the trier of fact in arriving at the truth. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 500 (Tex. 2001); Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996) (“The rule requires that experts be qualified ‘by knowledge, skill, experience, training, or education,’ and that their testimony ‘assist the trier of fact.’”). Thus, a witness qualifies as an expert if he is more knowledgeable than an ordinary person or the trier of fact with respect to the issue on which he is testifying. Broders, 924 S.W.2d at 153; ITT Commercial Fin. Corp. v. Riehn, 796 S.W.2d 248, 250 (Tex. App.—Dallas 1990, no writ). In deciding whether a witness is qualified as an expert, the court’s only concern should be whether the witness crosses this minimum threshold. “As long as some reasonable indication of qualifications is adduced, the court may admit the evidence without abdicating its gate-keeping function. After that, qualifications become an issue for the trier of fact rather than for the court in its gate-keeping capacity.” Rushing v. Kan. City S. Ry., 185 F.3d 496, 507 (5th Cir. 1999); Lincoln Prop. Co. v. DeShazo, 4 S.W.3d 55, 59-60 (Tex. App.—Fort Worth 1999, pet. denied); see also Daubert, 509 U.S. 579, 596 (1993) (“Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”). B. Relevance The requirement that expert testimony be relevant incorporates the traditional relevancy analysis under Rules 401 and 402 of the Rules of Evidence. E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” TEX. R. EVID. 401. Accordingly, “[t]o 9 be relevant, the proposed testimony must be ‘sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.’” Robinson, 923 S.W.2d at 556. C. Reliability Under the Rules of Evidence, the trial court has broad discretion in determining whether an expert’s opinion is reliable. See Gammill, 972 S.W.2d at 726. “Reliable expert testimony must be based on a probability standard, rather than on mere possibility.” Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 349 (Tex. 2015). The court must make certain that there is not a great “analytical gap” between the data and the opinion offered. Id. at 727. An expert’s opinion based on the expert's personal knowledge and experience can be a potent and even conclusive indicator of reliability. Kumho Tire, 526 U.S. at 150 (“In other cases, the relevant reliability concerns may focus upon personal knowledge or experience.”); See also Gammill, 972 S.W.2d at 722. An expert’s opinion must be founded on sufficient facts and data. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997). However, “[a]s a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross- examination. Only if the expert's opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded.” Bonner v. ISP Techs., Inc., 259 F.3d 924, 929-30 (8th Cir. 2001); see also Jordan, 928 S.W.2d at 556 (Tex. Crim. App. 1996) (“The question under Rule 702 is not whether there are some facts in the case that the expert failed to take into account, but whether the expert’s testimony took into account enough of the pertinent facts to be of assistance to the trier of fact on a fact in issue. That some facts were not taken into account by the expert is a matter of weight and credibility, not admissibility.”); 10 Keo, 76 S.W.3d 725 at 734 (“[F]actual weaknesses underlying an expert’s causation opinion generally go to the testimony’s weight, rather than its admissibility, and the opinion is no evidence only if based completely upon speculation and surmise.”). Because the weight of an expert’s testimony is frequently dependent upon disputed underlying facts, the court should permit the jury to assess the witness’s credibility when the underlying facts are in dispute. Pipitone v. Biomatrix, Inc., 288 F.3d 239, 249 (5th Cir. 2002); Keo, 76 S.W.3d at 734-35 (expert’s opinion not excludable when reliability depends upon jury's determination of existence of underlying fact). An expert may assume that the jury will resolve disputed facts consistently with a party’s theory of the case, so long as the facts from which the inference may reasonably be drawn are ultimately placed into evidence. Sw. Energy Prod. Co. v. Berry--Helfand, 491 S.W.3d 699, 718 (Tex. 2016) (“Further, an expert opinion may be based on assumed facts supported by the record regardless of whether the factual assumptions are contested.”). And similarly, it is acceptable for one expert to rely on the opinions of another expert. Stam v. Mack, 984 S.W.2d 747, 749-50 (Tex. App.—Texarkana 1999, no pet.) (expert pediatrician could base opinion on radiologist's opinion that CT scan showed no abnormality). Finally, while the trial court must act as gatekeeper to ensure that unhelpful opinions are not admitted, the trial court's “gatekeeping” function does not supplant cross-examination as the appropriate means of attacking shaky but admissible evidence. Gammill, 972 S.W.2d at 728. In other words, “in determining the admissibility of expert testimony, the district court should approach its task with proper deference to the jury’s role as the arbiter of disputes between conflicting opinions. As a general rule, questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility 11 and should be left for the jury's consideration.” 14.38 Acres of Land More or Less Situated in Leflore County, Miss., 80 F.3d 1074, 1077 (5th Cir. 1996). IV. THE COURT SHOULD DENY DIAMOND’S MOTION A. Mr. Whitworth is highly qualified to render his opinions based upon his education, background, training, and experience. Mr. Whitworth worked as an electrical engineer for 40 years, until his retirement in 2018 after serving as the Chief Engineer for Indianapolis Power & Light Co. since 2013 and the Principal Engineer from 2001 to 2013. See Ex. 3: Whitworth CV. Here, Defendant Diamond does not explicitly challenge Mr. Whitworth’s qualifications as an experienced electrical engineer. See generally, Defendant’s Motion. As Mr. Whitworth explained in his deposition, he worked in the electrical engineering field designing structures for poles, wires, guys, and anchors for both electric utilities and telecommunication companies. Q. What training or education do you have specifically related to aerial cable systems? ... A. 40 years of working with electric utilities and telecommunication contacts on joint use poles, and that includes design, approving other people's work orders, writing standards that are used by the electric utility and the telecommunication cable companies that contact electric poles. Also writing what's called joint use agreements that are agreements put into place allowing telecommunication companies to contact electric poles. Q. (BY MR. JONES) Other than your 40 years' work experience, do you have any specific education related to design or function of aerial cable systems? A. Several courses that I've taken, professional design courses. They don't lead to certifications and/or degrees, but, yes, there are courses that I've taken that I could provide you information on, if required to show what courses were taken and, you know, what 12 they pertained to. But it's basically the physical structural designs for poles, wires, guys, and anchors, including both electric utilities and telecommunication companies. Ex. 5: Whitworth Dep., at 72:16 to 73:14. Mr. Whitworth’s experience is not limited to electric utilities, he also has extensive experience with telecommunication cables, which is the type of cable that caused the injury incident in this case. Q. Okay. That was a bad question, Mr. Whitworth, so I apologize. I'm just trying to understand Public Service Indiana Company. Do they do power lines and telecommunication lines? A. They're electric -- they were an electric utility company, so their main function was building electric lines. But on the pole owned by Public Service Indiana there were multiple telecommunication companies, and we had to ensure that their facilities plus our facilities all met the requirements of the National Electrical Safety Code for spacing, for structural loading, pole loading, guying, anchoring. PSI - abbreviation for Public Service Indiana - PSI did not install telecommunication lines that are used by the general public. We did install what's called supervisory cable, which is telecommunication lines used by the electric utility to communicate between the electric utility substation. So, yes, we did install telecommunication cables, strands, cables, lashings, that to a normal person would look like a telephone line, but it was not used for telephone lines. Q. And so just from a high level perspective, did your work at Publish Service Indiana Company, did that include design and engineering related to telecommunication lines? A. Yes. Ex. 5: Whitworth Dep., at 74:11 to 75:12. Even Defendant Diamond could not and does not challenge Mr. Whitworth’s qualifications as an expert. In short, there is no question that Mr. Whitworth is highly qualified to testify on the cause of the underlying incident. Mr. Whitworth surely possesses the 13 “knowledge, skill, experience, training, or education” to “help the trier of fact to understand the evidence or to determine a fact in issue.” See TEX. R. EVID. 702. B. Mr. Whitworth has sufficient factual bases for his opinions and has reliably applied his well-reasoned methodology to the facts of this case. As explained in his report, Mr. Whitworth reviewed discovery materials, including area photos of the utility cable, poles, before and after the incident, AT&T’s contract, work order, and other records produced in this case. Ex. 4: Whitworth Report, at pp. 1-2. Based on the specific facts of this case, Mr. Whitworth was able to opine, among other things, that “The AT&T cable crossing Irwin Street at the incident location did not meet the NESC vertical clearance requirements just prior to the incident and was lower than the height of a standard semi-tractor trailer;” “At the time of the incident, the cable crossing Irwin St. was low, but more likely than not, still connected to the AT&T pole on the NE corner of the intersection (pole) by means of a suspended supporting guy (or messenger) wire;” “Prior to the incident the pole at the NE corner of the intersection (pole) leaned to the south, allowing the cable crossing Irwin St. to become abnormally low, and low enough to make contact with the semi;” and “Prior to the incident, the anchor on the north side of the pole either pulled out of the ground (at least partially) or the downguy attachment from the pole to the anchor became loose, allowing the pole to lean to the south, and hence reduced the tension in the cable crossing Irwin St, which caused the cable to sag and become abnormally low above the street.” Ex. 4: Whitworth Report at pp. 1-5. For each opinion, Mr. Whitworth specifically listed the evidence that his opinions are based on. For example, for opinion 4, Mr. Whitworth listed scene photos post-incident but before Defendants’ final repair on the pole and cable, and AT&T’s work 14 order description as the basis for this particular point of opinion. See Ex. 4: Whitworth Report at pp. 3-4. Id. Therefore, Mr. Whitworth’s opinions are based on proper evidence in the record and are reliable and admissible. Diamond attacks Mr. Whitworth’s opinions on the basis that without certain calculations, he cannot say whether the anchor supporting the pole pulled partially out of the ground or the downguy attachment from the pole to the anchor became loose. See Defendant’s Motion, at pp 3-5. However, Diamond’s Motion ignores that the downguy, its attachments, and anchor are a connected system. Mr. Whitworth’s opinion is that this system failed, not that either particular component failed. Further, Mr. Whitworth did not need calculations to see this system failure—he could tell based on the photographs and reference statements he cited as the basis for his opinion. See Ex 4: Whitworth Report at pp. 3-4. Therefore, Mr. Whitworth had a sufficient factual basis for his opinions, and his opinions are reliable. The lack of 15 calculations goes to the weight and credibility of Mr. Whitworth’s opinions, not the admissibility. See Keo, 76 S.W.3d at 734. The Court should deny Diamond’s Motion. C. Mr. Whitworth’s opinions are based on the evidence, not on mere speculation as to alternative causes for the low cable. Diamond’s attacks on Mr. Whitworth’s opinions are entirely based on factual disputes. “The court's ultimate task, however, is not to determine whether the expert's conclusions are correct, but rather whether the analysis the expert used to reach those conclusions is reliable and therefore admissible.” TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 239 (Tex. 2010). Diamond, as the Defendant who installed the pole and cable, attempts to deflect its failures by pointing fingers to a myriad of other causes that have no supporting evidence whatsoever— other than speculation. Mr. Whitworth explained in his deposition that there is no evidence suggesting any of Diamond’s speculations (damaged by a car; a fallen tree, wind, animals, electrical surges (in telecommunication cable), other persons (vehicles), foam, other contractors, vandalism etc.). Q. You heard -- you and Mr. Jones talked for a while about other possible factors for this pole leaning. Do you remember all of that? A. I think so. Q. Have you seen any evidence that this pole was damaged by a car? A. I've not seen any evidence to that, no. Q. Did Mr. Jones show you any evidence today that this pole was damaged by a car? A. No. Q. Have you seen any evidence that a fallen tree was the cause of this pole leaning? A. No. 16 Q. Were you shown any evidence today that a fallen tree caused this pole to lean? A. No. Q. Have you seen any evidence that wind caused this pole to lean? A. No. Q. Were you shown any evidence today that wind caused this pole to lean? A. No. Q. Have you seen any evidence that animals were responsible for damage to the pole or its equipment? A. No, I have not. Q. Were you shown any evidence today that animals were the cause for damage to the pole or equipment? A. No. Q. Have you seen any evidence that an electrical surge caused the damage to the pole? A. No, I have not. Q. Were you shown any evidence today that an electrical surge caused the damage to this pole? A. No. Q. Have you seen any evidence of a person striking the lashing wire besides Mr. Faz? A. No. Q. Were you shown any evidence today of a person besides Mr. Faz striking the lashing wire? A. No. ... Q. Have you seen any evidence of problems with the foam in this case? A. No. Q. Were you shown any evidence today of problems with the foam around the pole? A. No. 17 Q. Have you seen any evidence of other contractors working on that pole? A. No. Q. Were you shown any evidence today that there were other contractors that worked on that pole? A. No. Q. Have you seen any evidence of vandalism to this pole? A. No, I have not. Q. Were you shown any evidence today of vandalism to that pole? A. No. Ex. 5: Whitworth Dep., at 114:24 to 117:17. In fact, Mr. Whitworth specifically explained in his deposition that there are three possibilities in causing the pole leaning south resulting the low-hanging cable and he ruled out the other two possibilities. Q. But what we see here is as far as the pole leaning to the south, there's three possibilities: the guy wire grips failing, the anchor pulling partially out of the ground, or the anchor rod itself failing, correct? A. Right. Q. And as far as those three possibilities, those are all possibilities as to what may have caused the pole to be leaning to the south, correct? A. Yes. Q. You haven't been able to rule out any of those three possibilities, true? A. The anchor plate itself failing, becoming separated from the anchor rod, is ruled out from the photographic evidence of the anchor that was removed. There's a photograph after the accident showing the condition of the anchor. Q. And I guess that'd be a separate question as far as the component parts of the anchor failing. Is that something you've been able to rule out? 18 A. The plate part itself, again from photographic evidence, doesn't appear to be failed. The anchor rod itself did not break. It did not fail. The photographs show the eye - some people refer to it as the head of the anchor where the guy wire attaches - that did not fail, again from photographic review. The rod is bent, but it did not fail. Q. All right. As far as the anchor plates where it actually expands out, do you know whether that portion of the anchor actually failed prior to the accident? A. From the photographs, my opinion is it did not fail as steel failure. It appears just to have pulled through the soil. Ex. 5: Whitworth Dep., at 105:19 to 107:2. In addition to ruling out Diamond’s speculations, Mr. Whitworth also explained the deficiencies of Diamond’s work. Q. Mr. Whitworth, just real quickly. Do you have any evidence that any of Diamond H's work at this intersection was improper or defective? A. The evidence I've seen indicates the anchor pulled up. If the anchor system, including the anchor and the downguy, had been sufficient to hold the load on the pole, the anchor would not have pulled up. Typically, you ensure that your anchor holding power is not the weak point but the strand itself would actually break first, so if something hits it, it breaks the strand and the cable comes down. It doesn't make the pole lean causing other issues. So specifically, no calculated values, but I would not have expected the anchor to pull out. And the repair work that was done also leads me to think that it was inadequate, because prior to the accident, there was one anchor and one downguy with a fairly short guy lead. After the repairs, they installed two anchors with a downguy on each at a much further distance from the pole, which would all equate to having a stronger anchor and downguy system on that pole. Ex. 5: Whitworth Dep., at 117:24 to 118:19. “Reliable expert testimony must be based on a probability standard, rather than on mere possibility.” Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 349 (Tex. 2015). An 19 expert’s opinion must be founded on sufficient facts and data. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997). But Diamond is arguing the opposite: Diamond wants experts to opine based on speculation and possibility. Q. (BY MR. JONES) Do you agree that lightning can be a cause of lashing wire breaking? ... A. Yes, I would agree with that. Q. (BY MR. JONES) Do you agree that wind can be a cause of lashing wire breaking? ... A. In general, wind would not cause a lashing wire to break; but if you had an extreme wind event, such as a hurricane, tornado, something of that nature, yes, I would agree that that could cause it to break. Q. (BY MR. JONES) Do you agree that an electrical surge can cause a lashing wire to break? ... A. Electrical surge that is sending electricity through the lashing wire could potentially melt the lashing wire, but lashing wires are not meant to carry any electrical current. Q. (BY MR. JONES) Do you agree that a vehicle hitting a cable or cable and strand can cause the lashing wire to break? A. Yes. ... Q. (BY MR. JONES) Do you agree that vandalism can cause a lashing wire to break? ... A. It can, yes. Q. (BY MR. JONES) Do you agree that trees falling can cause a lashing wire to break? ... A. It can, yes. Q. (BY MR. JONES) Mr. Whitworth, do you agree that animals can cause lashing wire to break? 20 A. Certain animals, yeah. ... Q. (BY MR. JONES) And one of those animals could include squirrels, right? ... A. Possibly. Q. (BY MR. JONES) Is that something you've experienced in the past as an occasion where squirrels biting through lashing wire have caused a lashing wire to break? A. I've never seen that, no. Ex. 5: Whitworth Dep., at 94:19 to 96:15. There is not a shred of evidence that any of these imaginary lightening, squirrels, wind or trees etc. at all caused the underlying incident. An expert’s opinions based on evidence and refusing to speculate based on conjured animals are reliable, not the opposite. Because Mr. Whitworth’s observations and opinions are based on his expertise and the specific facts of this case, his opinions are proper and reliable, and thus admissible. Consequently, the Court should deny Defendant’s motion. D. Defendant’s arguments go to the weight, not the admissibility, of Mr. Whitworth’s opinions. Diamond’s attacks on Mr. Whitworth’s opinions are entirely based on factual disputes—beside their erroneous interpretation of the law and mischaracterization of Mr. Whitworth’s opinions. “The court’s ultimate task, however, is not to determine whether the expert's conclusions are correct, but rather whether the analysis the expert used to reach those conclusions is reliable and therefore admissible.” TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 239 (Tex. 2010). Because Mr. Whitworth’s opinions are tied to the specific facts in the case which likewise provided support for his conclusions and opinions, Mr. Whitworth’s expert testimony meets our standard for reliability. See id. at 240 (holding that “[h]is 21 observations, measurements, and calculations were, as in Ledesma, tied to the physical evidence in the case which likewise provided support for his conclusions and theory, [the plaintiff’s] expert testimony thus meets our standard for reliability”). Of course, to the extent that Defendant disagrees with Mr. Whitworth, it will have the full opportunity to “vigorously” cross-examine Mr. Whitworth at trial. See Primrose Operating Co. v. National American Ins. Co., 382 F.3d 546, 562 (5th Cir. 2004); See also Hartley v. Dillard’s Inc., 310 F.3d 1054, 1061 (8th Cir. 2002) (“As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.”). At most, Defendant’s criticisms, valid or not, go to the “weight and credibility, not admissibility” of Mr. Whitworth’s testimony. Keo, 76 S.W.3d at 734 (“[F]actual weaknesses underlying an expert’s causation opinion generally go to the testimony’s weight, rather than its admissibility, and the opinion is no evidence only if based completely upon speculation and surmise.”). V. CONCLUSION For the foregoing reasons, the Court should deny Defendant Diamond H Services, Inc.’s Motion to Exclude Mr. William Whitworth. Respectfully submitted, ARNOLD & ITKIN LLP /s/ Alec Paradowski Kurt Arnold SBN: 24036150 karnold@arnolditkin.com Caj D. Boatright 22 SBN: 24036237 cboatright@arnolditkin.com Roland Christensen SBN: 24101222 rchristensen@arnolditkin.com Alec Paradowski SBN: 24124773 aparadowski@arnolditkin.com 6009 Memorial Drive Houston, TX 77007 Tel: 713.222.3800 Fax: 713.222.3850 e-service@arnolditkin.com ATTORNEYS FOR PLAINTIFFS 23 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been forwarded to all counsel of record on this 29th day of December 2022. /s/ Alec Paradowski Alec Paradowski 24 EXHIBIT 1 EXHIBIT 2 CAUSE NO. DC-20-10495 Heriberto Faz § IN THE DISTRICT COURT § Plaintiff, § § v. § § DALLAS COUNTY, TEXAS Southwestern Bell Telephone Company § d/b/a AT&T Texas and § Diamond H Services, Inc. § § Defendants. § 116TH JUDICIAL DISTRICT PLAINTIFF’S DESIGNATION OF EXPERTS Plaintiff Heriberto Faz Reyes serves this Designation of Expert Witnesses in accordance with the Scheduling order as notice that he intends to call the following witnesses at the time of trial to provide expert testimony in this case: 1. Srinivason R. Parthasarathy, M.D. Physician Life Care Planning 2829 Babcock Road, Suite 600 San Antonio, Texas 78229 (210) 692-2000 Dr. Parthasarathy will testify regarding his evaluation of the medical condition of Plaintiff as a result of the injuries he received in the incident made the basis of this suit and his projected medical cost analysis for Plaintiff’s future medical needs and costs. Dr. Parthasarathy will also testify as to Plaintiff’s physical condition based upon his own physical evaluation and the medical records in the case. Dr. Parthasarathy will also offer opinions as the reasonableness and necessity of medical treatment Plaintiff has received from the incident in question as well as the reasonableness and necessity of medical treatment Plaintiff will require in the future. Dr. Parthasarathy will also offer opinions as the reasonableness and necessity of medical bills, and the usual and customary charges for said services, and the medical necessity of same to treat Plaintiff’s conditions and injuries caused by the incident. Dr. Parthasarathy’s opinions with respect to future medical care will extend to the cost of: (1) physician care; (2) diagnostic studies; (3) medication; (4) labs; (5) rehabilitation services and supplies; (6) environmental modifications and essential services; (7) nursing and attendant care; and (8) surgical care needs. Dr. Parthasarathy will also provide causation testimony as to Plaintiff’s injuries that resulted from this incident predicated upon the facts, his education, experience, training and background. Dr. Parthasarathy has and/or will review all medical and billing records in this case. His expert opinions are based on his 1 knowledge, education, experience, and the literature in his field of expertise and documents reviewed. He may express additional opinions in deposition or at trial. Plaintiffs will supplement this designation with any further substantive opinions by Dr. Parthasarathy when they become available. Dr. Parthasarathy’s report and current resume are attached as Exhibit A. 2. Harold A. Asher, CPA, ABV, CFF, CVA, CFE, FCPA Jeffrey E. Meyers, CVA, MAFF, CFE Asher & Myers, LLC 433 Metairie Road, Suite 215 Metairie, Louisiana 70005 504/566-7577 Mr. Asher and Mr. Meyers will testify regarding Plaintiff, Dallas Theriot’s loss of earning capacity. They will use the “below market discount” methodology. Mr. Asher and Mr. Meyers will consider: (1) Plaintiff’s earnings at the time of injury; (2) Plaintiff’s age; (3) Plaintiff’s work-life expectancy according to Department of Labor statistics; (4) future real compensation growth; (5) benefits; (6) work expenses; (7) taxes and Social Security; (8) discount rates; (9) post injury earning capacity as dictated by Plaintiff’s treating physicians; and (10) potential loss of household services. On balance, Mr. Asher and Mr. Meyers will provide the jury with a means of calculating loss of earning capacity given the foregoing calculation. While Mr. Asher and Mr. Meyers may use demonstrative calculations, the ultimate figure for loss of earning capacity will be left for jury determination. Mr. Asher and Mr. Meyers current resumes are attached as Exhibit B. 3. William Whitworth 2734 N. 700 E. Franklin, Indiana 46131 317/918-4319 Mr. Whitworth is expected to testify regarding the sufficiency of the design and construction and of the lines and poles in question and their related appurtenances. It is expected that Mr. Whitworth will provide testimony concerning the adequacy of the supporting guides and anchors and the related NESC requirements, the industry standard methods for supporting wires, cables, and installation of down guides and anchors, and the probable root cause of the low hanging wire that caused this incident. Mr. Whitworth is expected to testify regarding the conduct that led to this incident and all aspects of liability (including causation) regarding the incident in question. Mr. Whitworth is expected to testify that Defendants failed to take adequate steps and precautions to maintain, inspect, and/or install the line(s) and related pole(s) in question. 2 Mr. Whitworth is expected to testify that these actions/inactions on the part of Defendants were a direct cause of Plaintiff’s injuries. Mr. Whitworth is further expected to address all other aspects of liability and will address corresponding opinions of experts hired by Defendants in this case to the extent they are within his expertise. He may express additional opinions in deposition or at trial based on additional information that becomes available in discovery. Mr. Whitworth’s current resume are attached as Exhibit C. 4. William L. Davenport Physician Life Care Planning 11550 W. IH-10 #375 San Antonio, Texas 78230 (210) 501-0996 Mr. William L. Davenport is a certified healthcare financial professional. Mr. Davenport will assist the jury by providing present value calculations relating to the costs associated with Plaintiff’s future medical care. Mr. Davenport will provide the detail the nominal value of the services set forth in Mr. Faz Reyes’s life care plan prepared by, will calculate the future value of such medical care, and will then calculate the present value of such medical care. As with all life care plans, Mr. Faz Reyes’s life care plan will not account for the time value of money nor the impact of inflation on medically related goods and services. Mr. Davenport’s calculations will take those factors into account to reach a present value calculation of Mr. Faz Reyes’s future care. Mr. Davenport has provided a present value assessment for Dr. Parthasarathy’s life care plan in this case, which has already been provided to Respondent. Mr. Davenport will also provide a similar present value assessment for Dr. Parthasarathy’s life care plan, following the exact same methodology. Mr. Davenport’s report and current resume are attached as Exhibit D. The following physicians and medical facilities have knowledge of Plaintiff’s injuries and medical treatment and may be called up to give expert testimony. They have provided care and treatment to Plaintiff. As such, they possess expertise and knowledge in their respective area. Specifically, they may testify about care, treatment, diagnosis, prognosis, causation, physical restrictions, reasonable costs for medical care in the past and future, and the need, if any, for future treatment. Their mental impressions and opinions may be found in Plaintiff’s medical and billing records and their deposition testimony, if any. The custodians of records for these medical providers will provide testimony necessary to prove up the medical and billing records. Eagle Pass Chiropractic 1995 Main Street, Suite B Eagle Pass, TX 78852