Schindler Elevator Corporation v. Darren Ceasar

• Court: Court of Appeals of Texas
• Decided: November 30, 2021
• Docket: 09-19-00419-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00419-CV __________________

SCHINDLER ELEVATOR CORPORATION, Appellant

V.

DARREN CEASAR, Appellee

__________________________________________________________________

On Appeal from the 136th District Court Jefferson County, Texas Trial Cause No. D-200,813 __________________________________________________________________

MEMORANDUM OPINION

Appellee Darren Ceasar (“Ceasar,” “Plaintiff,” or “Appellee”) filed a personal

injury lawsuit against Appellant Schindler Elevator Corporation (“Schindler,”

“Defendant,” or “Appellant”) and 904 Hotel Operating LLC d/b/a MCM Elegante

Hotel (“the Elegante”) for damages for injuries he alleged he received while riding

in an elevator in the Elegante. Before trial, the court granted summary judgment for

1 the Elegante.1 A jury returned a verdict for Ceasar and awarded $841,754.82 in

damages. The trial court denied Schindler’s motion for new trial, entered a final

judgment on the verdict, and imposed $25,000 in sanctions against Schindler for

pretrial discovery abuse. In seven issues, Appellant challenges the exclusion of

certain evidence, the jury charge, document production required by the court during

trial, sanctions, and the denial of Schindler’s motion for mistrial. We affirm.

Ceasar’s Petition

Ceasar filed his Original Petition against the Elegante and Schindler on

October 12, 2017, and he filed an amended petition on October 15, 2018. Ceasar

alleged he was injured while riding an elevator at the Elegante. According to the

petition, the elevator failed to stop at the seventh floor, “slammed into the top of the

elevator shaft[,]” and became stuck. According to the petition, the panic button in

the elevator failed to work, and Ceasar called 911 from his cell phone. After about

half an hour, the fire department arrived and helped Ceasar out of the elevator. The

petition alleged that Ceasar suffered injuries to his neck and back as well as mental

1 In an earlier appellate case, Ceasar and 904 Hotel Operating LLC d/b/a MCM Elegante Hotel (the Elegante), were parties to an appeal and before this court issued a decision the parties filed a joint motion to dismiss the appeal, which we granted. See Ceasar v. 904 Hotel Operating LLC, No. 09-19-00102-CV, 2021 Tex. App. LEXIS 2022 (Tex. App.—Beaumont Mar. 18, 2021, no pet.) (mem. op.). The Elegante is not a party to this appeal. 2 pain and anguish from the incident, that his ability to work was “substantially

reduced[,]” and he had needed “continuous medical treatment.”

Ceasar brought claims for negligence and gross negligence against the

Elegante and against Schindler, the company that executed a contract with Elegante

to maintain, repair, and inspect the elevators. According to the petition, the

defendants had actual knowledge of the defective and dangerous nature of the

Elegante elevators because another hotel guest was injured on October 10, 2014,

when an elevator fell several floors. Ceasar also brought a premises liability claim

against the Elegante. The petition alleged that res ipsa loquitur 2 applied to both

defendants. Ceasar sought compensatory and punitive damages.

2 Res ipsa loquitur is Latin for “the thing speaks for itself.” Res Ipsa Loquitur, Black’s Law Dictionary (9th ed. 2009). It is not a separate cause of action, but generally it allows a plaintiff to be relieved from proving a specific act of negligence by the defendant when it is impossible for the plaintiff to determine the sequence of events, or when the defendant has superior knowledge or means to determine the cause of the accident. Jones v. Tarrant Util. Co., 638 S.W.2d 862, 865 (Tex. 1982). The Texas Pattern Jury Charge includes an instruction on res ipsa loquitur and it states as follows: In answering this question, you may infer negligence by a party but are not compelled to do so if you find that (1) the character of the occurrence is such that it would ordinarily not happen in the absence of negligence and (2) the instrumentality causing the occurrence was under the management and control of the party at the time that the negligence, if any, probably occurred. Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Malpractice, Premises & Products PJC 51.8 (2018). 3 Evidence at Trial

Testimony of the Plaintiff

Darren Ceasar testified that he is forty-three years old, and he works as a

barber in Eunice, Louisiana. Ceasar testified that he went to the Elegante Hotel for

a vacation. According to Ceasar, after he checked in at the Elegante, he went up to

his room on the seventh floor without his bags to see what the room looked like.

Then he went back downstairs and spoke to a lady in the bar, then he left the hotel

to get a pizza, and returned with the pizza and got back into an elevator carrying a

pizza and his bag to go back to his room. According to Ceasar, as the elevator

approached the seventh floor, it started speeding, it went past the seventh floor, the

elevator started shaking with a vibration, he heard metal grinding, and the elevator

came to an abrupt stop. Ceasar recalled that, due to the impact of the stop, he dropped

the pizza and his bag, and the stop “jarred [his] body.” Ceasar testified that he

pressed buttons in the elevator to open the door and to sound the elevator alarm, but

the alarm got quieter. Ceasar was nervous about being stuck in the elevator and he

started panicking and worrying that the elevator was going to fall.

After about three to five minutes, he used his cell phone to call 911. Ceasar

testified that when the firefighters arrived, they told him to “[h]old on[,]” and then

they opened the door and got him out. Ceasar recalled that he felt

“discombobulated[,]” he had to take a step down to get off the elevator, and he “just

4 want[ed] to get away from there.…away from the elevator.” Ceasar testified that

after he got out of the elevator, he took the stairs down because he did not want to

deal with any elevators, and afterwards the hotel moved him to a room on the main

level. Ceasar testified that he went to the new room, and he decided to rest a little

while, and that is when he started feeling pain. Ceasar eventually checked out of the

hotel and left to find a hospital. Ceasar explained that he was not familiar with the

Beaumont area, and when he did a Google search for hospitals, he found one in Port

Arthur, where they treated him, and he received a prescription. Ceasar agreed that

before the elevator incident, he had previously had a sore neck and back, and he

testified that he told people at the hospital that he had previously had pain in his neck

and back.

Ceasar testified that he told Dr. Brennan, the doctor who did surgery on his

back after the elevator accident, about his prior neck and back pain. According to

Ceasar, although he had neck and back pain before the elevator incident, his neck

and back pain got worse after the elevator incident. Ceasar testified that the surgery

Dr. Brennan performed helped his back a little, but his neck still hurts.

Ceasar testified that he made a Facebook Live video while he was waiting in

the elevator to let people know where he was, and in the video, he was screaming

for help, kicking and knocking on the door, and saying “[h]elp me.” According to

Ceasar, the following day, people were commenting on the video, and he did not like

5 the way it made him feel because it was like “reliving the moment [] again[,]” and

he deleted the video. Ceasar testified that he wished he had the video to show the

jury.

On cross-examination, Ceasar testified that at first, the hotel elevator moved

normally, but it stopped abruptly on the ninth floor, and he heard a boom and

clacking as though the elevator was vibrating. Ceasar recalled that the force of the

abrupt stop caused his pizza and bag to fall to the floor of the elevator. According to

Ceasar, the abrupt stop caused him to have pain in his neck and back. Ceasar said he

does not think he fell but he really did not remember. Ceasar testified that he pressed

buttons to try to get out, and initially the panic button made a sound, but ultimately

the sound stopped. Ceasar denied that he thought about suing before he deleted the

Facebook Live video.

According to Ceasar, he told the woman working at the front desk that he got

stuck in the elevator and she laughed at him and said, “Steve [is] going to be mad.

They just worked on those elevators.” Ceasar recalled that another customer walked

up and said, “I hear someone got caught in the elevator[,]” and the desk clerk pointed

at him and smirked. Ceasar testified that right after the accident he called his sisters,

and he also spoke with his brother-in-law, who is an attorney. According to Ceasar,

when things calmed down and he went to his room, he started feeling the pain

increase.

6 Ceasar recalled that someone told him he needed to speak to the general

manager who was at the bar, he told her about the incident and that he was injured,

and she said she would like to make a report. Ceasar’s handwritten report to the

Elegante was admitted as Defense Exhibit 10.

According to Ceasar, someone in the hotel told him there was a hospital

nearby, but after driving about fifteen minutes, he could not find it, so he stopped

the car and Googled “hospital[]” and he went to the first hospital in the search results.

Ceasar testified that he walked into the hospital in Port Arthur, told them what

happened, and he received an X-ray and medication. Defense counsel asked Ceasar

about the hospital report statements that he “walked in without difficulty or

limping[]” and “appears in no apparent distress[,]” and Ceasar replied that the

woman he spoke with was rude to him and perhaps did not see his emotions and he

told her his pain was at level 10. Ceasar also testified that he told people at the Port

Arthur hospital that he had previously had back problems and a herniated disc.

Ceasar recalled that prior to the elevator incident, he had seen Dr. Metoyer in

Louisiana for back pain, and records were admitted into evidence that reflect dates

of service for Ceasar in 2014, 2015, and 2016, all prior to the elevator incident. The

records reflect Ceasar had previously complained of neck and low back pain,

tenderness, stiffness, limited range of motion, headaches, numbness and tingling in

his legs. Ceasar agreed that he also saw Dr. Metoyer for back pain in 2013, where

7 an MRI revealed a lumbar herniated disc, that he sought treatment for back pain at

Opelousas General Hospital in 2016, and that he sought treatment for back pain at

University Hospital in Lafayette in 2016.

Testimony of Plaintiff’s Elevator Expert, John Freeman

John Freeman testified that he has worked in the elevator business for thirty-

eight years, most recently in consulting and inspections, and he is a certified elevator

inspector. Freeman agreed that when preparing his opinions in this case, he reviewed

the deposition testimony of Michael Prudhomme. Freeman testified that the elevator

involved in the incident was Elegante Elevator No. 2.

According to Freeman, on August 13, 2017, the elevator was not functioning

properly, and it is not normal for a properly functioning elevator to go to the wrong

floor or beyond the top of the highest floor. Freeman agreed that it is typical for

property owners to rely on an elevator company for elevator maintenance. Freeman

testified that the maintenance and repair contract between the Elegante and Schindler

covered four elevators—two passenger elevators, one service elevator, and one

hydraulic passenger elevator—for a fee of $1600 per month. Freeman testified that

under the contract, the Elegante agreed not to permit any entity other than Schindler

to work on the elevators and that Schindler had control over the maintenance of the

elevators at the Elegante. Freeman testified that industry standards available from

8 the National Elevator Institute (NEI) reflect that two to three callouts a year are

“acceptable[]” for elevators at a hotel the size of the Elegante.

Freeman testified that an SDI board is “a position and velocity control board,

speed board [that]…controls the speed [at] which the elevator will run.” According

to Freeman, an “SDI board should last almost the lifetime of the elevator[]” and it is

not something that is routinely switched out and repaired. According to Freeman,

over his career, he had never had to replace multiple SDI boards on an elevator in

the span of a few months. Based on his review of the maintenance records for the

Elegante elevators, Freeman testified that there were problems with doors on

“probably 80 percent of the callouts” on Elevator No. 2, the elevator involved in the

incident, and there were records of Schindler having to “reprogram or relearn” the

elevators, which Freeman testified does not happen often. According to Freeman,

reprogramming or relearning is “going back and resetting [the] elevator back up to

run again [and] [i]t should never happen once it’s been set up unless you have a []

bad board or something that needs to be changed.” According to Freeman, he had

not seen any evidence that power issues caused the incident with Ceasar.

Freeman testified about the service tickets for May 18; June 26, and 28; July

11, 19, and 28; and August 3, 6, and 13, 2017, for problems with power and fuses,

SDI boards, doors, “rubbing and bouncing” due to a lack of oil, and other customer

complaints. Freeman also testified about the service tickets for August 15, 16, 24,

9 and 31 and September 2, 5, 7, and 19, 2017, reflecting problems with the SDI board,

showing “overspeeding,” speed tests, and problems with the doors.

According to Freeman, every elevator malfunction creates a fault code that is

stored in the elevator’s electronic memory and shows the speed of the elevator, the

reasons for an abrupt stop, and the location of the elevator when it stopped. Freeman

testified that he inspected the elevator but was not able to inspect the fault codes

because they were “gone.” According to Freeman, it is “industry standard” to keep

fault codes and part of the Texas Department of Licensing and Regulation (TDLR)

inspection report requirements that fault codes be logged when normal maintenance

or a “trouble call[]” occurs and “[t]hat’s part of the maintenance control program,

all fault codes in any instance be written down.” Freeman also testified it is not

necessary to delete fault codes to return an elevator to service. According to

Freeman, the Schindler elevator mechanic deleted the fault codes, did not record the

results of the speed tests, and there was no legitimate reason not to record the speed

tests. Freeman testified that when he inspected Elevator No. 2, he asked Schindler

to do speed tests, but Schindler refused.

Freeman explained to the jury that it is not typical for SDI boards to need work

or replacement as frequently as the Schindler service tickets reflected, and the

service tickets reflected that the SDI board in Elevator No. 2 had a problem both

10 before and after the incident. Freeman testified that he would not normally expect to

see repeated instances of reprogramming and relearning, and:

They were not properly maintaining them, and they were not fixing the problems. They either couldn’t figure out what was wrong with it and just kept patching it or putting a Band-Aid on it and trying things. But, no, they [weren’t] maintaining it to keep it in proper working order.

Freeman agreed that each elevator should have a “check sheet” for “the life of

the elevator” to record when maintenance is done. According to Freeman, a typical

check sheet does not look “freshly printed[,]” the handwriting will be in different

colored inks, and older pages may fade or show spills. Freeman identified Exhibit

P1-2 as a Schindler check sheet that he believed looked “brand new[]” and “freshly

filled out[,]” and he thought P1-2 and P1-3 looked like they had been filled out by

the same person. Freeman testified that he asked the Schindler workers who were

with him when he did his inspection why the check sheets looked so fresh, and

“[t]hey mostly just smiled at me and didn’t say anything[]” and according to

Freeman, they never denied that the sheets looked brand new.

According to Freeman, an inspection should be done annually to check the

operation of the elevator and safety devices, and every five years, there is a full-load

test, testing the elevator at full capacity and at “contract speed.” Freeman testified

that a full-load, five-year test for Elevator No. 2 was due in 2018, but to his

knowledge, that inspection still had not occurred. In Freeman’s opinion, the elevator

11 did not look clean or well-maintained, and it appeared that some parts had not been

touched for a year or two.

Freeman testified that the elevator did not actually hit the top of the shaft

because there is an overhead of a few feet, but that when an elevator stops abruptly

as Ceasar described, it could feel like hitting the top of something. According to

Freeman, if the elevator’s SDI board was malfunctioning, it would cause a severe,

abrupt stop because the SDI board controls the speed and position of the car.

Freeman agreed he reviewed the opinions of the defendants’ expert Jon

Halpern, and a drawing Halpern had done to calculate force was not accurate.

According to Freeman, if someone sent him for a building assessment at the

Elegante, he would recommend changing elevator companies because the

maintenance was very poor, and he believed “the owner’s not getting what they’re

paying for and they’re having a lot of issues and inconvenience for their guests.”

During direct examination, the plaintiff’s attorney asked Freeman “what’s

Schindler’s general reputation in the elevator industry, especially here in the State

of Texas?” Schindler did not lodge any objection to the question at that time, and

Freeman answered, “they have a very poor reputation here in Texas.” On

cross-examination, Schindler’s attorney asked additional questions of Freeman

about his basis for stating that Schindler had a poor reputation and then on redirect

examination, Ceasar’s attorney asked further questions regarding Schindler’s

12 reputation. The Defendant then lodged an objection that the “reputation” testimony

was hearsay, and the trial court overruled the objection stating the defense had

“opened the door” but otherwise instructed the witness not to repeat hearsay.

Freeman also testified that he had seen no evidence that Schindler did a documented

investigation after this incident to determine the root cause of this incident.

Freeman opined that based on his thirty-eight years in the industry, he did not

believe that Schindler properly maintained the Elegante elevators, and he reached

the conclusion that Schindler’s poor maintenance contributed to Ceasar’s incident

because the callouts persisted before and after the incident. Freeman also believed

that the SDI board may have caused the elevator to malfunction and stop

unexpectedly because the SDI board controls the position and speed of the elevator

and because the SDI board was malfunctioning both before and after the incident. In

Freeman’s opinion, an SDI board does not ordinarily fail if maintenance is properly

done.

On cross-examination, Freeman testified that the Schindler employee,

Michael Prudhomme, who had worked on the Elegante elevators, did not follow the

proper procedures. According to Freeman, the fact that Elevator No. 2 did not stop

at floor level and shut itself down meant everything was not properly working, and

The elevator stopped when it went into the overhead. The code didn’t stop it. The elevator stopped itself by mechanical switch. The code had nothing to do with it. The fault generated -- that situation generated a fault code. Didn’t have anything to do with the elevator shutting itself 13 down other than a mechanical switch because the elevator overtravelled past the limit[.]

Freeman was unable to say whether the “overspeed governor tripped” or the “SDI

board failed” on the day of the incident because there were no details in the records

and no fault codes. Freeman agreed that the SDI board was replaced ten days before

the incident and that a faulty SDI board or one that was installed incorrectly could

have caused the incident.

On redirect, Freeman testified that, based on Freeman’s reading of

Prudhomme’s deposition testimony, Freeman believed that Prudhomme deleted all

the fault codes. Freeman testified that the work tickets reflect that Schindler spent

eight hours adjusting the speed on the SDI board and four hours testing the backup

speed system within three days of the incident, and Freeman thought that “[t]he only

reason to spend 12 hours on an elevator [is] either you can’t find the problem or you

can’t seem to get it under control.” When asked whether the SDI board contributed

to the incident, Freeman testified “I believe in the incident the way it’s being

explained to me that the car lost position and possibly oversped and both of them are

controlled by the S[D]I board. So, more likely than not that I feel that it had

something to do with the incident.” According to Freeman, an elevator that is

properly maintained would run for twenty-five or thirty years, “SDI boards don’t

normally go out[,]” the SDI board should “go out once to twice in the lifetime of the

elevator[,]” and “I think there’s a bigger issue here beside just the SDI board.” 14 According to Freeman, Schindler should have investigated the incident regardless of

whether Ceasar was injured and because they did not, the SDI board was replaced

within a few weeks of the incident.

Video Deposition Testimony of Marty Pulliam

The plaintiff played a video excerpt of Marty Pulliam’s deposition testimony

for the jury. Pulliam testified that he worked for Investment Corporation of America

(ICA), which is an investor in 904 Hotel Operating LLC (904), and 904 operates the

Elegante. According to Pulliam, 904 and the Elegante relied on Schindler to take

care of the maintenance and operations of the elevators, including matters relating

to the function or malfunction of the elevators, preventive or routine mechanical

maintenance, and safety inspections.

Pulliam identified the contract for preventive maintenance between Schindler

and the Elegante, which was entered into on June 28, 2006, and was the same

contract between the parties at the time of his testimony. The contract states that

Schindler’s preventive maintenance service includes:

[] Our preventive maintenance program performed in accordance with a maintenance schedule specific to your equipment[;] [] Examine, lubricate, adjust, and repair/replace covered components[;] [] Prompt callback coverage[;] [] Safety testing[; and] [] Customer friendly and responsive communications[.]

15 Pulliam also agreed that one provision of the contract required Schindler to do annual

safety testing on the geared elevators and every five years on the fully-loaded geared

elevators.

Pulliam agreed that the service ticket for June 28, 2017, showed that Elevator

No. 2 was stuck on the eighth floor and that a blown fuse was replaced when

Schindler came out. Pulliam agreed that for June, July, and August of 2017, there

were numerous Schindler service tickets for the Elegante elevators, including three

for problems with the doors not opening, complaints about door issues on two of the

elevators within ten days of the incident, and a service call three days after work was

done to replace SDI boards and a door operator. Pulliam was not aware of any fact

that Ceasar did anything to cause the elevator to malfunction or failed to use ordinary

care when he was on the elevator. Pulliam also agreed that Ceasar reported neck and

back pain on the day of the incident.

Testimony of James Hoover

The plaintiff then called James Hoover as an adverse witness. James Hoover

testified that he had worked for Schindler for the past thirty-five years, and he had

worked in the elevator industry for forty-nine years. He had also worked for Otis,

Dover, and Houston Elevator. Hoover agreed he was the Schindler account

representative for the Elegante account and that the Elegante had been in his area of

responsibility from the time the contract began.

16 According to Hoover, Schindler is the second largest elevator company in the

world, and they manufacture elevators and service and maintain elevators.

Schindler’s preventive maintenance on elevators includes “machine maintenance to

cleaning the pits, car tops, checking safety switches[,]” oil and lubrication, plus

annual or five-year full-load tests and that Schindler has a written manual for

preventive maintenance. Hoover testified that the schedule for maintenance is

determined by Schindler, is set according to industry standards, is included in the

“FieldLink materials,” and Schindler does not generally provide the maintenance

schedule to the customer. Hoover testified that the maintenance schedule is

accessible to the field technicians through FieldLink, and they can access it through

their phones. Ceasar’s attorney asked Hoover why Schindler did not produce the

maintenance schedule for the elevator in question, Hoover said he did not know, and

the plaintiff’s attorney asked Hoover why Schindler would say that maintenance

procedures documents do not exist. Hoover responded that he “did not know.”

According to Hoover, there is a Service Delivery Manual that is one of the manuals

that the technicians can access through their phones, and he agreed that the manual

refers to the Elevator Industry Field Employee Safety Handbook and Schindler’s

safety policies.

Hoover testified he was not present for speed testing on Elevator No. 2 in the

days following Ceasar’s incident. Hoover further testified that he looked through a

17 year’s worth of records for the Elegante and the only terminal velocity speed testing

he found was for August 16, 2017. Hoover testified that Schindler did annual safety

testing on the geared elevators prior to Ceasar’s incident, and there was an unloaded

geared safety test after his deposition in June 2018. Hoover did not dispute that in

his deposition, he testified that Schindler did not do any safety testing except in

October 2016. According to Hoover, Schindler was fully compliant with State of

Texas requirements before the incident. He testified that annual testing was done on

October 11, 2016, and the next annual testing would have been due on October 11,

2017, but it was delayed until April of 2018 due to Hurricane Harvey. Five-year full-

load testing was done in 2013, and the next five-year testing was due in 2018, but

that date was reset by the State until 2019 based on when the last annual test was

performed. Hoover believed that Schindler had records going back five years.

According to Hoover, when the incident occurred in August 2017, neither he

nor anyone at Schindler investigated why it occurred nor did they do a “root cause

analysis,” and Schindler was never told that anyone was hurt in the incident until the

lawsuit was filed. Hoover testified “[t]o us, it was just a call that was -- the elevator

was broke[n]. It was not anything that we would dig into to find out.” For that reason,

after the incident, “[t]here was nothing to check[.] The elevator had been running

fine since that point.” When asked about the four service calls in the two-months

prior to the incident, Hoover responded that he did not believe that was excessive.

18 Nonetheless, Hoover also agreed that on August 13, 2017, the elevator Ceasar was

on was malfunctioning, that people should not get stuck in elevators, and that if an

elevator is working properly, it should not come to an abrupt stop. He also testified

that the reason the fire department had to open the door on August 13th was due to

a “safety feature[]” and when an entrapment occurs on an elevator and the elevator

stops some distance from floor level, State code requires that the doors should not

be opened except from the outside to prevent passengers from opening the door

where it might be unsafe to exit the elevator car. Hoover testified that it is possible

that an SDI board could need to be changed out only three months after the previous

one was installed because the SDI board could have been a faulty board from the

manufacturer or from environmental events, such as water. According to Hoover,

the SDI boards in the Elegante were first-generation boards manufactured by

Elevator Controls, and possibly the reason an SDI board had to be replaced three

months after the last one was installed was because it was a first-generation board.

Testimony of Michael Prudhomme

The plaintiff then called Michael Prudhomme as an adverse witness.

Prudhomme testified that he is a corporate representative for Schindler. He is also

an elevator repair technician for Schindler, and he has worked for Schindler for more

than three decades, and he has worked in the elevator industry for about forty years.

According to Prudhomme, “elevators trap people every day. I mean, it happens. You

19 know, that’s the way it is[,]” and he does not blame passengers for being scared

when that happens. Prudhomme agreed that proper maintenance of an elevator

makes it safer. He also agreed that, if an elevator is running properly, it should never

go past the floor where it is supposed to stop. Prudhomme testified that “FieldLink”

is an application that provides information about service calls, and a technician can

then enter information on their company provided cell phone about service provided

through FieldLink.

According to Prudhomme, whenever there is a problem with an elevator the

Elegante would have a number that they could call to contact Schindler and then it

would generate an entry into FieldLink for a Schindler repair person. For example,

Plaintiff’s Exhibit 10 showed Marcus who worked in maintenance for the Elegante

had called to report a problem, but if it is an “entrapment” call they would call

Prudhomme personally.

Prudhomme testified that he received a call, and he personally went to the

Elegante immediately after being notified of the incident and when he arrived he

found the elevator stopped “on the 9th floor with the doors open[,]” and he

understood the firefighters had opened the doors and left them open. According to

Prudhomme, there are many reasons an elevator could stop, including a passenger

leaning against the elevator door. Prudhomme did not know whether the elevator

20 malfunctioned on August 13, 2017. Prudhomme also agreed that Schindler was in

control of doing the maintenance on all the elevators at the Elegante.

The plaintiff’s attorney cross-examined Prudhomme about eight service calls

between August 13, 2016, and April 28, 2017, for Elevator No. 2. The service calls

included complaints about being stuck on or between floors, the doors not opening

properly, or what was described as “misleveling.” According to Prudhomme, the

Elegante elevators are about forty years old, they “never stop running[,]” and

“[y]ou’re gonna have problems…it’s just the nature of what it is.”

Prudhomme testified that he had been trapped in an elevator before and gotten

people out of elevators “lots of times[,]” but in his entire career he had never seen

anyone hurt from such events. Prudhomme did not know if Ceasar was injured or

what type of injuries Ceasar had, and Ceasar was out of the elevator by the time he

arrived at the Elegante. Prudhomme testified that if he had known there was an injury

reported, he would have called a supervisor, who likely would have said to turn the

elevator off and return the next day to work on it. When cross-examined about

whether Schindler did a “formal investigation” of the incident, Prudhomme testified

as follows:

Q. Okay. You will agree with me that despite the fact that -- that Schindler -- or despite the fact that a fire department had to release a passenger in an elevator that Schindler maintains that was nine stories above the ground, Schindler conducted no formal investigation of this incident. True?

21 A. Well, I investigated the reason why it was broke[n] and got it running and ran it but --

Q. And you don’t know why it was broken, do you?

A. Well, yeah, I know it says right there adjusted interlock, repaired, and return to service.

Q. But let me ask you this: You don’t know what the fault code said sitting here today, do you?

A. I didn’t have to look at the fault codes.

Q. Sir, my question is: You don’t know what the fault code said sitting here today, do you?

A. It wasn’t a fault, sir. I had to reset the I/O board. That’s all I had to do.

Q. Sir, is it your testimony in front of the jury that it wasn’t a fault?

A. Sir, all I said -- I don't know whether you’re trying to cross me up. I said I had to reset the I/O board to get the car able to run. Jump out the final limit. I put it on independent service -- well, test, rather. Run it up and down the hoistway, I don’t know, five or ten trips. Then went down there and rode the car. Found no problem. Return to service. Left. Well, got ticket signed and left.

....

Q. All right. I already asked you was an investigation done. Was a root cause analysis done?

A. Root cause analysis was I found that the door lock had been clipped. I think it was the 8th or the 9th floor. I moved the drive block, adjusted the drive block because when I was on top the car you run on inspection to see that the clutch was hitting that block. That was the reason that it probably clipped the lock, had the car loss or whatever. That’s what I had to do to get it to run. I didn’t have any faults on the SDI board. If

22 the SDI board was faulted out, you would have to work on it; but I did not have to work on that.

Q. Sir, when did you -- when did you develop this specific memory of what you did to fix it that night?

A. Well, I mean, it’s common knowledge if that’s what the call was is what you have to do to get the elevator to run.

Q. Is a fault code created?

A. I mean, it could be one created; but you’d have to go into the computer to find it.

Q. Did you go to the computer to see if a fault code –

A. I didn’t --

Q. -- was created?

A. I didn’t have to. It has an ANSI reset button on it. All I had to do is press the button to reset.

Q. Sir, I know. And when you reset it, it clears the fault codes, doesn’t it?

A. No, it does not.

Q. Well, is the fault code still there where we can see it?

A. Well, it probably was there then; but it rolls off after each fault comes.

Q. You would agree with me a fault code was created, and it’s probably rolled off now because it wasn’t preserved. Yes?

A. The only fault it would have had that it was on the final limit, the switch was open, or it clipped the door lock. That would be it. 23 ....

Q. What are you looking at it on so the jury understands? What do you see the fault code on, a screen?

A. It has -- it has a small screen and it has diodes below that. That’s little lights. You’ll have lights flashing. Maybe it’s 2, 3, 4, 8. Then you have a chart that tells you what 2, 3, 4, 8 is, you know; and it tells you what that fault is. And if that’s not good enough, you can -- you’ve got DIP switches you can move in order to get into faults and you look at faults. But on this night, this elevator, it was above the floor so it was on what you call a final limit. It’s a stopping switch. So, you have to -- the safety circuit was open. So, you have to jump that switch out to get the car to level back into the floor. Put it on test. You run the car. Top to bottom, top to bottom. You know, after it ran five or ten trips, go down, get on top of it. Ride the hatch and look and see what the problem was. I [saw] a clutch hitting the interlock. And that’s what it says on there. I adjusted the interlock. Put the car back on automatic and rode the car, left it in service, got a ticket signed, talked to the lady at the front desk, and left.

Q. Is this all specific memory that you’ve had since the deposition?

A. Well, when you showed me the ticket that says this is what I did, yes. You have to remember that’s over a year ago. I take lots of calls. I mean, I can’t remember everything.

Q. Sir, the deposition -- the service call was shown to you in your deposition, as well, wasn’t it?

A. But it says right there. What can I say I didn’t do anything when it says I worked on the interlock. I don’t understand what you’re trying to say.

Prudhomme denied that he deleted fault codes, which would require going

into the microprocessor, and he testified that service technicians ordinarily do not do

that unless the elevator will not run at all. Prudhomme testified that the SDI board

24 has a reset button, and a reset is necessary to make the elevator operational again in

some cases, but resetting a fault is not the same as “deleting a fault[.]” Prudhomme

explained that there could have been a fault code created by this incident, but in

order to find the code it would require going into the microprocessor. If a fault code

was created, he believed in this case it would have said “safety circuit open.”

According to Prudhomme, about seventy percent of calls on elevators are

because of issues with doors and that “[n]ormally all elevators” have problems

getting stuck between floors. In Prudhomme’s opinion, the service tickets for the

months prior to the incident did not suggest Schindler should have had prior notice

of any incident similar to Ceasar’s because they concerned what Prudhomme

believed were “door problems or fuses blowing.”

Testimony of Dennis Pellerin

Dennis Pellerin, a firefighter for the City of Beaumont, testified that on August

13, 2017, he was captain for the day, and Plaintiff’s Exhibit 24 was his report from

that day. Pellerin testified that his crew responded immediately after getting a call

that a person was stuck in an elevator at the Elegante about 4:50 p.m. that day, and

the firefighters arrived at about 4:55 p.m. Pellerin did not know how long Ceasar

had been in the elevator. Pellerin testified that, upon arrival, they checked with the

desk clerk to find out where the person was stuck in the elevator, they rode another

elevator to the eighth floor, and they used an elevator key to open the doors to the

25 elevator in question. According to Pellerin, before using the key, they talked to

Ceasar through the doors to let him know they were going to open the doors, and

Pellerin testified that Ceasar answered their questions. Pellerin recalled that when

the firefighters opened the door, Ceasar was standing with a pizza box in his hand,

and he did not say anything to them that would indicate he was injured or hurt.

Pellerin testified that by 5:13 p.m., the event was “cleared” and the firefighters then

rode the elevator downstairs. Pellerin testified that he did not observe any obvious

signs of injury on Ceasar, but the firefighters asked Ceasar if he needed any further

assistance and offered him medical attention when he was released from the elevator,

but Ceasar did not want any medical assistance. Pellerin did not recall the elevator

not being level with the floor.

Plaintiff’s Neurosurgeon Dr. William Brennan

Dr. William Brennan testified that he is a board-certified neurosurgeon with a

practice in Lafayette, and he does spinal surgery. He testified that he has performed

thousands of lumbar surgeries, like the surgery he performed on Darren Ceasar, as

well as thousands of neck surgeries. Brennan testified that he is Ceasar’s current

treating neurosurgeon, and he last saw Ceasar in September 2018.

Brennan testified that he first examined Ceasar on October 12, 2017, and at

that time Ceasar’s chief complaint was neck pain, low back and left leg pain,

insomnia, and anxiety, and Ceasar reported he had previously experienced similar

26 symptoms. According to Brennan, Ceasar reported that on August 13, 2017, he was

in an elevator that accelerated past the floor he selected, the elevator went “all the

way to the ceiling of the building and crashed to a stop at the top[,]” and Ceasar

experienced a “sudden, painful jarring[]” and panic when he attempted to call for

help and escape. In his initial examination of Ceasar, Brennan found Ceasar had

twenty-five to fifty percent normal range of motion of the head and neck, diminished

sensation on the outside of his left leg, and “positive straight leg raising[,]” or pain

in attempting to straighten his left leg that was unlikely to be an orthopedic problem.

Dr. Brennan described Ceasar’s condition as “elevator induced trauma with anxiety;

vivid unpleasant dreams of reliving the incident; neck pain; low back pain; left lower

extremity, lumbar radiculopathy which is shooting pain in the leg.”

According to Dr. Brennan, Ceasar was “very open” about the fact that he had

been evaluated for back problems in the past, but Ceasar told Dr. Brennan he had

not been under anyone’s care for about a year when he saw Dr. Brennan. Brennan

testified that he referred Ceasar to a psychiatrist for post-traumatic stress disorder

and ordered an MRI scan of the cervical and lumbar spine. Brennan also prescribed

hydrocodone, Ativan for anxiety, and some stomach medicine for heartburn.

Dr. Brennan agreed that an MRI was performed on December 1, 2017, and

when he compared it to a previous scan, he concluded the more recent scan was

“more abnormal.” Ceasar’s patient records state that his lumbar MRI scan showed a

27 “small focal disk herniation on the left at L5-S1.” Dr. Brennan testified that Ceasar

had back pain and an “aging disc[]” prior to the incident, and when a person has such

an issue, they are more susceptible to being injured by unexpected events because a

physical event such as being unexpectedly jarred in an elevator “will traumatize the

weakest link before it will traumatize anything else.” Based on the MRI of Ceasar’s

neck, Dr. Brennan concluded Ceasar also had a left-sided C6-7 disc herniation in his

neck.

When Brennan saw Ceasar in January 2018, Ceasar was reporting low back

pain and left leg pain that was worsening. At that point, Dr. Brennan ordered six

weeks of physical therapy because it was a more conservative option than surgery,

but he wrote in the patient records that “I feel it is more likely than not that in the

next 5 years he will choose both the lumbar and cervical surgery[.]” Dr. Brennan

agreed that in March 2018, the physical therapy facility wrote that Ceasar had been

compliant with treatment but continued to have back and neck pain “with most

activity.” In June 2018, Dr. Brennan discussed surgery options, and Ceasar agreed

to proceed with the back surgery. According to Brennan, two weeks after L5-S1

lumbar disc surgery, Ceasar had some improvement with his back and left leg, but

he still had a slight limp. Brennan testified that five weeks after surgery, Ceasar

continued to improve and no longer had any problem with straight leg raising.

Brennan testified that at about seven weeks after surgery, Ceasar’s back and left leg

28 pain had improved, but he was experiencing new pain in his back and numbness in

his leg. Dr. Brennan believed that Ceasar’s neck pain would also persist and Ceasar

would probably need neck surgery in the future.

Dr. Brennan agreed that he treated Ceasar for about a year, he first tried

conservative treatment measures such as pain management and physical therapy, and

ultimately performed back surgery, but Ceasar is likely to have intermittent pain and

discomfort for the rest of his life and Ceasar will need medication, medical care, and

more surgeries based on his injury. Brennan agreed that based on reasonable medical

probability he believed that all the care and treatment he gave to Ceasar was caused

by and needed because of an injury sustained in the elevator incident in August 2017.

On cross-examination, Dr. Brennan agreed that he believed that Ceasar’s

problems started after the elevator incident based on what Ceasar told him. Brennan

did not recall that Ceasar had told him anything about his prior back pain, that he

did not know about a previous MRI and a lumbar herniated disc in 2013 nor did he

recall anything about Ceasar being treated for back and neck pain in 2014. Brennan

did not know whether his records indicated that Ceasar complained of pain and

suffering, mental anguish, medical expenses, or loss of enjoyment of life prior to the

elevator incident. But Brennan was aware that Ceasar had gone to Opelousas

General Hospital four times in 2016 for similar problems with his back, and he

testified that his patient records for Ceasar include a notation that he had been

29 evaluated for low back problems in the past, had MRI imaging, but Ceasar told him

he had not had medical care for low back problems for a year or two before the

elevator incident.

Testimony of Psychiatrist, Dr. Patrick Hayes

Dr. Patrick Hayes, a board-certified psychiatrist, testified that PTSD is a stress

response that occurs when a person gets “stuck in fight or flight” after something

bad happens, and it could result from being trapped in a confined space such as an

elevator. Hayes testified that Ceasar was his patient, he was referred to him by Dr.

Brennan, Hayes last treated Ceasar about two weeks prior to trial, and he planned to

continue treating him until he got better. Hayes testified that he first saw Ceasar on

December 15, 2017, and he and his staff have seen Ceasar for about fifteen months.

Based on his assessment of Ceasar, which included objective psychometric

testing, he diagnosed Ceasar with PTSD. According to Hayes, Ceasar had been fully

compliant with all his appointments, which was significant to Hayes because it lent

credibility to Ceasar’s report of distress, and that people who are compliant tend to

be genuine. Hayes testified that Ceasar met the diagnostic criteria, including

exposure to trauma, intrusive thoughts, nightmares, psychological arousal, and

discomfort upon being forced to talk about something uncomfortable. Hayes

believed that Ceasar had achieved about a ten percent improvement in his symptoms

but that he would likely need care for about ten more years and that relapses were

30 probable. Hayes testified that, to a reasonable degree of medical probability,

Ceasar’s PTSD resulted from “the trauma of injury, of being scared and trapped in

the elevator and then being mocked or his perception of being mocked and laughed

at afterwards.” According to Hayes, he saw no signs of malingering in Ceasar or that

he was “embellishing his symptoms.”

Testimony of Life Care Planner, Dr. Todd Cowen

Dr. Todd Cowen testified that he is a physician in the field of physical

medicine, rehabilitation, and pain management, he has been in practice for almost

twenty-five years, and he is board-certified in physical medicine and rehabilitation

and in pain management. Cowen also testified that he is a certified life care planner,

which involves identifying a person’s condition, injury, or diagnoses, and mapping

out the medical care the person is likely to need and what it will cost. Cowen agreed

that over the years, he has treated thousands of patients with back and neck injuries

and that his objective is to help his patients become as mobile and pain-free as

possible. Cowen testified that many of his patients have orthopedic musculoskeletal

spine injuries as well as PTSD, anxiety, and depression that accompanies their

chronic pain or injury.

Cowen agreed that he examined Ceasar, he reviewed Ceasar’s medical

records, he talked with Drs. Brennan and Hayes and reviewed their treatment notes.

Cowen testified that, in addition to exhibiting symptoms of PTSD, Ceasar had “both

31 neck and back pain. Back pain was radiating primarily down the left leg. He also had

pain radiating between his shoulder blades, had some restricted range of motion in

his lumbar and cervical spine, back and neck pain.” Cowen agreed that he had

reviewed the billing records for Ceasar’s treatment, and he believed the charges were

causally related to the elevator incident and were reasonable, usual, and customary

for the region where Ceasar lives. Plaintiff’s Exhibit 108 was admitted into evidence

as a medical billing summary, and Cowen testified that the exhibit showed a total of

$89,754.82 in past medical bills.

Cowen testified that the life care plan he developed for Ceasar was based on

a life span of an additional thirty-three years, it included doctors’ visits, injections,

diagnostic tests such as MRI’s and X-rays, medications, physical therapy, nursing

care, injections, surgical procedures, and essential services, and applying usual and

customary costs, and the total cost estimate of future care was $759,731.59. Cowen

testified that, after correcting for procedures that have already occurred and changes

in medications, the adjusted total for the life care plan was $781,085. Cowen testified

that Dr. Brennan had recommended Ceasar undergo a cervical fusion within the next

few years, and Cowen used Dr. Brennan’s quote for the costs associated with that

procedure. Cowen also estimated that Ceasar would require another fusion at about

age 68 because “whenever one segment of the spine is fused, the segment above or

below will take more wear and tear and will likely need a fusion down the road.”

32 Cowen also testified that it was possible Ceasar would require posterior lumbar

fusion at age 60, but he did not include a cost for that because it did not rise to the

level of probable.

Cowen agreed that all the medical care included in his life care plan was

caused by the August 2017 elevator incident, to a reasonable degree of medical

probability, and was based on what Ceasar told him as well as the medical records

from other physicians. On cross-examination, Cowen agreed he had looked at

Ceasar’s records prior to the accident, from 2010 to 2016.

Testimony of Defense Medical Expert, Dr. Warren Parker

The defendant called Dr. Warren Parker as an expert witness. Dr. Parker

testified that he is a board-certified neurosurgeon and has been in practice for about

forty-five years. Parker stated that, after medical school, he served for two years in

the Army, including a year as a flight surgeon investigating aircraft accident and

performing flight physicals, and he also was President George H.W. Bush’s

physician and neurosurgeon for a time. Parker testified that he was asked to review

records, X-rays, and MRI scans for Darren Ceasar, including records for about eight

or nine years, and in his medical opinion, Ceasar did not sustain an injury in the

August 13, 2017 incident:

Every doctor that Mr. Ceasar saw, his examination was normal. The X- rays or MRI scans showed this normal wear and tear or arthritic changes that were present long before this incident. His complaints are all subjective[,] which means that the doctors or anyone else could not 33 confirm them….So, the only way we know Mr. Ceasar has back and neck pain is because he tells us he does basically. And that pain will go away when he tells us it’s gone away. .... My reviewing the medical records, personally looking at all of the X- rays, MRI scans that were provided me, and there was no evidence of any injury, no dislocation, no fracture, no swelling of any injury, no indication of an injury at all.

Parker testified that prior to Ceasar’s July 2018 surgery, there was no ruptured disc,

and there was a bone spur that had developed over the preceding years, and the

surgery was not necessary. Parker saw no difference between Ceasar’s 2016 and

2018 MRI scans. Based on his review of Ceasar’s medical records, Parker concluded

that Ceasar had three or four injuries to his spine, including a car accident in 2014.

Parker agreed he reviewed Dr. Cowen’s life care plan for Ceasar, and he testified

that Cowen, as a physical medicine and rehabilitation physician, was not qualified

to read MRI and radiographical studies.

On cross-examination, Parker agreed that Ceasar was not his patient, he was

not his treating physician, and he had never examined Ceasar. Parker also testified

that he was being paid about $16,500 for his work for Schindler in reviewing the

medical records and testifying. Parker also agreed he had not met Dr. Cowen and

did not know the details of his education and professional background.

Testimony of Defendant’s Elevator Expert, Jon Halpern

Jon Halpern testified that he is an elevator consultant and a licensed consulting

engineer and that he was asked to look at the records and give an opinion about 34 “what occurred in this matter and what didn’t occur in this matter and whether or not

anything the defendants did or failed to do caused the accident.” Halpern testified

that he had been in the elevator business about thirty-nine years, and he had had his

own company for about eighteen years. Halpern stated he had previously worked for

Millar Elevator Industries, which was purchased by Westinghouse Elevator, and

which Schindler later purchased, and he was with Schindler from 1990 to about

2001. Halpern agreed he was familiar with the elevator controller involved in this

case, an Elevator Controls Model B900. Halpern testified that he inspected Elevator

No. 2 at the Elegante and reviewed work tickets, inspection records, deposition

testimony, and manuals for the B900 controller.

Halpern testified that there is a controller on the left side of Elevator No. 2,

and on the right side there is an overspeed governor that acts as an independent

monitor of speed that will trip if the elevator “overspeeds” and will need to be

manually reset. If the elevator car goes past the top floor, a counterweight goes down

and compresses a buffer at the bottom of the shaft, which acts as a hydraulic brake

to stop the car in a safe manner. At the top are “final limit” switches, and if the car

goes past the final limit, the car cannot run again or go back into service unless

someone takes off the final limits by bypassing electrical switches.

Based on his review of this case, Halpern concluded that on August 13, 2017,

there was nothing in the records to indicate the elevator did not experience a safe

35 stop, and “it’s just not possible that [the elevator] struck the buffer. It’s not possible

that it went far into the overhead and made this crashing stop” like Ceasar reported.

Halpern believed that the elevator did not make “a completely level stop” and went

about three inches beyond the door zone and the doors could not open. According to

Halpern, Elevator No. 2 has an electrical door zone of plus or minus three inches, so

that if the car is outside that zone, the doors will not open to prevent passengers from

tripping. In Halpern’s opinion, Elevator No. 2 had been tested properly prior to the

incident.

After reviewing the service tickets in the months preceding the incident,

Halpern concluded that although there were records of the certain shutdowns and the

elevator being stuck, “there was no evidence of the elevator ever going into the

overhead or past the terminal limits and making any kind of terminal limit stop or

what I would call buffer stop in any way on the elevator.” According to Halpern,

issues with doors not opening or closing were not related to an unscheduled stop

because the door operator does not cause the car to stop and only operates when the

car is stopped. Halpern also did not believe the records in this case reflected prior

notice of a safety issue that should have led Schindler to take the elevator out of

service.

Halpern testified that it is not possible to erase fault codes, and old fault codes

will “fall[] out[]” over time as new fault codes come in. According to Halpern,

36 resetting faults is a different matter, and if a fault is preventing an elevator from

running, a mechanic will reset the fault. Halpern also testified that Schindler acted

as a reasonably, prudent elevator maintenance company in maintaining Elevator No.

2, they performed maintenance on a regular and systematic basis, and there were no

safety problems that would require taking the elevator out of service. According to

Halpern, a properly maintained elevator can malfunction, and a malfunction does

not mean the elevator maintenance company is negligent.

On cross-examination, Halpern agreed that he wrote in his report “the exact

cause of the subject incident is unknown.” Halpern also agreed that he wrote in his

report that the problem could have been caused by the SDI board or power surges.

Halpern also agreed that his report stated, “it is undisputed that the elevator ran past

the up normal and final limit and likely contacted the buffer[]” and he had changed

his opinion about this. On redirect, Halpern agreed that malfunctions can occur on

elevators for reasons that cannot be determined even though the elevator is properly

maintained.

Testimony of Elizabeth Pearson

Elizabeth Pearson testified that she is the tavern manager for the Elegante and

on August 13, 2017, she was the manager on duty for the hotel. Pearson testified that

when she saw a fire truck at the hotel, she asked at the front desk what happened,

and learned a man who was stuck in an elevator on the ninth floor had called 911.

37 Pearson recalled seeing Ceasar after he was let out of the elevator when he went to

the front desk to request a different room. According to Pearson, Ceasar did not

appear injured, nor did he say he was injured, but he looked “[a] little rattled[.]”

Pearson testified she saw Ceasar again about an hour later after the front desk told

her that Ceasar wanted to speak to a member of management, and Ceasar told her he

was checking out and going to go see a doctor. Pearson also testified she saw

Ceasar’s Facebook Live video, and she did not recall that Ceasar had said he was

injured in the video. Pearson did recall that Ceasar appeared agitated, and he kicked

the elevator door and tried to open it.

According to Pearson, when a person is injured at the Elegante, the hotel takes

a statement from the person and sends it to the general manager, who forwards the

statement to the corporate office. Pearson testified that she obtained a written

statement from Ceasar, she signed and dated it, she called her manager at home, and

she gave Ceasar the manager’s business card, and she did not notify Schindler.

Pearson did not know of any instances in the past where Elevator No. 2 had made

an unscheduled stop or passengers had been injured. On cross-examination, Pearson

agreed that Ceasar had written in his statement that he was feeling pain in his neck

38 Testimony of Logan Conner

Logan Conner testified that he was one of the firefighters on the scene and

Dennis Pellerin was the captain. Conner testified that when the firefighters arrived,

they were told which elevator’s doors would not open, he retrieved a key from the

chief’s car, and they used the key to open the elevator door. Conner recalled that the

elevator was even with the floor “because we were on the first floor.” According to

Conner, Ceasar walked out of the elevator with a pizza. Conner testified that Pellerin

asked Ceasar if he was okay, Ceasar was eager to return to his room, and Pellerin

told Ceasar he needed to get information from him. According to Conner, Ceasar

had no outward signs of injury and when asked how he was, Ceasar replied “I’m

good[,]” and Conner thought there was no reason not to take Ceasar at his word. On

cross-examination, Conner testified that he did not recall that the elevator was stuck

on the ninth floor, and he agreed he did not really remember the day of the incident.

Jury Verdict

After trial, the jury returned a 10-2 non-unanimous verdict. The jury answered

“yes” to the question whether negligence by Schindler caused the elevator incident

on August 13, 2017. The jury did not find gross negligence by Schindler. The jury

awarded a total of $841,754.82 in damages—$89,754.82 for past medical expenses,

$150,000 for future medical expenses, $200,000 for past physical pain and mental

anguish, $250,000 for future physical pain and mental anguish, $75,000 for past

39 physical impairment, $75,000 for future physical impairment, $1,000 for past

disfigurement, and $1,000 for future disfigurement.

Issues

Appellant raises the following issues on appeal.

1. “The court erred by excluding evidence that, before the elevator incident, Ceasar applied for and was denied Social Security disability benefits for severe back and neck injuries.”

2. “The court erred by excluding evidence of a prior lawsuit in which Ceasar claimed that a 2014 auto accident injured his back and neck.”

3. “The court erred by forcing Schindler and its trial team to engage in document production during the trial, after the discovery deadline.”

4. “The court erred by imposing sanctions on Schindler for alleged pretrial discovery abuse.”

5. “The court erred in instructing the jury on res ipsa loquitur.”

6. “The court erred by refusing to instruct the jury on Ceasar’s intentional spoilation of evidence.”

7. “The court erred by denying Schindler’s motion for a mistrial.”

Appellant asks this Court to vacate the final judgment, remand for a new trial,

and reverse the post-trial order imposing sanctions on Schindler.

Exclusion of Evidence

Appellant’s first two issues pertain to the exclusion of certain evidence. Issue

one concerns the exclusion of evidence that Ceasar had applied for Social Security

40 Disability benefits (SSD) and that the claim was denied. Issue two concerns the

exclusion of evidence of a 2014 lawsuit Ceasar filed after a car accident.

Standard of Review

Evidentiary rulings are committed to the trial court’s sound discretion. U-Haul

Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012) (citing Bay Area Healthcare

Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007) (per curiam)). A trial court

abuses its discretion when it acts without regard for guiding rules or principles. Id.

(citing Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998)).

“The trial court has extensive discretion in evidentiary rulings, and we will uphold

decisions within the zone of reasonable disagreement.” Diamond Offshore Servs.

Ltd. v. Williams, 542 S.W.3d 539, 545 (Tex. 2018). Even if the trial court abused its

discretion in ruling on the admission or exclusion of certain evidence, reversal is

only appropriate if the error was harmful—that is, it probably resulted in an improper

judgment. See Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 144 (Tex.

2004); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995); see also

Tex. R. App. P. 44.1, 61.1. We will uphold a trial court’s ruling on the admission of

evidence if there is any legitimate basis for the ruling. See Primoris Energy Servs.

Corp. v. Myers, 569 S.W.3d 745, 762 (Tex. App.—Houston [1st Dist.] 2018, no pet.)

(citing Hooper v. Chittaluru, 222 S.W.3d 103, 107 (Tex. App.—Houston [14th

Dist.] 2006, pet. denied) (op. on reh’g)); see also Malone, 972 S.W.2d at 43 (“An

41 appellate court must uphold the trial court’s evidentiary ruling if there is any

legitimate basis for the ruling.”). A successful challenge to evidentiary rulings

usually requires the complaining party to show that the judgment turns on the

evidence excluded or admitted. Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617

(Tex. 2000) (citing Alvarado, 897 S.W.2d at 754).

“Relevant evidence is presumed to be admissible.” JBS Carriers, Inc. v.

Washington, 564 S.W.3d 830, 836 (Tex. 2018) (citing Tex. R. Evid. 402). Evidence

that has no relationship to any issue in the case is not admissible under Texas Rules

of Evidence 401 and 402. See Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629

(Tex. 2002) (citing Tex. R. Evid. 401, 402, 702; E.I. du Pont de Nemours & Co. v.

Robinson, 923 S.W.2d 549, 556 (Tex. 1995)). Relevant evidence may nonetheless

be excluded if its probative value is substantially outweighed by a danger of unfair

prejudice, confusion of the issues, or misleading the jury. See JBS Carriers, Inc.,

564 S.W.3d at 836 (citing Tex. R. Evid. 403).

Social Security Disability (SSD)

Appellant argues that the SSD evidence was “highly relevant to Ceasar’s

alleged damages and his credibility[]”—that the SSD evidence could have convinced

the jury that Ceasar’s back and neck injuries were preexisting conditions and

originated prior to the elevator incident and that the jury could have concluded that

Ceasar was not truthful in claiming he was injured in the elevator incident. Appellant

42 denies that the SSD evidence was cumulative but rather it was “unique[,]” and that

because Ceasar was denied SSD benefits, the jury could have concluded Ceasar had

a history of not being truthful about his alleged injuries. According to Appellant, the

trial court erred in excluding the SSD evidence based on the collateral source rule

because the denied benefits application was not a collateral source of payments to

Ceasar for injuries that he allegedly sustained in the elevator incident.

Prior to trial, Ceasar filed a motion in limine asking the trial court to exclude

evidence that he was receiving benefits from a collateral source, including disability

benefits. At a hearing on the motions in limine, the trial court stated:

No. 5 deals with collateral benefits or collateral source. I mean, generally the evidence of collateral source is not admissible. .... I’m going to grant No. 5 at least as it pertains to a collateral source. I mean, I think what you may be discussing, I don’t know if that really falls within the purview of No. 5 but by and large the evidence of the medical funding companies, what they do, how they operate, or that they had actually purchased or acquired any of the debts of the plaintiff related to his treatment, that I don’t think is relevant and we shouldn’t get into. If you want to ask him about his physicians and his treatment and the treatment he underwent, I think that’s probably fair game. .... [] If you think there’s something that becomes relevant, if you think it’s something that potentially run afoul of the Motion in Limine, then come forward[].

During its opening statement, Schindler’s counsel stated that “[t]he evidence will

also show that [Ceasar] applied for Social Security Disability benefits” for injuries

allegedly received in 2013. At that time, the court instructed the jury that any

43 reference to Ceasar applying for or receiving governmental assistance or benefits

was “not germane or relevant” and should be disregarded.

The following day, outside the presence of the jury, counsel for Schindler

argued that evidence of Ceasar’s application for SSD did not violate the collateral

source rule because it pertained to a different incident three years prior to the incident

at the Elegante. The court responded that it would have been fine to refer to Ceasar

having made prior statements about injuries he previously received but that a

statement “dealing with an application or seeking benefit on a possible collateral

source…ran afoul of the Court’s motion in limine[.]” Later that day, when cross-

examining Dr. Brennan, counsel for Schindler asked “[a]re you aware, sir, that

totally unrelated to the elevator accident, three years earlier, [Ceasar] applied for SSI

disability?” Outside the presence of the jury, the trial court stated that it had

previously admonished the parties to approach the bench prior to asking about the

application for SSD and that any further disregard of the court’s motion in limine

would be regarded as deliberate and would likely result in sanctions. Counsel for

Schindler again stated that the SSD was three years earlier and was not a collateral

source. The court again instructed the parties not to raise the issue of SSD without

first approaching the bench.

The next day at trial, outside the presence of the jury, plaintiff’s counsel

expressed concern to the trial court that Schindler’s counsel was going to cross-

44 examine Ceasar on his application for SSD. The court explained that the ruling on

the motion in limine was not a ruling on the admissibility of SSD evidence, stated

that its relevance had not been shown, and concluded that, even if admissible, such

evidence was more prejudicial than probative:

The Court is vested with the discretion to make corrective rulings where even though evidence may otherwise be admissible, I can preclude it from being admitted because of violations of other instructions or orders of this court. .... I have yet to see the significance of why the fact that it was made in an application for Social Security Disability benefits is of any importance or relevance whatsoever. .... You have expressed that your intention is to talk about this may have been a preexisting injury, that that’s a portion of your defense and I’m giving you sufficient latitude to be able to do that. The fact that you want to display to the jury that he applied to the government for benefits, I don’t see the significance or the probative value of that. And certainly[,] to the extent that there is any, the fact that somebody would be making an application for benefits on Social Security Disability [that] was denied, any prejudicial effect or negative correlation of that would substantially outweigh the probative value of the fact that the application was going for disability.

The trial court also stated that the purpose of the application was “separate and

distinct” from a statement about an injury made on the SSD application and that “if

there’s a valid dispute about statements that were made in prior years relating to that

injury, I think you could be able to cross-examine that sufficiently…with the

witness.”

45 Schindler argues that the exclusion of SSD evidence was in error and harmful

and probably caused the rendition of an improper judgment because the SSD

evidence could have convinced the jury that (1) the injuries Ceasar claimed resulted

from the elevator incident were preexisting conditions and (2) Ceasar had a history

of not being truthful about his back and neck ailments. The appellate record does not

reflect that Schindler made this second argument—that Ceasar had a history of being

untruthful about injuries—in the trial court, and Schindler has waived error on this

point. See Tex. R. App. P. 33.1.

Schindler did argue in the trial court that the SSD application was admissible

to show Ceasar was previously injured, to rebut Ceasar’s claim that his injury

resulted from the elevator incident, and for impeachment purposes. However,

Schindler made no attempt during trial to offer the specific statements or medical

information contained in the SSD application, and by failing to make an offer of

proof, it has failed to preserve error. See Gunn v. McCoy, 554 S.W.3d 645, 666 (Tex.

2018) (“If a court ruling excludes evidence, a party must preserve error by filing an

offer of proof informing the court of the substance of the excluded evidence. Tex.

R. Evid. 103.”).

While it is possible that statements made in an SSD application and possibly

medical records attached to an SSD application may contain information that could

be relevant to establishing a party’s preexisting condition, we cannot speculate about

46 the contents of Ceasar’s SSD application because Schindler failed to make an offer

of proof. We also note that during the trial, Ceasar testified that he told the hospital

in Port Arthur that he previously had back problems and a herniated disc, which was

reflected in the hospital records admitted into evidence. He also testified that he had

been treated for prior back pain by Dr. Metoyer, and Dr. Metoyer’s records for

Ceasar in 2014, 2015, and 2016 were admitted into evidence. Ceasar also agreed he

had sought treatment at Opelousas Hospital and University Hospital in Lafayette for

back pain. Dr. Brennan testified that Ceasar had been “very open” about having

previously been evaluated for back problems and that Ceasar had back pain and an

“aging disc[]” prior to the elevator incident. When Dr. Brennan compared Ceasar’s

December 2017 MRI with a scan from 2016, he concluded the December 2017 scan

was “more abnormal.” Therefore, exclusion of the SSD application or preventing

Schindler from asking further questions about the SSD application and denial of

benefits did not prevent Schindler from cross-examining the medical witnesses and

Ceasar about the preexisting injuries.

We cannot say that the trial court’s ruling excluding reference to the SSD

application was outside the zone of reasonable disagreement or that the trial court

acted without regard to guiding rules or principles. Additionally, Schindler has not

established the exclusion of such evidence probably resulted in the rendition of an

47 improper judgment. See Waldrip, 380 S.W.3d at 132; Armstrong, 145 S.W.3d at 144.

We overrule Appellant’s first issue.

Evidence of Prior Lawsuits

In a pretrial motion in limine, Ceasar asked the court to exclude evidence of

any previous lawsuits, including lawsuits in 1997, 2002, and 2014, because they

were not relevant and because any probative value would be outweighed by the

prejudicial effect of the evidence. In a pretrial hearing, the court granted the limine

with the following condition:

I essentially kind of look at a 10-year window of relevance. It doesn’t mean that anything outside of ten years is not admissible and not relevant. It just would…need to have a higher showing of relevance to the instant litigation the older the prior lawsuits become. .... []If there is something that is within 10 years, again consistent with the prior ruling that I’ve got. It doesn’t mean that it’s not admissible. It just means that we’ll need to have some sort of a showing of relevance anything outside of 10 years and that might turn on each individual lawsuit. So, one of these if it’s from 2014 obviously in the 10-year rule.

Plaintiff’s counsel argued that evidence of a prior lawsuit was “really prejudicial”

and asked that, prior to introducing evidence of a prior lawsuit, counsel approach the

bench, and the trial court agreed. During a discussion at the bench during trial, the

court stated:

[W]hether or not the plaintiff had initiated legal proceedings or had filed the lawsuit or had to seek legal redress in regards to that purported injury, ultimately, that is not very relevant. I do not necessarily find that to be relevant absent a specific and particularized showing of relevance.

48 According to Appellant, the court erred in excluding evidence of the 2014

lawsuit and such error was harmful because such evidence tended to show that

Ceasar’s back and neck problems were preexisting conditions not caused by the

elevator incident. Appellant also argues that it is “the longstanding general rule” in

Texas that “a defendant may cross-examine a plaintiff regarding previous injuries,

claims, and actions when they are relevant to show that the plaintiff’s present

physical condition is not the result of the injury presently sued for, but was caused

in whole or in part by an earlier or subsequent injury or a preexisting condition[,]”

citing to Farmers Texas County Mutual Insurance Co. v. Pagan, 453 S.W.3d 454,

462 (Tex. App.—Houston [14th Dist.] 2014, no pet.). In Pagan, the Fourteenth

Court explained that testimony about prior injuries, claims and actions would be

relevant to the issue or other plausible causes of the plaintiff’s injuries. See id. But

it would not necessarily mean that it grants “a free ticket to admission of evidence,”

and that evidence may still be excluded as unduly prejudicial under Rule 403. See

id. (quoting Baker v. Dalkon Shield Claimants Tr., 156 F.3d 248, 252 (1st Cir.

1998)).

The trial court ruled during the pretrial and opening statement that the

evidence of the 2014 car accident and lawsuit was inadmissible unless Schindler

approached the bench and made “a specific and particularized showing of

relevance.” Schindler never made any offer of proof regarding the questions,

49 pleadings, or materials it sought to introduce from the 2014 accident and lawsuit,

and thereby failed to preserve error on the exclusion of this evidence. See Tex. R.

Evid. 103; Gunn, 554 S.W.3d at 666. Schindler also failed to establish that exclusion

of the evidence of the 2014 lawsuit probably resulted in the rendition of an improper

judgment. See Waldrip, 380 S.W.3d at 132; Armstrong, 145 S.W.3d at 144.

Accordingly, we overrule Appellant’s second issue.

Production of Documents During Trial

Appellant argues that the trial court erred by forcing Schindler’s trial attorneys

to produce documents during trial. Appellant argues that the burden of locating and

producing client documents during trial was “highly distracting[.]” Appellant also

argues that forcing it to produce materials after trial served “no obvious purpose.”

According to Appellant, plaintiff’s counsel had never filed a motion to compel, and

the disputed documents were not encompassed by plaintiff’s Requests for

Production. Appellant also argues that by forcing Schindler to produce documents

during trial, the trial court violated Rule 190.3, which requires that “[a]ll discovery

must be conducted during the discovery period[.]” See Tex. R. Civ. P. 190.3(b)(1).

We review a trial court’s ruling on discovery matters under an abuse of

discretion standard. See Pape v. Guadalupe-Blanco River Auth., 48 S.W.3d 908, 912

(Tex. App.—Austin 2001, pet. denied). A trial court abuses its discretion when it

renders an arbitrary and unreasonable decision lacking support in the facts or

50 circumstances of the case or when the trial court acts arbitrarily, unreasonably, and

without reference to guiding rules or principles. See Samlowski v. Wooten, 332

S.W.3d 404, 410 (Tex. 2011) (citing Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.

1997); Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996)). A

court may modify a discovery control plan at any time and must do so when the

interest of justice requires. See Tex. R. Civ. P. 190.5.

Plaintiff filed a motion for sanctions during trial, on March 29, 2019. Therein,

Plaintiff represented that it had served Requests for Production of documents

relating to policies and procedures, including:

[RFP No. 13]: All documents related to the safety procedures and instructions related to the Elevator at issue. [RFP No. 29]: All documents that refer, concern, or relate to safety manuals and policies at the Facility. [RFP No. 30]: All documents that concern, refer, or related to any work procedures that were being performed in the facility where the accident occurred on the equipment/line involved in the accident when the Accident occurred. [RFP No. 40]: All documents that refer, concern, or relate to policies, procedures, and/or manuals that detail how you plan for or attempt to mitigate the risk of Accidents and/or releases at the Facility. [RFP No. 66]: Copies of all documents, including policies and instruction manuals which the Defendant provide[s] its employees during the hiring process and/or to contractors hired by you.

Plaintiff also requested work order tickets as follows:

[RFP No. 14]: All documents and/or communications related to the last time someone complained about malfunctioning Elevators at the Facility for the past ten (10) years. [RFP No. 15]: All documents related to the last time Defendants performed repairs on the Elevator that caused the plaintiff[’]s injuries 51 and other elevators located at the Facility where the injury at issue occurred. [RFP No. 16]: All documents related to the maintenance and repairs of the Elevator in question and/or other Elevators located at the Facility for the past ten (10) years. [RFP No. 37]: All documents that refer, concern, or relate to maintenance and work order history, repairs, alterations, inspections, corrections, and improvements on the equipment and/or area involved in the accident for the past ten (10) years. [RFP No. 47]: All documents that concern, refer, or relate to repairs, renovations, changes, or alterations to the area of the Facility where the Accident occurred after the Accident. [RFP No. 73]: All documents concerning any requests to repair, maintain, service, and/or inspections of the Elevator in question. [RFP No. 74]: All invoices, requisitions, logs and other similar documents that concern any repairs, alterations, inspections, corrections and/or improvements to any part [of] the Elevator in question.

The motion stated that “Schindler failed to produce responsive documents.”

Later during the discovery period, on June 28, 2018, Plaintiff deposed James

Hoover, Schindler’s representative for its account with the Elegante. The following

exchange occurred:

Q. How long do y’all keep your work orders and call-outs for?

A. Probably go back to -- probably back to ’07.

Q. Got it. So they’re all just on the computerized system?

A. It’s on computer, yeah. It’s all backed up.

Q. You can kind of just go in and pick the -- the job or pick the location and then pick the dates –

A. Right.

52 Q. -- and be like, hey, I want all the preventive ones, I want all the service calls, and you just print them out?

A. Correct.

Q. I got it. And that’s pretty easy to access, I imagine?

A. Well, they have to request it through us and it has to be approved to go through because there’s too much information there.

Q. I guess I’m -- I’m talking past you. It’s easy for Schindler to access?

A. Well, true, for Schindler to access, correct.

Q. Does Schindler have any policies and procedures that relate to doing your preventative maintenance?

A. Yes.

Q. Are they written?

Q. And those are easily accessible, as well?

Q. And so if we wanted to look at those -- and the reason we look at them in these cases is just to see if what you-all -- your own internal standards are for yourself -- you have those written up?

A. They -- I’m not saying I can release them.

Q. He’s the boss?

A. I’m pushing it over to the lawyer.

Q. But they exist? 53 A. Yes.

Q. And I guess -- I’m not going to talk to you about any of that today because the better way to do it is for me to look at the policies and then see if I have any questions, but for any of these policies that relate to safety inspection, maintenance, you know, even incident investigation, those are all -- you’d look at Schindler’s policies and if your attorney let’s you, then we can look at them?

Q. But those policies do exist, they’re formal policies, you can print them out?

A. That’s correct. Legal will have to tell you if you can do that.

Later that day, Plaintiff’s counsel sent an email to Schindler’s counsel requesting

that Schindler supplement the documents it had produced, including work tickets for

the last ten years and “[a]ll policies and procedures for elevator maintenance and

incident inves[ti]ga[ti]on[.]”

In November 2018, Schindler produced supplemental responses to Plaintiff’s

requests for production. As to requests to produce policies and procedures manuals

and complaints about the Elegante elevators, Schindler responded that it had no

responsive documents and referred Plaintiff to the Elegante. As to the request for

policies and manuals provided to employees upon hire, Schindler responded that the

request was overly broad and irrelevant. As to the requests for work tickets,

Schindler objected that the request was overly broad and produced four months of

service tickets, a Texas Certificate of Compliance, and a TDLR Report of Inspection.

54 Plaintiff’s counsel represented in its motion for sanctions that it relied upon

Schindler’s representation that these documents did not exist and proceeded to trial.

During direct examination of Hoover at trial, when asked whether Schindler had

provided any policy or procedure to teach how to safely maintain the elevators,

Hoover responded “[y]es…There is a manual[]” given to him and the service

technicians, and it was available through the FieldLink app. Hoover also testified

there was a field superintendent operation manual and safety procedures and

instructions. Hoover agreed that Schindler also provided written procedures on how

to do maintenance that were available through FieldLink. The following exchange

occurred:

Q. Do you…have any idea why when those documents were asked for so we could take a look at them that Schindler would say that those documents don’t exist at all?

A. Schindler said they don’t exist?

Q. Yes, sir.

A. Well, our maintenance procedures are there.

Q. They exist, right?

Q. So, you don’t have any idea why Schindler would say those procedures don’t exist, do you?

A. No. 55 Q. Those are things you look at and your guys look at all the time?

Q. You would agree with me that it’s important for all of us to be able to see those documents, right?

Q. It’s something, though, you think that you can get your hands on or you can help your lawyers look for, right?

The following day, in a hearing outside the presence of the jury, Schindler’s

counsel stated, “if we didn’t produce something and there is an oops, we’ll take care

of it[]” and that Plaintiff’s RFPs were “accidentally misread[.]” The trial court

stated:

Obviously if there were corporate documents and materials pertaining to how an employee is to conduct certain maintenance or certain work, that would be, of course, very relevant to determine whether or not the technician in this particular case had conducted themselves consistent with internal company guidelines and policy or had deviated from those policies. Because of the nature of those materials, I instructed the parties to make the best effort to produce them to the other side so that the witnesses could be properly questioned as to those materials. .... [M]y understanding is those materials still have not been produced.

Schindler objected that discovery was closed, and Plaintiff could not ask for

additional documents. The trial court responded as follows:

I’m allowed to reopen discovery at any time for good cause. ....

56 [W]hen a request was made, they were told [the documents] did not [] exist. From the sworn testimony of this witness, they do apparently exist. I do find them to be relevant. I do find them to be the nature of where they should have been produced and I am instructing the party to produce them based on, if nothing else, the live testimony of the witness that was presented. .... The main crux or focus on this case tends to be on the repair and maintenance of the elevators, proper repair and maintenance.…the Court has the ability, upon a finding of good cause, to grant a party leave of court and request discovery in which I find in this case given the witness’[s] response yesterday to materials that appear to be very relevant that were never produced.…I’m instructing the parties if they have those materials that they produce them to the other side so that they can be reviewed and referenced for evidentiary purposes for the remainder of the case.

Counsel for Schindler told the court “[t]hey’re readily available[]” and that he had

the Schindler Service Excellence Service Delivery Manual, but he was advising his

client that it was not requested. The trial court stated that if it determined there had

been a discovery violation, it would sanction Schindler. The trial court also ordered

production of service tickets for the twelve months prior to the incident.

The following day, Plaintiff’s counsel told the court that the Service Delivery

Manual that Schindler produced referred to an Elevator Industry Field Employee

Safety Handbook, the current Schindler Safety Policies, Schindler Region Safety

Health and Environmental Manual, and Schindler’s Motor Generator Set

Maintenance Manual. Plaintiff’s counsel also stated that the named documents were

relevant to its previous discovery requests. The trial court stated:

57 I think to say that a safety manual or an employee handbook that deals with proper maintenance in an elevator in a lawsuit involving -- with the allegation that the elevator was not properly maintained, to say that we didn’t think that was relevant to the discovery or germane to their request is probably disingenuous.

Counsel for Schindler argued that it was “unfair and unjust” for the court to order

production during trial. The trial court ordered production of materials relating to

safety, which were “extremely relevant and germane” to the issues being tried.

Later that day, counsel for Schindler stated it had located three of the manuals.

After reviewing the documents, the court stated that only the table of contents had

been produced for the Field Safety Health and Environmental Manual, specifically

found the Field Safety Handbook and the High Risk Quick Book relevant, and

ordered they be produced. Schindler’s counsel argued that it was unfair to have to

produce documents he had not read, and the court responded that it was reasonably

known and foreseeable that such documents would be discoverable because they

deal with the safety and maintenance of an elevator. The court also stated that

production of the documents should not “come as a complete blindside” and did not

constitute unfair surprise.

Counsel for Schindler continued its efforts to locate the final policy materials.

On the final day of testimony, Schindler’s counsel told the court “I can’t give up

documents, even with a court order, that I’ve never seen.” The court responded that

the documents at issue were “standardized corporate policy materials[]” that are

58 generally vetted by corporate counsel and that “if your client didn’t apprise you of

the existence of these materials until the middle of trial, that’s really on your client

and not necessarily on you.” The court reiterated that it had ruled the documents

should have been disclosed in advance of trial and instructed Schindler’s counsel to

tender the documents to Plaintiff’s counsel. Later that day, counsel for Schindler told

the court it had four documents and was prepared to produce them. Plaintiff’s

counsel identified six sections of a safety manual that it had not received, and

Schindler’s counsel gave the court a thumb drive containing the documents.

Prior to closing arguments, at a discussion at the bench, Plaintiff’s counsel

told the court it had not received two policies about investigation procedures, and

Schindler’s counsel responded he had produced everything he had received from

Schindler. The court ordered the two remaining policies to be produced. Schindler

asked the court to reconsider its order, and the court stated that its ruling ordering

production of documents during trial was based on its finding that the documents

had been properly and timely sought during discovery, that Schindler affirmatively

represented that the documents did not exist, but a witness testified the documents

did exist. The court also explained that ordering production of the documents was

“an opportunity to remedy that discovery violation” without having to address

whether sanctions were necessary to deter such conduct in the future.

59 After the jury’s verdict was announced, Plaintiff’s counsel told the court it

still had not received the investigative documents, and its motion for sanctions was

pending. The court told counsel “let’s see if we can get the final document issue

resolved[,]” and “depending on what the documents show, we can certainly cross

that bridge whenever we get there.”

The trial court based its orders to produce documents during trial based on the

following findings: the documents were relevant and germane to the issues being

tried; they were timely sought during the discovery window; Schindler represented

that the documents did not exist, but witness testimony revealed that the documents

were readily available; it was foreseeable that such documents would be

discoverable because they dealt with the safety and maintenance of an elevator; the

documents were standardized corporate policy manuals; and production of the

documents did not constitute unfair surprise. The trial court told the parties it could

reopen discovery at any time, which is consistent with Texas Rule of Civil Procedure

190.5, which permits a court to modify a discovery control plan “at any time” when

justice requires. See Tex. R. Civ. P. 190.5. We do not agree with Appellant that the

trial court violated Rule 190.3, and the record reflects that the order to produce

documents during trial related to documents were timely requested, that existed, and

that Schindler failed to produce during the discovery period, and the order was “an

opportunity to remedy that discovery violation[.]” Because the trial court’s

60 discovery orders find support in the facts and circumstances of the case and they

were not arbitrary or unreasonable, we conclude that the trial court did not abuse its

discretion. See Samlowski, 332 S.W.3d at 410; Pape, 48 S.W.3d at 912. We overrule

Appellant’s third issue.

Motion for Sanctions

In its fourth issue, Appellant argues that the trial court erred by imposing

sanctions on Schindler for alleged pretrial discovery abuse. According to Appellant,

Ceasar waived his right to seek sanctions because he failed to move to compel before

trial. Appellant argues that, in his deposition, Hoover testified that Schindler

possessed a policies and procedures manual, and because Ceasar became aware of

the manual based on Hoover’s deposition, he was barred from seeking a posttrial

sanction based on pretrial conduct of which he was aware, citing to Meyer v. Cathey,

167 S.W.3d 327, 333 (Tex. 2005) and Remington Arms Co., Inc. v. Caldwell, 850

S.W.2d 167, 170 (Tex. 1993). Appellant further argues that, even if Ceasar did not

waive his right to seek sanctions, the sanctions were “manifestly unjust” because

Schindler, through its counsel, appropriately responded to the RFPs at issue.

Appellant also argues that it reasonably construed Plaintiff’s RFPs relating to “the

facility” to seek documents specific to the hotel, and it truthfully denied it had

responsive documents. In addition, Appellant argues that no evidence supported the

61 trial court’s finding that Schindler “failed to inform its own attorney of the existence

of the documents” Plaintiff requested.

Appellant argues that the sanctions imposed violate the Supreme Court’s

criteria set in TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.

1991) because (1) there was no evidence that Schindler was involved in the relevant

pretrial discovery events, (2) the documents at issue caused no prejudice because

they were produced during trial, and (3) the sanctions were excessive because

“Schindler did nothing wrong[]” so that the proper sanction would be “zero dollars.”

We review a trial court’s imposition of sanctions under an abuse of discretion

standard. Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006)

(citing Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004)). The ruling will be

reversed only if the trial court acted without reference to any guiding rules and

principles and the ruling was arbitrary or unreasonable. Id. To determine if sanctions

are appropriate, the appellate court must ensure there is a direct nexus between the

improper conduct and the sanction imposed. See Low v. Henry, 221 S.W.3d 609, 614

(Tex. 2007). We must also ensure the sanction imposed is not excessive and that less

severe sanctions would not have been sufficient to promote compliance.

TransAmerican, 811 S.W.2d at 917; see also 21st Mortg. Corp. v. Hines, No. 09-15-

00354-CV, 2016 Tex. App. LEXIS 13003, at *6 (Tex. App.—Beaumont Dec. 8,

2016, pet. denied) (mem. op.). The test for abuse of discretion is not whether the

62 reviewing court thinks that the facts presented an appropriate case for the trial court’s

action, but whether the trial court acted without reference to any guiding rules and

principles. See City of Dallas v. Cox, 793 S.W.2d 701, 724 (Tex. App.—Dallas 1990,

no writ) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42

(Tex. 1985)).

Ceasar filed a motion for sanctions against Schindler and its counsel of record

“for intentionally violating the Court’s orders as to Plaintiff’s motions in limine

(multiple times), for failing to comply with the Court’s evidentiary rulings during

trial (multiple times), and for failing to produce relevant and discoverable

documents.” According to the motion, Schindler represented to Ceasar that certain

policy and procedure manuals did not exist when they did exist, and Schindler failed

to produce all but one of the manuals.

At a post-trial hearing on the motion for sanctions, the court addressed “the

late tendering of items and discovery in the middle of trial[]” and explained that

“when there is relevant evidence that is not disclosed or is obscured or even hidden

at times, it does somewhat create the appearance of unfairness[.]” The court further

stated it should have been “very obvious and apparent” that a policy manual for

servicing elevators should have been disclosed “from the get-go[.]” Schindler told

the court that, based on the wording in Plaintiff’s RFPs, it was appropriate to object

to the RFPs as overly broad or for asking for materials that would be in the

63 possession of Otis (the elevator manufacturer) or the Elegante. Schindler also stated

that a party must seek a motion to compel or ruling on objections, else the right to

seek sanctions is waived. Schindler also stated that its counsel had provided all

documents before the end of trial. Plaintiff’s counsel told the court that it had

requested the documents almost a year before trial and Plaintiff relied on Schindler’s

response that it had no responsive documents. The court stated that Plaintiff had

objected to the lack of production, and its objection was sustained. The court also

told counsel for Schindler that it appeared that counsel had worked diligently to

procure the items during trial. 3

3 The trial court also issued a “letter ruling” stating the basis for the sanctions order. Generally, when a trial court sends a letter to the parties accompanying its order, the written order itself, and not the letter, is controlling on appeal. See, e.g., Trahan v. Fire Ins. Exch., 179 S.W.3d 669, 672 n.2 (Tex. App.—Beaumont 2005, no pet.); see also Mattox v. Cty. Comm’rs Court, 389 S.W.3d 464, 469 (Tex. App.— Houston [14th Dist.] 2012, pet. denied). In the letter ruling, the trial court stated in relevant part: [T]he Court finds that the Schindler policy manual and the work orders for the 12 month period preceding the accident were responsive to the original discovery request and should have either been produced, or at a minimum, disclosed the existence of the materials subject to an applicable objection. Likewise, following the email of June 20, 2018 from the Plaintiff requesting specific discovery, the Defendant should have supplemented their discovery with the documents at issue or disclosed their existence, subject to an objection. Furthermore, the Defendant even failed to inform its own attorney of the existence of these documents, which consequently resulted in the inaccurate discovery response that no responsive documents existed. The Court finds that these failures by Schindler were a material violation of Tex. R. Civ. P. 193.1, and therefore a monetary sanction of $25,000.00 is warranted. 64 The first matter we consider is the relationship between the conduct in

question and the sanction imposed. There should be a direct nexus between the

offensive conduct, the offender, and the sanction award. See Low, 221 S.W.3d at

614. In this case, the trial court distinguished the conduct of Schindler from that of

its counsel. Therefore, we find this prong is satisfied. See TransAmerican, 811

S.W.2d at 917 (“[T]he sanction should be visited upon the offender. The trial court

must at least attempt to determine whether the offensive conduct is attributable to

counsel only, or to the party only, or to both.”).

Next, we consider whether the punishment is proportional relative to the

misconduct and whether the sanction is excessive. Id. Here, the trial court stated that

Schindler had multiple opportunities to remedy the deficiencies, and a lesser

sanction would not be appropriate in light of the facts and cost to defend the lawsuit.

See id. (“courts must consider the availability of less stringent sanctions and whether

such lesser sanctions would fully promote compliance”).

There are several specific reasons supporting this decision. First, the Defendant had an opportunity to remedy the deficiencies (1) in the general discovery responses, (2) in their supplemental responses, and (3) following the Court’s admonishment at the pre-trial hearing. The Court further recognizes the need of the civil justice system to promote discovery standards that are efficient, reliable, expedient, fair, and complete. A lack of diligence by a party in procuring and producing relevant discovery wastes the Court’s time and resources, undermines the confidence of the civil discovery process, and offends the traditional notions of good faith and fair dealing. 65 As to Appellant’s argument that Plaintiff waived its right to seek sanctions

because it did not file a motion to compel, we note that the trial court explained on

the record at the sanctions hearing that the Plaintiff had timely objected to the lack

of production, and the objection was sustained. As to Appellant’s argument that

Schindler itself was not involved in the discovery, the trial court found otherwise

and concluded that Schindler had failed to advise its attorney that it had documents

that were responsive to Plaintiff’s RFP. We conclude that the trial court’s order

awarding sanctions is not unreasonable or arbitrary. We cannot say the court acted

without reference to guiding rules and principles. We find that the trial court’s

sanction award was within the zone of reasonable disagreement. See Am. Flood

Research, Inc., 192 S.W.3d at 583; Cox, 793 S.W.2d at 724. We overrule Appellant’s

fourth issue.

Jury Instructions

In two issues, Appellant challenges the jury charge. Appellant argues the trial

court erred by including an instruction on res ipsa loquitur, and by excluding the

Defendant’s requested instruction on spoliation of evidence. A trial court has wide

discretion in submitting jury instructions and questions. See Moss v. Waste Mgmt. of

Tex., Inc., 305 S.W.3d 76, 81 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).

We review a trial court’s decision to submit or refuse a particular jury instruction or

question for an abuse of discretion. Thota v. Young, 366 S.W.3d 678, 687 (Tex.

66 2012); Liberty Mut. Ins. Co. v. Camacho, 228 S.W.3d 453, 459 (Tex. App.—

Beaumont 2007, pet. denied) (citing Tex. Dep’t of Human Servs. v. E.B., 802 S.W.2d

647, 649 (Tex. 1990)). “An instruction is proper if it (1) assists the jury,

(2) accurately states the law, and (3) finds support in the pleadings and evidence.”

Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 855 (Tex.

2009). We will not reverse a judgment for charge error unless that error probably

caused the rendition of an improper judgment or because it probably prevented the

appellant from properly presenting its case to the appellate courts. See Thota, 366

S.W.3d at 687 (citing Tex. R. App. P. 44.1(a), 61.1).

Res Ipsa Loquitur

A res ipsa loquitur instruction may be used in particular cases when “the

circumstances surrounding the accident constitute sufficient evidence of the

defendant’s negligence to support such a finding.” Haddock v. Arnspiger, 793

S.W.2d 948, 950 (Tex. 1990) (citing Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 250

(Tex. 1974); Marathon Oil Co. v. Sterner, 632 S.W.2d 571, 573 (Tex. 1982)).

Res ipsa loquitur is applicable only when two factors are present: (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant.

Id. Where there are multiple defendants, any of whom could have been separately

responsible for the accident or injury due to its own negligence, res ipsa loquitur

67 does not apply. Sterner, 632 S.W.2d at 574. “The possibility of other causes for the

accident besides the defendant’s negligence does not have to be eliminated, but the

likelihood of other causes must be so reduced that the jury can reasonably find that

the negligence, if any, was committed by the defendant.” Id. (citing Bell, 517 S.W.2d

at 251). “[T]he ‘control’ requirement is not a rigid rule that the instrumentality must

have always been in the defendant’s possession or even that it must have been in the

defendant’s control at the time of the injury.” Bell, 517 S.W.2d at 251 (citing Honea

v. Coca Cola Bottling Co., 183 S.W.2d 968 (Tex. 1944)). “It is sufficient that the

defendant be in control of the instrumentality at the time that the negligence inferable

from the accident probably occurred.” Marathon Oil Co., 632 S.W.2d at 574.4

4 When the doctrine applies, it allows the factfinder to infer negligence provided the character of the accident is such that it would not ordinarily occur in the absence of negligence and the evidence shows that the instrument causing the injury was under the management and control of the defendant. Owen v. Brown, 447 S.W.2d 883, 886 (Tex. 1969). We note that in Gaulding v. Celotex Corp., the Texas Supreme Court stated that res ipsa loquitur is only applicable when two factors are present: (1) the character of the injury is such that it would not have occurred in the absence of negligence; and (2) the instrumentality which caused the injury is shown to have been under the sole management and control of the defendant. Porterfield v. Brinegar, 719 S.W.2d 558, 559 (Tex. 1986); Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 251 (Tex. 1974). 772 S.W.2d 66, 68 (Tex. 1989) (emphasis added). Nonetheless, neither Porterfield nor Bell used the qualifier “sole” as to the “management and control.” Porterfield, 719 S.W.2d at 559; Bell, 517 S.W.2d at 251. The Texas PJC also does not include the requirement of “sole” management and control. See Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Malpractice, Premises & Products PJC 51.8 (2018). 68 Appellant’s fifth issue argues that the trial court erred in giving a res ipsa

loquitur instruction. According to Appellant, “the evidence at trial showed that

elevators inevitably malfunction on occasion even when properly maintained.”

Appellant also argues that in this case, there was direct evidence of the accident’s

cause, 5 and res ipsa loquitur was therefore inapplicable.

Appellant also argues that Schindler did not have exclusive control over the

elevator; it did not manufacture the elevator, SDI board, or the elevator’s controller;

and the hotel and its personnel own and have control over the elevator. Appellant

also argues that hotel guests use the elevator continually, and Prudhomme testified

that guests sometimes misuse elevators and cause problems with their luggage or

holding the door open. According to Appellant, the exclusive-control requirement is

not met in this case because of the hotel’s control over the elevator and use or misuse

of elevators by hotel guests.

The instruction given in the Charge stated:

5 Appellant states that there was direct evidence of Schindler’s negligence. Appellant notes that Freeman testified that based on his review of Schindler’s maintenance records and his own inspection of the elevator, Schindler did not properly maintain the elevator and this improper maintenance caused the elevator’s SDI board to fail, which then caused the elevator to overspeed and stop abruptly. Schindler did not raise this argument during the charge conference or in its Trial Brief on the Exclusion of Jury Question on Res Ipsa Loquitur. Schindler also did not argue at trial or in the charge conference that it was error to submit an instruction on res ipsa because there was direct evidence of negligence. Therefore, Schindler failed to preserve this argument. See Tex. R. App. P. 33.1. 69 You are instructed that you may infer negligence by a party but are not compelled to do so, if you find that the character of the accident is such that it would ordinarily not happen in the absence of negligence and if you find that the instrumentality causing the accident was under the management and control of the party at the time of the negligence, if any, causing the accident probably occurred.

The jury charge also defined negligence, ordinary care, and proximate cause.

We need not decide whether the trial court erred in submitting the res ipsa

instruction because we conclude that Appellant has failed to establish that the

instruction given probably caused the rendition of an improper judgment. See Trans

Am. Holding, Inc. v. Market-Antiques and Home Furnishings, Inc., 39 S.W.3d 640,

649-50 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (citing Island

Recreational Dev. Corp. v. Republic of Tex. Sav. Ass’n, 710 S.W.2d 551, 555 (Tex.

1986)).

In this case, the jury charge also included an instruction on circumstantial

evidence:

The term “circumstantial evidence” means a fact may be established by direct evidence or by circumstantial evidence or both. A fact is established by direct evidence when proved by documentary evidence or by witnesses who saw the act done or heard the words spoken. A fact is established by circumstantial evidence when it may be fairly and reasonably inferred from other facts proved.

Based on the evidence presented at trial, the jury could have decided that Schindler

was negligent from either the direct or circumstantial evidence in the case. The jury

could have believed the testimony provided by the Plaintiff’s expert that Schindler’s

70 inadequate or improper maintenance and repair to the control board caused the

accident even without relying on the res ipsa loquitur instruction. Accordingly,

Schindler has failed to demonstrate harm or that the instruction probably led to an

improper judgment. See Tex. R. App. P. 44.1(a), 61.1; Thota, 366 S.W.3d at 687;

Island Recreational Dev. Corp., 710 S.W.2d at 555; Trans Am. Holding, Inc., 39

S.W.3d at 650.

On appeal, Schindler argues that including the res ipsa instruction was

harmful and probably caused an improper judgment. Schindler argues that the

instruction was harmful and requires reversal because (1) the instruction was

“incorrect law” that was inapplicable to the case and (2) it related to a “contested,

critical issue[,]” citing to Glenn v. Leal, 596 S.W.3d 769, 772 (Tex. 2020) and

Railroad Commission of Texas v. Gulf Energy Exploration Corp., 482 S.W.3d 559,

571 (Tex. 2016). Glenn concerned “whether the jury should apply a standard of

willful and wanton negligence[.]” See 596 S.W.3d at 772. As such, it pertained to

the standard of proof required of the plaintiff when the complained-of conduct

relates to emergency medical care. Gulf Energy concerned the failure to submit an

instruction on a good-faith defense. See 482 S.W.3d at 571-72.

Schindler failed to make these arguments to the trial court. In Glenn, the

plaintiff had requested an instruction on willful and wanton negligence, but the trial

court denied the instruction and gave the jury an instruction on ordinary negligence.

71 See 596 S.W.3d at 771. In Gulf Energy, the Court concluded that error had not been

waived because the defendant had submitted a proposed question in writing on its

good-faith defense. See 482 S.W.3d at 571-72. In addition, the Court reversed and

remanded on a second issue, namely the failure to submit a jury question on whether

there was a binding contract between the parties. Id. at 572-76. We find these cases

distinguishable because Glenn and Gulf Energy concerned whether certain critical

legal issues were presented to the jury. An instruction on res ipsa does not concern

a theory of recovery (or defense thereto) but is merely one means by which a jury

may infer negligence. See Trans Am. Holding, Inc., 39 S.W.3d at 650 (explaining

that res ipsa is not an independent theory of recovery but a rule of evidence whereby

negligence may be inferred); Nichols v. Copeland, No. 05-99-01233-CV, 2001 Tex.

App. LEXIS 4761, at **6-7 (Tex. App.—Dallas 2001, pet. denied) (mem. op.).

Schindler also argues that “[t]he instruction on circumstantial evidence was

sufficient in this case,” and that giving a separate res ipsa instruction “exacerbated”

the error, citing to Lee v. Huntsville Livestock Servs., No. 14-02-00182-CV, 2003

Tex. App. LEXIS 2861, at *4 (Tex. App.—Houston [14th Dist.] Apr. 3, 2003, pet.

denied). The record does not reflect that Schindler made this argument in the trial

court. And in Lee, the court concluded that the appellant had not shown it was

“entitled” to instructions on both res ipsa and circumstantial evidence—not that

giving both instructions was harmful or that it “exacerbated” any error. Id. at *6. The

72 court in Lee also noted that “a circumstantial evidence instruction…has been

recognized as properly informing the jury it could infer negligence from

circumstantial evidence.” See id. at **6-7 (citing Trans Am. Holding, Inc., 39

S.W.3d at 650; Nichols, 2001 Tex. App. LEXIS 4761, at **6-7). Schindler also

argues in its brief on appeal that “[d]irect evidence of Schindler’s alleged negligence,

including maintenance records, came in at trial.” We agree that there was both direct

and circumstantial evidence from which a jury could have concluded that

Schindler’s negligence was a cause of the occurrence in question. We cannot say

that Schindler has established it was harmful to give a res ipsa instruction because

the jury could have decided Schindler was negligent based on direct evidence alone

and because it failed to object to the instruction on circumstantial evidence. See also

Mobil Chem. Co., 517 S.W.2d at 255 (submission of instructions on res ipsa and

specific acts of negligence is not reversible error); Trans Am. Holding, Inc., 39

S.W.3d at 649-50 (concluding that even if appellants had shown that the character

of the incident was such that it could not have occurred without negligence, they did

not show that the error resulted in an improper judgment where there was direct

evidence of negligence). We overrule Appellant’s fifth issue.

73 Spoliation Instruction

In its sixth issue, Appellant argues that the trial court erred by refusing to

include an instruction on spoliation of evidence because Ceasar “deliberately

destroyed” his Facebook Live video that he made when the incident occurred.

According to Appellant, it was significantly prejudiced by Ceasar’s destruction of

the video, which Appellant characterizes as “uniquely probative evidence.”

Appellant argues that the video likely showed that Ceasar was not injured by the

abrupt elevator stop and would have undermined his credibility. Although Pearson,

the acting hotel manager at the time of the incident, testified that she watched the

video, Appellant argues that her testimony is “no substitute for the video itself.”

We review the denial of a spoliation instruction for an abuse of discretion and

reverse only if the trial court’s denial of the instruction was arbitrary or

unreasonable. See Mangham v. YMCA of Austin, Tex.-Hays Comtys., 408 S.W.3d

923, 931 (Tex. App.—Austin 2013, no pet.). A party seeking a remedy for its

opponent’s spoliation of evidence must satisfy three elements: “(1) the party who

destroyed or failed to produce evidence had a duty to preserve it; (2) the party either

negligently or intentionally breached that duty by destroying the evidence or

rendering it unavailable; and (3) the breach prejudiced the nonspoliating party.”

Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 19 (Tex. 2014) (citing Trevino v.

Ortega, 969 S.W.2d 950, 955-58 (Tex. 1998) (Baker, J., concurring). The duty to

74 preserve evidence arises “when a party knows or reasonably should know that there

is a substantial chance that a claim will be filed and that evidence in [his] possession

or control will be material and relevant to that claim.” Wal-Mart Stores, Inc v.

Johnson, 106 S.W.3d 718, 722 (Tex. 2003).

Appellant argues that Ceasar intentionally spoliated evidence when he deleted

his Facebook Live video “after speaking with his lawyer, filing an incident report

with the hotel, and going to the emergency department for treatment.” Appellant

further argues that “[r]ight after the elevator incident, Ceasar started behaving like a

person planning to file a personal injury lawsuit.” According to Appellant, the

court’s refusal to give a spoliation instruction meant there was no remedy for

Ceasar’s spoliation, and because the case was closely contested, the likelihood of

harm was substantial, citing to Aldridge, 438 S.W.3d at 29. In that case, the Supreme

Court concluded that a spoliation instruction was given in error, and because the case

was closely contested, the likelihood of harm was substantial. Id. (citing Johnson,

106 S.W.3d at 724).

Appellee argues that there is no proof that Ceasar knew he had a duty to

preserve the video and intentionally destroyed it at a time when he knew or should

have known that he was going to file a claim. Schindler argues that Ceasar deleted

the video “after speaking with his lawyer[.]” The record reflects that Ceasar did

speak with his brother-in-law, who is an attorney, and that his brother-in-law served

75 as Ceasar’s attorney in previous lawsuits. But the record is silent as to whether the

conversation with his brother-in-law prompted Ceasar to delete the video. Ceasar

testified that he decided to delete the video because it brought back bad memories

and made him feel like he was reliving the event, and he specifically denied that he

thought about suing before he deleted the Facebook Live video. Ceasar testified that

he went to the hospital in Port Arthur because he was feeling pain, and the hospital

records indicate Ceasar had acute pain that he rated 8 or 10 out of 10, and Ceasar

was prescribed pain medication. Ceasar testified that he made a written report at the

Elegante in response to the hotel’s request that he do so. Pearson, the acting manager

at the Elegante on the day of the incident, also testified that the hotel’s procedure is

to obtain a statement from a person who is injured at the hotel, which is sent to the

general manager and the corporate office. Ceasar testified that he wished he had

saved the Facebook Live video. Pearson testified that she watched the video, and

that it showed Ceasar was kicking and beating the elevator door and seemed “very

agitated[.]” She did not recall Ceasar ever saying in the video that he was injured or

appeared injured.

As for Schindler’s argument that the video would have shown that Ceasar was

not injured, Drs. Brennan, Hayes, and Cowen testified that they treated or observed

Ceasar, and each testified about Ceasar’s injuries. The doctors’ medical reports were

76 also admitted into evidence in addition to Ceasar’s patient records from his treatment

at the Port Arthur hospital on the day of the incident.

In denying Schindler’s request for a spoliation instruction, the trial court

[T]he Court does not find that there’s a sufficient showing by either side to demonstrate that the presentation of a cause of action or any defense in the case has been materially obstructed or prevented by certain evidence not being preserved or deleted.…I’ll note that the Court considered that there was other evidence of what was contained within that video from the witnesses who had actually observed the video.…[T]he law is pretty clear from the showing of what must be established in order for a spoliation instruction to be included in the charge is an extremely high showing and one that would relate to either a party being materially prejudiced or disadvantaged in the presentation of the case by destruction of the evidence or it being done maliciously or intentionally in order to hinder the opposing party’s presentation of the case. I don’t find that either has been established[.]

Applying an abuse of discretion standard of review, we cannot say the trial court

abused its discretion in denying the spoliation instruction. Additionally, Schindler

has failed to meet its burden to establish that Schindler was prejudiced by the

deletion of the video. See Aldridge, 438 S.W.3d at 14. We overrule Appellant’s sixth

issue.

Motion for Mistrial

In its seventh and final issue, Appellant argues that the trial court erred by

denying its motion for mistrial. The motion for mistrial cited five errors that

Appellant claimed warranted a mistrial: (1) the court’s exclusion of evidence that

77 Ceasar applied for and was denied SSD benefits, (2) the court’s exclusion of

evidence of Ceasar’s previous lawsuits, (3) the court’s rulings that required

Schindler to produce documents during trial, (4) the court’s refusal to allow

Schindler to offer evidence or question witnesses about the Elegante’s responsibility

for the elevator incident, and (5) the improper admission of hearsay testimony from

plaintiff’s expert that Schindler had a poor reputation in Texas. Schindler’s motion

for mistrial asked the court to declare a mistrial, grant a new trial, and continue the

new trial pending the appeal of the summary judgment ruling in favor of the

Elegante.

We review a trial court’s denial of a motion for mistrial under an abuse of

discretion standard. See Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926

(Tex. 2009); Michaelski v. Wright, 444 S.W.3d 83, 89 (Tex. App.—Houston [1st

Dist.] 2014, no pet.). A mistrial is required only in extreme circumstances, where the

prejudice is incurable. See Givens v. Anderson Columbia Co., Inc., 608 S.W.3d 65,

71 (Tex. App.—San Antonio 2020, pet. denied). Under the doctrine of cumulative

error, the cumulative effect of several errors can, in the aggregate, constitute

reversible error, even though no single instance of error would. See Sproles Motor

Freight Lines, Inc. v. Long, 168 S.W.2d 642, 644-45 (Tex. 1943); Owens-Corning

Fiberglas Corp. v. Malone, 916 S.W.2d 551, 570 (Tex. App.—Houston [1st Dist.]

1996), aff’d, 972 S.W.2d 35 (Tex. 1998). To show cumulative error, an appellant

78 must show that, based on the entire record, but for the alleged errors, the jury would

have rendered a verdict favorable to it. See Town E. Ford Sales, Inc. v. Gray, 730

S.W.2d 796, 810 (Tex. App.—Dallas 1987, no writ). If there are no errors, we do

not address whether there is cumulative error. See In re E.R.C., 496 S.W.3d 270, 281

(Tex. App.—Texarkana 2016, pet. denied). We have already addressed the first three

items and found no error. We next address Appellant’s fourth and fifth alleged errors.

The Elegante’s Alleged Responsibility

Prior to trial, the trial court granted the Elegante’s Traditional and No-

Evidence Motion for Summary Judgment and entered a final summary judgment and

order of severance on behalf of the Elegante that stated in part “[t]his order is

intended to fully and finally dispose of all claims and causes of action Plaintiff

Darren Ceasar asserts against Defendant 904 Hotel Operating, LLC [d/b/a MCM

Elegante Hotel] in this matter.” When Schindler moved for a mistrial during the trial,

the trial court stated that when the Elegante moved for summary judgment, Schindler

did not file a response, a countering position, a cross-claim, or a Motion to Designate

Responsible Third Party. The court further explained:

[It] would be impermissible argument or impermissible statement…to try and allege that the Elegante[] was negligent in some way, shape, or form in the maintenance or any activity that they may have done in relation to these particular elevators. And the basis for that ruling, again, was foreclosed upon the fact that since the Elegante[] was released from this litigation given that the Court’s prior Summary Judgment ruling on there was no evidence of liability, that matter of

79 trying to place or infer any negligence or liability on the part of the Elegante[] would have been improper.

Section 33.003(a) of the Civil Practice and Remedies Code requires a jury to

determine the percentage of responsibility by each claimant, defendant, settling

person, and responsible third party. See Tex. Civ. Prac. & Rem. Code Ann.

§ 33.003(a). Subsection (b) “does not allow a submission to the jury of a question

regarding conduct by any person without sufficient evidence to support the

submission.” See id. § 33.003(b). The Code defines “defendant” as “any person from

whom, at the time of the submission of the case to the trier of fact, a claimant seeks

recovery of damages.” Id. § 33.011(2).

Schindler argues that the Elegante was a “defendant” at the time the case was

submitted to the jury because Plaintiff was challenging the summary judgment that

was severed from the claims against Schindler and in fact later appealed it. We

disagree. The order of February 5, 2018 granting summary judgment in favor of the

Elegante reflected that there was insufficient evidence of any negligence by the

Elegante. The order also severed the claims against the Elegante from the claims

remaining against Schindler and assigned it a new cause number. Therefore, at the

time of trial in March 2019, Schindler was the only defendant in the case presented

to the jury. Schindler also conceded this point in its Motion for Reconsideration of

the Denial of Its Motion for Mistrial and Motion for Continuance. Additionally, the

record before us indicates that Schindler did not file a motion designating the 80 Elegante as a “responsible third party.”6 See Tex. Civ. Prac. & Rem. Code Ann.

§§ 33.003, 33.004. And there was no evidence presented to the trial court that the

Elegante was a “settling party.” 7 Therefore, based on the record, we cannot say the

trial court erred in refusing to allow Schindler to submit the Elegante as part of the

negligence question, nor can we say the trial court erred in refusing to allow

Schindler to argue or offer evidence of the Elegante’s responsibility.

Reputation Evidence

Appellant argues that the trial court erred by overruling its objection to the

testimony of Freeman that Schindler had a “very poor” reputation in Texas. The

following exchange occurred on direct examination of Freeman by plaintiff’s

counsel:

Q. [W]hat’s Schindler’s general reputation in the elevator industry, especially here in Texas?

6 A “responsible third party” is defined by statute as [] any person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these. Tex. Civ. Prac. & Rem. Code Ann. § 33.011(6). And a party must designate a responsible third party “on or before the 60th day before the trial date unless the court finds good cause to allow the motion to be filed at a later date.” Id. § 33.004(a). 7 A “settling party” is defined by statute as “a person who has, at any time, paid or promised to pay money or anything of monetary value to a claimant in consideration of potential liability with respect to the personal injury, property damage, death, or other harm for which recovery of damages is sought.” Tex. Civ. Prac. & Rem. Code Ann. § 33.011(5). 81 A. They have a very poor reputation here in the State of Texas.

Schindler did not object to this testimony. Schindler’s counsel later cross-examined

Freeman as follows:

[Counsel for Schindler]: …You said that Schindler has evidence of a bad reputation; is that right?

A. That’s correct, sir.

[Counsel for Schindler]: Tell me -- what evidence of that? Who said that? Where did you see that? Why do you think that?

A. I can see that in the techs that I have visited with and the other customers that I have seen and when I’ve done the property assessments or inspections.

Schindler’s counsel then asked Freeman for names, and Freeman gave two names.

During redirect, Plaintiff’s counsel again asked about Schindler’s reputation,

Schindler objected, and the following exchange occurred:

[Counsel for Schindler]: I’m going to object. Anything he says about what somebody said is hearsay. If he says[,] “Larry said this,” that’s hearsay and I object.

The Court: Hold on. You may have opened the door to that, though when you did ask your prior question.

[Counsel for Schindler]: The question is did he know. If he says, “Larry told me,” that’s different. If he’s seen it, I have no problem with that.

The Court: I mean, without getting into the content of the actual quote verbatim what was said, if there are people that had communicated dissatisfaction with the work or service, that would not be hearsay. You can answer that.

82 On appeal, Schindler argues that evidence of a party’s reputation is

inadmissible hearsay. Schindler did not make this objection at trial. Schindler also

failed to object the first time Freeman commented about Schindler’s reputation.

Therefore, the point of error was waived, and any error is harmless. See Tex. R. App.

P. 33.1; McAllen Hosps., L.P. v. Lopez, 576 S.W.3d 389, 392 (Tex. 2019)

(concluding that error in the admission of evidence was harmless where other

evidence of the same information was admitted without objection); Richardson v.

Green, 677 S.W.2d 497, 501 (Tex. 1984); see also Tex. R. Evid. 802 (“Inadmissible

hearsay admitted without objection may not be denied probative value merely

because it is hearsay.”). Therefore, we overrule this issue.

We further conclude that Schindler failed to meet its burden to establish that

the trial court abused its discretion in denying the motion for a mistrial and Schindler

has failed to show that any prejudice caused by the alleged errors was incurable. See

Givens, 608 S.W.3d at 71. We overrule Appellant’s seventh issue.

Having overruled all of Appellant’s issues, we affirm the trial court’s

judgment.

AFFIRMED. _________________________ LEANNE JOHNSON Justice Submitted on June 16, 2021 Opinion Delivered November 30, 2021

Before Golemon, C.J., Horton and Johnson, JJ. 83