Moore v. Polish Power, Inc.

720 S.W.2d 183, 1986 Tex. App. LEXIS 9245
CourtCourt of Appeals of Texas
DecidedOctober 28, 1986
Docket05-85-01287-CV
StatusPublished
Cited by11 cases

This text of 720 S.W.2d 183 (Moore v. Polish Power, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moore v. Polish Power, Inc., 720 S.W.2d 183, 1986 Tex. App. LEXIS 9245 (Tex. Ct. App. 1986).

Opinion

WHITHAM, Justice.

In this personal injury case tried before the court, appellants, Nancy L. Moore and Thomas Moore, appeal a take-nothing judgment in favor of appellees Polish Power, Inc., Ernest Romanowski and Harold Ro-manowski, individually and doing business as Polish Power Enterprises (Polish Power), and L.D. Brinkman & Co. (Texas Inc.) (Brinkman). The principal issue involves an evidentiary ruling made by the trial court in an aborted jury trial immediately before the bench trial. The trial court’s evidentiary ruling precipitated the bench trial. The parties treat Brinkman’s objection to the evidence and the trial court’s ruling on that objection as part of the non-jury trial. We treat the objection and trial court ruling in the same manner. We conclude that the trial court erred in excluding the evidence. We conclude further that the trial court’s error was reasonably calculated to cause and probably did cause rendition of an improper judgment. TEX.R. APP.P. 81(b)(1). Accordingly, we reverse and remand.

We begin by reference to our Supreme Court’s decision in Morgan v. Compu-graphic Corp., 675 S.W.2d 729 (Tex.1984). In a personal injury case, the plaintiff typically alleges that the defendant’s conduct caused an event — an automobile accident, a fall, or in this case, the release of chemical fumes — and that this event caused the plaintiff to suffer injuries for which compensation in damages should be paid. Morgan, 675 S.W.2d at 731. Thus, at trial the plaintiff must establish two causal nexuses in order to be entitled to recovery: (a) a causal nexus between the defendant’s conduct and the event sued upon; and (b) a causal nexus between the event sued upon and the plaintiff’s injuries. Morgan, 675 S.W.2d at 731. In Morgan, the court held that a default judgment admits that the defendant's conduct caused the event upon which the plaintiff’s suit is based. Morgan, 675 S.W.2d at 732. There was no default judgment in the present case. Therefore, Brinkman insists that Moore must show that Brinkman’s conduct caused the event in issue — the release of formalde *185 hyde fumes in Moore’s home. Absent that showing, Brinkman asserts that directed verdict was proper. Moore argues that she did show that Brinkman’s conduct caused the event in issue — the release of formaldehyde fumes in her home — and, therefore, directed verdict was improper. We agree with Moore.

At this point, we describe the procedural aspects of the present case. Moore alleged that she purchased carpet and carpet pad from Polish Power which was installed in the Moore residence by Polish Power. Polish Power purchased the carpet and carpet pad from Brinkman. Moore alleged further that the carpet and carpet pad emitted or “off-gassed” formaldehyde, causing her neurological and muscular problems. Moore asserted three causes of action; first, strict tort liability; second, negligence; and third, breach of implied warranties of merchantability under TEX.BUS. & COM.CODE ANN. § 2.314 (Vernon 1968). Jury trial commenced October 7, 1985. Before that date, on September 9, 1985, Brinkman filed a motion to exclude certain deposition testimony of Moore’s witness, Dr. Donald Sprague. In its motion, Brink-man objected to Sprague’s testimony:

[Rjelating to any characteristics of the carpet provided by Defendant L.D. Brinkman to Defendant Polish Power which was subsequently sold to Plaintiff Moore, including but not limited to the formaldehyde content, formaldehyde emission rate and issue as to whether the carpet in question is unreasonably dangerous be excluded from the hearing of the jury in the trial of this matter.

Brinkman’s motion did not otherwise identify the Sprague testimony sought to be excluded. On October 7, 1985, after the jury was seated, the trial court granted Brinkman’s motion to exclude. The excluded evidence is as reflected in the trial court’s following order:

After hearing, IT IS ORDERED that the motion to exclude testimony of defendant L.D. Brinkman & Co. (Texas), Inc., filed October 3, 1985, [sic] is granted, and the
following deposition testimony of Dr.
Donald E. Sprague is excluded:
page 9, line 23 — page 11, line 14; page 12, lines 7 — 23; page 13, line 5 — page 14, line 25; page 15, lines 4-25; page 18, line 7 — page 20, line 13; page 26, lines 10-23; page 35, lines 1-6; page 57, lines 16-22; and page 75, lines 16-21.
Signed: October 7, 1985.

Sprague’s excluded testimony follows:

Page 9, line 23 through page 11, line 14

Q Following the examination and test or testing done, Doctor, were you able to come to an opinion or conclusion as to in reasonable probability what was ailing this lady?

A Well, the one thing that struck me was that the only real change that had occurred in her environment was that she had new carpet put in the house approximately a month before the symptoms began; otherwise, she had been fairly stable — she was an allergic person and had had a lot of difficulty in the past but she was coping, and approximately a month after that happening, her health began to deteriorate markedly and she began the merry-go-round that she was on when I saw her.

What was the rest of that question or does that answer it?

Q Were you able to come to an opinion or conclusion as to what her problem was?

A Yes.

Q What was that opinion, please, sir?

A I felt that the exposure to the carpet was what triggered the symptomology that she came to me with and that she had been suffering with prior to — you know, prior to seeing us and was probably responsible for the whole clinical picture that she was undergoing at the time.

Q Doctor, what, in your opinion, was it about the carpet that was the cause of the *186 clinical picture you were seeing at that time in your opinion?

A I think probably the largest problem with the carpet was the formaldehyde off-gassing that occurs with new carpet for two to three years. There are probably other chemicals involved, the formaldehyde being the major one.

Q Doctor, from you[r] experience in environmental medicine, have you come to know what certain types of synthetic carpets are made with formaldehyde in their processes?

A Yes, synthetic carpets, particularly Dacron, nylon, things along that line. You don’t see this in like Persian carpets, things that are hand woven [sic]. You don’t see it in wool but you do find it most frequently in synthetic carpet.

Page 12, lines 7-23

Q What is it about formaldehyde, Doctor, as it’s used in manufacturing these carpets, the nature of the product as used, that causes it to emit formaldehyde vapors once it’s put down?

A I’m not exactly sure. Well, first off, I don’t know that putting it down is what the problem is. The formaldehyde, I think, is used in the actual construction of the material from which the carpet is made.

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Bluebook (online)
720 S.W.2d 183, 1986 Tex. App. LEXIS 9245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-polish-power-inc-texapp-1986.