Greenwood Motor Lines, Inc. D/B/A R+L Carriers and Steven C. Gaston v. Bobbie Bush ( 2016 )


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  • Affirmed and Opinion Filed August 17, 2016
    S
    Court of Appeals
    In The
    Fifth District of Texas at Dallas
    No. 05-14-01148-CV
    GREENWOOD MOTOR LINES, INC. D/B/A R+L CARRIERS AND STEVEN C.
    GASTON, Appellants
    V.
    BOBBIE BUSH, Appellee
    On Appeal from the 298th Judicial District Court
    Dallas County, Texas
    Trial Court Cause No. DC-11-16041-M
    MEMORANDUM OPINION
    Before Justices Bridges, Stoddart, and O'Neill1
    Opinion by Justice Bridges
    Greenwood Motor Lines, Inc. d/b/a R+L Carriers and Steven C. Gaston appeal the trial
    court’s judgment, following a jury verdict, in favor of Bobbie Bush. In five issues, Greenwood
    argues (1) the evidence is legally and factually insufficient to support the jury’s findings and the
    trial court erred by (2) incorrectly handling spoliation allegations, (3) admitting certain expert
    testimony, (4) admitting evidence of Greenwood’s preventability assessments, and (5) allowing
    the jury to hear allegations of Greenwood’s net worth. In seven issues, Gaston argues (1) the
    evidence is legally and factually insufficient to support the jury’s findings and the trial court
    erred by (2) striking certain jurors for cause, (3) admitting certain expert testimony, (4) admitting
    1
    The Hon. Michael J. O'Neill, Justice, Assigned
    a “summary” of Gaston’s own testimony, (5) excluding certain evidence, (6) admitting evidence
    of Gaston’s prior bad acts, and (6) allowing Bush’s counsel to make certain improper and
    prejudicial arguments. We affirm the trial court’s judgment.
    On December 5, 2011 at approximately 9:30 p.m., Bush was driving east on Interstate 20
    near Weatherford when a tractor-trailer driven by Gaston struck Bush from behind. Gaston’s
    vehicle flipped over multiple times, causing her physical and neurological injuries.          On
    December 22, 2011, Bush filed a lawsuit against Gaston and his employer, Greenwood, alleging
    claims of negligence, negligence per se, and gross negligence. The lawsuit progressed, and, on
    May 15, 2013, Greenwood filed its original answer in which it argued Bush’s own negligence
    was “the sole proximate cause or a proximate cause and/or the sole producing cause or a
    producing cause of the accident.”       In addition, Greenwood argued the accident was an
    unavoidable accident or the result of a sudden emergency; Bush’s claim for punitive damages
    was insufficiently pled; and Greenwood could not be held liable for punitive damages because its
    actions were in compliance with regulatory or statutory standards, its actions did not cause Bush
    harm, Bush’s injury was caused by someone else, and Bush was the sole cause of her injury or
    her negligence contributed to her injury. In the alternative, Greenwood argued any award of
    punitive damages was subject to a statutory cap or was barred by the Fourth, Fifth, Sixth, Eighth,
    and Fourteenth Amendments to the United States Constitution.
    Following numerous hearings on motions for sanctions, motions to exclude expert
    witnesses, and motions to compel, among others, the case proceeded to trial in March 2014.
    Bush testified that, on December 5, 2011, she was driving her 1994 Chevrolet pickup truck with
    boxes of household goods in the bed with a tarp covering them. Bush’s two dogs were in a
    “doggy car seat” attached with the seat belt in the seat next to her. Bush was in the process of
    moving from Las Vegas to Mississippi. The boxes in the bed of the truck did not prevent Bush
    –2–
    from seeing out of the rear sliding window or “both side windows.” Neither “the stuff in [the
    truck] bed” nor the tarp covered the truck’s taillights. Bush drove through a construction zone in
    Weatherford and was traveling “a few” below the speed limit in the right lane. Bush was “rear-
    ended” and described the accident as “like lights, screech, boom and literally three seconds.”
    Bush’s truck “started spinning and started to flip.” Bush did not remember anything “from the
    flip . . . to seeing lights” and found herself hanging upside down with her seat belt choking her.
    As Bush was trying to get out of the truck, she saw “lights and sirens and realized it was the
    police and ambulance people.” Bush remembered a female police officer asking if Bush was
    okay and taking her to an ambulance. Both of Bush’s dogs died in the accident. Initially, Bush
    refused to go to the hospital, but she developed blurred vision, migraines, nausea, and painful
    bruises, so she went to the emergency room several days later. Bush received ongoing treatment
    and required surgery to her neck that required “six pins and two plates.” At the time of trial,
    Bush was “never pain free,” and she required back surgery when her doctor cleared her
    following the neck surgery.
    Gaston testified he rear-ended Bush, and the impact from the collision caused Bush’s
    truck to “flip off the roadway.” Gaston testified Bush’s taillights were not covered by a tarp, and
    “nothing about the tarp caused this collision.” Gaston thought Bush “could be on the side of the
    road dead,” but he did not call 911 because he “could hear sirens already.” Gaston “checked on”
    Bush and then used his cell phone to call Greenwood. Gaston “talked to a lady,” Misty Urton, at
    Greenwood for about ten minutes and then “started receiving phone calls from somebody else” at
    Greenwood. Urton created a “preliminary even report” within ten minutes of the accident. The
    report stated “snow” under weather conditions, “wet” under road conditions, and 65 miles per
    hour under driver’s speed. Gaston testified he “did not tell anybody” he was going 65 miles per
    hour and denied there was snow on the road and denied that the road was wet. Bush’s counsel
    –3–
    asked Gaston if the mobile data terminal (MDT) on his truck could have told “somebody” at
    Greenwood his speed, and Gaston answered, “I assume.” Gaston testified he knew the MDT
    records location, but he was “not sure about the speed.” Gaston testified he was told the MDT
    “records location and your speed,” but he was “looking at other papers” and noticed “the speed
    that is showing is not correct.” The MDT in Gaston’s truck provided information on the truck’s
    location and speed on the day of the accident up until approximately 3:00 p.m. and then the
    information stopped until approximately 1:00 or 2:00 a.m. Gaston testified the only way the data
    would not be recorded was if the MDT was unplugged, but it was not unplugged.
    Gaston testified he kept a logbook in which he recorded the times he drove, and
    Greenwood had an obligation to monitor his logbook and make sure he was complying with
    federal requirements concerning rest periods. In his logbook entry for the day of the accident,
    which Gaston filled out four days later, he did not record the accident. Gaston testified he
    “falsified the log.” On the day of the accident, Gaston’s truck was pulling “doubles,” two
    twenty-eight-feet-long trailers.   The only training he received from Greenwood concerning
    doubles was “how to connect them.” After that, Gaston “learn[ed] how to operate the Doubles
    by getting out on the road and getting experience.”
    Bush introduced the deposition testimony of Thames Do, who testified that, on December
    16, 2003, Gaston rear-ended him “on the rear of the left side and caused the damage on the left
    rear side, you know, in the signal lights.” After the accident, Do stopped on the side of the
    freeway and waited for “the driver of the semi truck to stop it,” but the driver did not stop. Do
    followed the truck “for several miles at least” and recorded the license number of the truck.
    Meanwhile, Do was honking his horn and flashing his lights, but the truck did not stop. The next
    day, Do filed a police report and contacted Greenwood. After Do sent Greenwood an estimate
    for repair of the damage, pictures of the damage, “the serial number of the truck and everything,
    –4–
    Greenwood denied Do’s claim.         Do sued Greenwood in Dallas small claims court, and
    Greenwood offered to settle his claim. Greenwood determined the accident between Gaston and
    Do was “preventable” and notified Gaston of this determination in February 2004.
    Oscar Reyna testified that, in April 2007, he was driving on a bridge on Interstate 20
    when Gaston came up behind him, jackknifed his trailer, and hit Reyna from behind, causing
    Reyna to hit the vehicle in front of him. Gaston was ticketed for failure to control speed. Again,
    Greenwood notified Gaston the accident was ruled as “preventable” by Greenwood.
    Whitney Morgan testified he audited Gaston’s logs “not only for what the logs say on the
    face of the log for completeness purposes but also against any time or date relevant operational
    documents of the motor carrier.” Morgan described “pattern logging” as “a term of art in the
    industry that deals with information on the driver’s log that is the same on each log, each day,
    day in and day out.” Morgan reviewed Gaston’s logs relating to a five-month period and found
    pattern logging was present: Gaston was “averaging the exact same speed every single day that
    he drove, 61 miles an hour.” Morgan testified the presence of pattern logging was “a red flag”
    that “should give the carrier notice that there may be a problem with these logs.”
    The jury found (1) Gaston’s negligence proximately caused the occurrence in question,
    and Bush’s did not; (2) Gaston was 100% responsible for the occurrence; (3) Greenwood’s
    negligence in entrusting a vehicle to an incompetent or reckless driver proximately caused the
    occurrence; (4) Greenwood’s negligence in retaining or supervising an incompetent or unfit
    employee proximately caused the occurrence; (5) Greenwood was negligent in failing to provide
    training beyond that which was given, and such negligence was a proximate cause of the
    occurrence because the negligence of the driver whom Greenwood failed to properly train was a
    proximate cause of the collision; (6) the harm to Bush resulted from gross negligence attributable
    to Gaston; and (7) the harm to Bush resulted from gross negligence attributable to Greenwood.
    –5–
    The jury charge did not contain a spoliation instruction. In accordance with the jury’s verdict,
    the trial court entered judgment awarding Bush $4,088,669.28 in actual damages, $50,000 in
    punitive damages, and interest. This appeal followed.
    In his first issue, Gaston argues the trial court erred by not allowing him a jury of his
    peers, which denied appellants their right to a fair trial. Specifically, Gaston argues the trial
    court “struck for cause all jurors who would not affirmatively commit to award limitless non-
    economic damages to Bush.” In addition, Gaston complains other venire members were stricken
    because “they generally question lawsuits and favor tort reform” or because they “had
    sympathies toward trucking companies.” Gaston complains the trial court erred in allowing
    Bush to “systematically remove from the panel dozens of venire members she found unfavorable
    to her before ever having to utilize a single peremptory strike.” Gaston argues this violated his
    right to due process and to a jury trial under the United States Constitution and the Texas
    Constitution, “by denying Gaston his right to a jury selected from a fair and reasonable cross-
    section of the community.” Gaston argues none of the jurors stricken for cause “expressed a bias
    or prejudice because of their lack of commitment to a damages award.”
    We note Gaston did not object to the jury panel that was actually seated, only to the
    exclusion of the jurors stricken for cause. Even if challenges for cause are improperly sustained,
    no reversible error is presented unless appellant can show he or she was denied a trial by a fair
    and impartial jury. Solomon v. Steitler, 
    312 S.W.3d 46
    , 59 (Tex. App.—Texarkana 2010, no
    pet.); City of Hawkins v. E.B. Germany & Sons, 
    425 S.W.2d 23
    , 26 (Tex. Civ. App.—Tyler
    1968, writ ref’d n.r.e.). Because Gaston did not object to any juror on the panel, it must be
    presumed that he was afforded a fair and impartial jury, and no harm could have resulted by
    reason of the court’s dismissal of the jurors stricken for cause. 
    Solomon, 312 S.W.3d at 59
    . We
    overrule Gaston’s first issue.
    –6–
    In his second issue, Gaston argues the trial court’s judgment should be reversed because
    “the trial court abused its discretion in admitting purported expert testimony that tainted the jury
    throughout the course of trial.” Specifically, Gaston argues the trial court erred in admitting the
    police report and testimony of Officer Angela McCrory regarding causation. Gaston argues
    McCrory was not qualified to render opinions regarding accidents, she had no specialized
    training or expertise in accident reconstruction, her opinions and report were not reliable, and
    there is “too great of a gap between the data relied on and her testimony.”
    Gaston also complains of the trial court’s admission of testimony by accident
    reconstruction expert John Smith.      Gaston argues Smith was “not qualified; his proposed
    testimony was not timely disclosed; and his testimony served no valid evidentiary purpose, is
    unreliable, would interfere with this Court’s sole authority to instruct the jury as to controlling
    law and the jury’s exclusive fact-finding responsibility, and is confusing, misleading, and
    otherwise unfairly prejudicial.”     In addition, Gaston argues Smith’s testimony regarding
    destruction of evidence and MDT was speculative and should not have been considered by the
    jury, his video animation of the accident was not substantially similar to the accident, his
    accident reconstruction testimony was unreliable, and his testimony regarding the tarp not
    covering Bush’s taillights lacked foundation and should have been excluded as unreliable. In its
    first issue, Greenwood also attacks Smith’s testimony, incorporating Gaston’s arguments
    concerning the inadmissibility of Smith’s testimony generally and specifically attacking Smith’s
    testimony regarding spoliation and arguing Greenwood had no duty to preserve and the trial
    court improperly barred the presentation of evidence to rebut Bush’s accusations of spoliation.
    Regarding spoliation, Greenwood argues Brookshire Bros. v. Aldridge, 
    438 S.W.3d 9
    , 29
    (Tex. 2014) “categorically shows a spoliation instruction was never an available sanction remedy
    and Bush had no right to offer any spoliation evidence, much less hold a spoliation mini-trial.”
    –7–
    Aldridge, issued on July 3, 2014, held that evidence bearing solely on whether a party spoliated
    evidence or the party’s degree of culpability in doing so did not relate to a fact of consequence to
    the determination of the action. 
    Id. at 26.
    The court in Aldridge held that the trial court
    determines whether evidence was spoliated and the proper remedy. 
    Id. at 19.
    The trial court
    may hold an evidentiary hearing to assist the court in making spoliation findings, but not in the
    presence of the jury. 
    Id. at 20.
    Thus, Aldridge stands for the proposition that the trial court
    alone, outside the presence of the jury, should make a determination regarding spoliation and a
    suitable remedy. See 
    id. at 19-29.
    However, as the dissent in Aldridge points out, the majority
    articulates a spoliation framework that departs in significant ways from decades of spoliation
    jurisprudence as developed by our capable courts of appeals. 
    Id. at 30
    (Guzman, J., dissenting).
    Prior to Aldridge, the exclusion or admission of evidence regarding spoliation was an issue
    within the trial court’s discretion. Malone v. Foster, 
    977 S.W.2d 562
    , 564 (Tex. 1998). We
    conclude this case, which was tried to a jury before the opinion in Aldridge issued, properly
    applied the law in effect at the time.
    A trial judge’s decision to admit or exclude evidence is reviewed for abuse of discretion.
    Horizon/CMS Healthcare Corp. v. Auld, 
    34 S.W.3d 887
    , 906 (Tex. 2000). Unless the trial
    judge’s erroneous evidentiary ruling probably caused the rendition of an improper judgment, we
    will not reverse the ruling. 
    Id. An appellate
    court must uphold the trial judge’s evidentiary
    ruling if there is any legitimate basis for it. Owens–Corning Fiberglas Corp. v. Malone, 
    972 S.W.2d 35
    , 43 (Tex. 1998). For an expert’s testimony to be admissible, the expert witness must
    be qualified to testify about “scientific, technical, or other specialized knowledge,” TEX. R. EVID.
    702, and the testimony must be relevant and based upon a reliable foundation. TXI Transp. Co.
    v. Hughes, 
    306 S.W.3d 230
    , 234 (Tex. 2010); Exxon Pipeline Co. v. Zwahr, 
    88 S.W.3d 623
    , 628
    (Tex. 2002). An expert’s testimony is relevant when it assists the jury in determining an issue or
    –8–
    in understanding other evidence.    TEX. R. EVID. 702.     But, expert testimony based on an
    unreliable foundation or flawed methodology is unreliable and does not satisfy Rule 702’s
    relevancy requirement. E.I. du Pont de Nemours & Co. v. Robinson, 
    923 S.W.2d 549
    , 556–57
    (Tex.1995) (discussing TEX. R. EVID. 702).
    When the reliability of an expert’s testimony is challenged, courts “‘should ensure that
    the [expert’s] opinion comports with the applicable professional standards.’” Helena Chem. Co.
    v. Wilkins, 
    47 S.W.3d 486
    , 499 (Tex. 2001) (quoting Gammill v. Jack Williams Chevrolet, Inc.,
    
    972 S.W.2d 713
    , 725–26 (Tex.1998)). To aid in that determination, the Texas Supreme Court
    has suggested several factors to consider when assessing the admissibility of expert testimony
    under Rule 702. The supreme court has emphasized, however, that these factors are non-
    exclusive, and that they do not fit every scenario. 
    TXI, 306 S.W.3d at 235
    ; 
    Gammill, 972 S.W.2d at 726
    . These factors are particularly difficult to apply in vehicular accident cases involving
    accident reconstruction testimony. 
    TXI, 306 S.W.3d at 235
    ; Ford Motor Co. v. Ledesma, 
    242 S.W.3d 32
    , 39 (Tex. 2007) (citing Cooper Tire & Rubber Co. v. Mendez, 
    204 S.W.3d 797
    , 802
    (Tex. 2006)); see also 
    Gammill, 972 S.W.2d at 727
    . Nevertheless, the court, as gatekeeper,
    “must determine how the reliability of particular testimony is to be assessed.” 
    Gammill, 972 S.W.2d at 726
    . Rather than focus entirely on the reliability of the underlying technique used to
    generate the challenged opinion, as in Robinson, it is appropriate in cases like this to analyze
    whether the expert’s opinion actually fits the facts of the case. 
    TXI, 306 S.W.3d at 235
    ;
    Volkswagen of Am., Inc. v. Ramirez, 
    159 S.W.3d 897
    , 904–05 (Tex. 2004). In other words, we
    determine whether there are any significant analytical gaps in the expert’s opinion that
    undermine its reliability. 
    TXI, 306 S.W.3d at 235
    .
    Expert testimony is unreliable when “‘there is simply too great an analytical gap between
    the data and the opinion proffered.’” 
    Ledesma, 242 S.W.3d at 39
    (quoting Gen. Elec. Co. v.
    –9–
    Joiner, 
    522 U.S. 136
    , 146 (1997)). Expert testimony is also unreliable if it is not grounded in
    scientific methods and procedures, but is rather based upon subjective belief or unsupported
    speculation. Coastal Transp. Co. v. Crown Cent. Petrol. Corp., 
    136 S.W.3d 227
    , 232 (Tex.
    2004). Expert testimony lacking a proper foundation is incompetent, City of Keller v. Wilson,
    
    168 S.W.3d 802
    , 813 (Tex. 2005), and its admission is an abuse of discretion. Cooper 
    Tire, 204 S.W.3d at 800
    . The court’s ultimate task, however, is not to determine whether the expert’s
    conclusions are correct, but rather whether the analysis the expert used to reach those
    conclusions is reliable and therefore admissible. 
    Zwahr, 88 S.W.3d at 629
    (citing 
    Gammill, 972 S.W.2d at 728
    ).
    McCrory testified by video deposition that she attended the Weatherford Police Academy
    and received training on accident investigation. Bush’s accident was “one of [McCrory’s] first
    major accidents,” and McCrory had a field training officer supervising her and looking over all
    of her final reports, including her report in this case. In response to questioning, McCrory agreed
    that Gaston’s truck required more distance to stop than an ordinary passenger vehicle, and
    Gaston violated the transportation code by failing to keep a safe distance from Bush’s vehicle
    and failing to drive at a speed that would have allowed him to avoid running into Bush’s vehicle.
    McCrory testified she was required to investigate accidents and create accident reports to help
    identify who was at fault in causing collisions. McCrory testified she created the accident report
    in this case as part of her duties as an officer for a public agency. McCrory testified it was
    raining, there was snow on the side of the road, and the speed limit was 55 where the collision
    occurred. When McCrory arrived at the scene, she saw Bush’s truck upside down and Gaston’s
    truck jackknifed “in the bar ditch.” Gaston told McCrory that he did not see the small truck
    ahead of him, and he tried to veer off as soon as he saw it. McCrory testified Gaston did not tell
    her that Bush did anything that caused or contributed to the collision. McCrory testified she
    –10–
    believed the weather conditions contributed to the collision, but if Gaston had controlled his
    speed there would not have been an accident. Based on her conversations at the scene with Bush
    and Gaston, McCrory did not believe Bush was “in any way at fault for causing or contributing
    to the collision.”
    Accident reports are admissible under Rule 803(8) as exceptions to the hearsay rule.     TEX.
    R. EVID. 803(8). Rule 803(8) provides for the admissibility of records, reports, statements, or
    data compilations, in any form, of public offices or agencies setting forth:
    (A) the activities of the office or agency;
    (B) matters observed pursuant to duty imposed by law as to which matters there
    was a duty to report, excluding in criminal cases matters observed by police
    officers and other law enforcement personnel; or
    (C) in civil cases as to any party and in criminal cases as against the state, factual
    findings resulting from an investigation made pursuant to authority granted by
    law;
    unless the sources of information or other circumstances indicate lack of
    trustworthiness.
    TEX.   R. EVID. 803(8). There is no evidence to show a lack of trustworthiness. Thus, the police
    report McCrory prepared was admissible. See 
    id. Further, there
    is no analytical gap between the
    data and the opinions McCrory proffered. See 
    Ledesma, 242 S.W.3d at 39
    . The data was that it
    was dark and raining, there was snow on the side of the road, the collision took place in a
    construction zone where the speed limit was lowered to 55, and the collision consisted of Gaston
    rear-ending Bush’s truck. There was no analytical gap between this data and the opinion that
    Gaston caused the collision by failing to control his speed. See 
    id. The trial
    court did not abuse
    its discretion in admitting McCrory’s report and testimony.
    Smith is a licensed professional engineer specializing in accident investigation, accident
    reconstruction, and biomechanics including analysis of injury, causation, and occupant
    kinematics. Smith testified he has performed over 2300 accident reconstructions, 1500 to 2000
    –11–
    biomechanical analyses, and “over a thousand” analyses of rear impacts. Smith testified GPS
    data “absolutely” plays a role in accident reconstruction and provides information concerning
    speed, “paths vehicles took,” and a vehicle’s starting point. In 1985 or 1986, Smith was “one of
    the first people in the world to use GPS” under the auspices of the Defense Mapping Agency, of
    which Smith was a graduate. Smith testified the MDT used a “differential GPS” system that
    “track[ed] things based on two given locations” and was able to determine speed.            Smith
    reviewed the deposition of Mark Vance, former “director of MDT” at Greenwood, and the MDT
    user manual and mechanic’s manual. Smith reviewed data from the MDT in Gaston’s truck and
    found data missing from “after lunch” on the day of the accident until after the accident at 10:09
    p.m. The data loss occurred exactly at the end of a page, which “didn’t seem right” to Smith.
    Smith testified the odds were “1 and 100 million” of a “catastrophic malfunction” of the MDT
    occurring simultaneously with a page break and a collision.         Thus, Smith contended, the
    “evidence went missing at the hands of” Greenwood.
    Smith also reviewed photographs of the vehicles, “tire marks on the roadways,” “what
    the people had to say about how the collision occurred,” the police report, and medical records.
    Smith also “looked at the scene and the slope of the scene and what the roads are made out of.”
    Smith applied the collected data “to scientific principles and engineering principles in order to
    come up with” his opinions and the animation he created. Smith concluded the damage to
    Bush’s truck was “consistent and indicative of a rear-end collision of high speed.” To the extent
    Smith testified concerning a tarp not covering Bush’s taillights, such testimony merely echoed
    Bush’s own testimony. Further, as Smith stated, the issue of whether Gaston saw Bush’s
    taillights was not relevant because Gaston testified he saw Bush’s truck. In fact, Gaston testified
    Bush’s taillights were not covered by a tarp. Considering Smith’s qualifications and the support
    –12–
    his testimony found in the evidence, we conclude the trial court did not abuse its discretion in
    allowing his testimony. See 
    Auld, 34 S.W.3d at 906
    .
    To the extent Greenwood argues it had no duty to preserve MDT data, Greenwood
    supports this argument by stating it offered evidence that “no data was ever recorded, such that
    there was no evidence to preserve. First, whether or not Greenwood had a duty to preserve, the
    point of Smith’s testimony was that only the data from the time surrounding the accident was
    missing, and this indicated the relevant data had been intentionally removed. Second, Smith
    addressed the issue of the MDT failing to record only at the time surrounding the collision and
    testified the odds were “1 and 100 million” of the failure occurring at the end of a page and at the
    time of a collision. Greenwood further argues it was barred from offering rebuttal evidence that
    would have shown the MDT was “malfunctioning before, at the time of, and after the accident
    due to a power supply problem.” In support of this argument, Greenwood cites several pages of
    the record generally. At one point in the cited pages, the judge states, “I have already excluded
    the notion that [the MDT] didn’t record as the answer, it is possible to advance the notion that it
    is an explanation, but not that here is the answer.” While it is not entirely clear, it appears the
    court’s ruling did not preclude Greenwood from raising the issue that the MDT did not record.
    We find no abuse of discretion. See 
    id. We overrule
    Greenwood’s first issue.
    As to the video animation, we note the video was not admitted into evidence but was
    shown during Smith’s testimony for demonstrative purposes. Defense counsel objected “on the
    grounds of 403.” Smith testified he measured Gaston’s truck and two similar trailers “in order to
    get data to fill in the animation.” It was not possible to “match tire to track,” but Smith made a
    generalized analysis of marks on the roadway he described as an “approximation.” Smith
    testified the animation was not a simulation and “not an exact replication of what happened,” but
    it was “an accurate representation of what occurred.” Earlier in the trial, Smith was allowed to
    –13–
    express his underlying opinion without objection when the testimony was presented to the jury.
    Since the animation was a graphic depiction of the opinion admitted into evidence without
    objection, Greenwood’s trial objection to the video depiction of that opinion was waived. N. Am.
    Van Lines, Inc. v. Emmons, 
    50 S.W.3d 103
    , 130 (Tex. App.—Beaumont 2001, pet. denied).
    Video animation and other demonstrative evidence that “summarize, or perhaps emphasize,
    testimony are admissible if the underlying testimony has been admitted into evidence, or is
    subsequently admitted into evidence.” 
    Id. (quoting Uniroyal
    Goodrich Tire Co. v. Martinez, 
    977 S.W.2d 328
    , 342 (Tex. 1998)). We overrule Gaston’s second issue.
    In its second issue, Greenwood argues the trial court abused its discretion in allowing
    Morgan to testify that Gaston was a “habitual speeder,” he engaged in “pattern logging,” he was
    reckless, and he had a history of rear-end collisions. Greenwood argues Morgan’s testimony
    “failed reliability and relevance, interfered with the trial court’s sole instructing-the-jury-on-the-
    law authority and the jury’s exclusive fact-finding responsibility and was confusing, misleading,
    and unfairly prejudicial.” Greenwood further argues the trial court abused its discretion in
    admitting Morgan’s testimony that Greenwood failed to monitor, train, or supervise Gaston and
    that Greenwood’s failure to follow internal company policies and procedures was “tantamount to
    negligence.”
    Our ultimate task is not to determine whether an expert’s conclusions are correct, but
    rather whether the analysis the expert used to reach those conclusions is reliable and therefore
    admissible. 
    TXI, 306 S.W.3d at 239
    . Upon his graduation from college in 1975, Morgan went to
    work for the U.S. Department of Transportation.          He trained at the Transportation Safety
    Institute in Oklahoma City.       As part of that job, Morgan investigated and reconstructed
    “catastrophic-type commercial motor vehicle accidents and hazardous material accidents.”
    Morgan also performed “safety compliance reviews of all different types of motor carriers and
    –14–
    shippers who shipped or transported hazardous materials.” At the time of trial, Morgan testified
    he had “almost 40 years” of experience with “the laws, the rules, safety rules, and things like
    that, as applied to a trucking company.”
    Morgan reviewed Gaston’s logs relating to a five-month period and testified the logs
    showed “pattern logging” was present: Gaston averaged the same speed every day he drove. The
    presence of pattern logging, he testified should have given Greenwood notice that there might be
    a problem with the logs. Had Greenwood audited the logs and discovered the pattern logging,
    under its policies and procedures it “would warrant disciplinary action up to and including
    termination.” In addition, GPS data Morgan reviewed showed Gaston exceeded 73 miles per
    hour sixty-three times and that was not, in Gaston’s opinion, the driving pattern of a reasonably
    prudent truck driver. Morgan testified it was his opinion that Greenwood improperly entrusted
    to Gaston the tractor-trailer that hit Bush “due to his history.” The record shows Morgan’s
    testimony was based on information maintained by Greenwood and Greenwood’s own policies
    and procedures. We conclude Morgan’s analysis, based on that information, was reliable and
    therefore admissible. See 
    TXI, 306 S.W.3d at 239
    . The trial court, therefore, did not abuse its
    discretion in admitting Morgan’s testimony.       See 
    Auld, 34 S.W.3d at 906
    .        We overrule
    Greenwood’s second issue.
    In its fourth issue, Greenwood argues the trial court erred in admitting the “preventability
    assessments” showing Greenwood determined this accident and accidents in 2003 and 2007 were
    “preventable.” The documents at issue are internal Greenwood-generated documents sent to
    Gaston determining the accidents in question were preventable and asking Gaston to sign either
    in agreement or disagreement with that determination.         The documents were admitted as
    admissions by a party opponent.     Rule 801(e)(2) is straightforward: subject to other Rules of
    Evidence that may limit admissibility, any statement by a party-opponent is admissible against
    –15–
    that party. TEX. R. EVID 801(e)(2); Bay Area Healthcare Grp., Ltd. v. McShane, 
    239 S.W.3d 231
    , 235 (Tex. 2007). Under these circumstances, we conclude the trial court did not abuse its
    discretion in admitting the preventability assessments. See 
    Auld, 34 S.W.3d at 906
    . We overrule
    Greenwood’s fourth issue.
    In its fifth issue, Greenwood argues the trial court erred in allowing Bush’s counsel, in
    his opening statement and during the questioning of a witness, to call Greenwood a “billion-
    dollar corporation.”   The record indicates Bush’s counsel, during his opening statement,
    described Greenwood as a company with “billions of dollars a year in revenue” and a “billion-
    dollar corporation.” During his questioning of Morgan, Bush’s counsel once again identified
    Greenwood as a “billion-dollar company.” Greenwood did not make a timely objection to any of
    the three instances where Bush’s counsel referred to it as a “billion-dollar corporation.”
    Appellate complaints of improper jury argument must be preserved by timely objection and
    request for an instruction that the jury disregard the improper remark. TEX. R. APP. P. 33.1;
    Phillips v. Bramlett, 
    288 S.W.3d 876
    , 883 (Tex. 2009). Because Greenwood’s objections were
    not timely, we conclude this issue is not preserved for our review. 
    Phillips, 288 S.W.3d at 883
    .
    We overrule Greenwood’s fifth issue.
    In his fourth issue, Gaston argues the trial court abused its discretion in admitting a
    “summary” of Gaston’s testimony. Specifically, Gaston argues the admission of an exhibit
    summarizing his testimony violates rule of evidence 1006, which provides for the admission of
    summaries of voluminous materials. TEX. R. EVID. 1006. However, Gaston’s counsel objected
    to the admission of the summary by saying “It’s not evidence. He’s testified.” Because Gaston
    did not raise his complaint regarding rule 1006 at trial, he has not preserved this issue for our
    review. See TEX. R. APP. P. 33.1(a)(1); Keith v. Wells Fargo Bank, N.A., 
    285 S.W.3d 588
    , 590
    (Tex. App.—Dallas 2009, no pet.). We overrule Gaston’s fourth issue.
    –16–
    In his fifth issue, Gaston argues the trial court abused its discretion by excluding video
    and photographic materials his expert, Robert Swint, relied upon in forming his opinions. Swint
    testified he had been involved in “between 700 and 1000” tractor-trailer accidents. Swint
    testified he saw no evidence of a rear impact between a tractor trailer and Bush’s truck. Gaston’s
    counsel stated he had some “short videos” about testing Swint performed with the Minnesota
    Department of Transportation and photographs of a pickup truck involved in a rear-end collision.
    The trial court questioned defense counsel and determined the testing “was not done in relation
    to this accident,” and the photograph was “not the same pickup truck, make and model, as
    involved in the Bush Gaston accident.” The trial court concluded the videos and photographs
    were “not relevant based on [their] dissimilarity to the case at bar.” Gaston does not dispute that
    the videos and photographs did not depict the same or similar vehicles involved in the accident in
    this case. See U-Haul Int’l, Inc. v. Waldrip, 
    380 S.W.3d 118
    , 137 (Tex. 2012) (concluding
    expert testimony not sufficiently similar to truck at issue distracted jury). We conclude the trial
    court did not abuse its discretion in excluding the videos and photographs. See 
    Auld, 34 S.W.3d at 906
    . We overrule Gaston’s fifth issue.
    Gaston further argues the trial court abused its discretion in excluding evidence of
    Gaston’s good driving record after the accident. Gaston made an offer of proof that he had not
    had “any speeding tickets or accidents since December 5, 2011.” The trial court excluded this
    testimony as “irrelevant.” We agree. Gaston has not demonstrated in what way Gaston’s driving
    record following the accident was relevant to the issues arising out of the accident itself. The
    trial court did not abuse its discretion in excluding this evidence. See 
    id. In his
    sixth issue, Gaston argues the trial court abused its discretion in admitting evidence
    of prior bad acts allegedly committed by Gaston.           Specifically, Gaston complains of the
    admission of evidence regarding a speeding ticket he received in his personal vehicle, his
    –17–
    disciplinary record, allegations of pattern logging, and accidents allegedly occurring in 2003 and
    2007. One of Bush’s theories was that Greenwood negligently entrusted the tractor trailer to
    Gaston. One issue in determining negligent entrustment was whether Greenwood knew or
    should have known that Gaston was unlicensed, incompetent, or reckless.             Schneider v.
    Esperanza Transmission Co., 
    744 S.W.2d 595
    , 596 (Tex. 1987). Thus, the complained-of
    evidence of bad acts were relevant to Greenwood’s knowledge of Gaston’s recklessness. See 
    id. The trial
    court did not abuse its discretion in admitting this evidence. See 
    Auld, 34 S.W.3d at 906
    .
    In his seventh issue, Gaston argues the trial court abused its discretion by “allowing Bush
    to make an improper and prejudicial argument about the details of a prior case involving Robert
    Swint and Appellants’ counsel.” On cross-examination, Bush’s counsel asked Swint about his
    expert testimony in another case involving the issue of “a phantom truck appearing out of
    nowhere and killing somebody.” Swint answered that “The phantom truck didn’t kill anybody.”
    Counsel asked whether Swint’s testimony “involved some phantom truck.” Swint answered that
    “there was testimony to that,” and his opinion was the accident in that case was consistent with
    someone “not falling asleep but avoiding an event. And that was consistent with a phantom
    vehicle.” Counsel asked if it was “the phantom vehicle that caused it in [his] opinion,” and
    Swint answered, “I think so.” Defense counsel did not object to this line of questioning.
    In his closing argument, Bush’s counsel again referred to the “phantom truck that killed
    the preacher” and stated Swint “testified about a phantom truck six weeks ago.” Defense counsel
    objected that this was outside the record and had nothing to do with this case, and constituted
    improper argument. The trial court stated, “I believe that he testified about another case” and
    instructed Bush’s counsel to “move along.” Bush’s counsel again stated that “the phantom truck
    came up six weeks ago,” and defense counsel addressed the court. The trial court told defense
    –18–
    counsel “he testified about that,” and concluded, “Overruled.” Once the evidence was in the
    record—without objection or a request that it be stricken or that the jury be instructed to
    disregard—it was in for all purposes and a proper subject of closing argument. In re Toyota
    Motor Sales, U.S.A., Inc., 
    407 S.W.3d 746
    , 760 (Tex. 2013). Thus, the trial court did not abuse
    its discretion in allowing Bush’s counsel to raise the “phantom truck issue” in closing argument.
    See id.; 
    Auld, 34 S.W.3d at 906
    . We overrule Gaston’s seventh issue.
    In Gaston’s first issue and Greenwood’s third issue, they attack the legal and factual
    sufficiency of the evidence to support the jury’s verdict. Specifically, Gaston challenges (1) the
    jury’s finding that the harm to Bush resulted from gross negligence committed by Gaston and
    attributable to Greenwood and (2) the jury’s findings that Gaston’s negligence proximately
    caused the occurrence in question, Bush’s negligence did not proximately cause the occurrence,
    and Gaston was 100% responsible for the occurrence. Greenwood also challenges the jury’s
    finding regarding gross negligence and the findings that Greenwood’s negligence proximately
    caused the occurrence under negligent entrustment, negligent supervision/retention, and
    negligent training theories. Neither Gaston nor Greenwood challenges the sufficiency of the
    evidence to support Bush’s actual damages.
    We note Greenwood also argues “The Separation of Powers Doctrine proscribes an
    imposition of exemplary damages in the current circumstances.” However, Greenwood fails to
    support this two-paragraph argument with any citation to the record or to legal authority. Failure
    to cite applicable authority or provide substantive analysis waives an issue on appeal. Huey v.
    Huey, 
    200 S.W.3d 851
    , 854 (Tex. App.—Dallas 2006, no pet.). Accordingly, we will not further
    address this argument.
    When a party attacks the legal sufficiency of an adverse finding on an issue on which the
    party has the burden of proof, such as whether Bush’s negligence proximately caused the
    –19–
    occurrence, the party must demonstrate on appeal that the evidence establishes, as a matter of
    law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 
    46 S.W.3d 237
    , 241 (Tex.
    2001). When a party attacks the legal sufficiency of the evidence on which the party did not
    have the burden of proof, such as whether Gaston was grossly negligent and his gross negligence
    was attributable to Greenwood, the party must demonstrate that there is no evidence to support
    the adverse findings. Croucher v. Croucher, 
    660 S.W.2d 55
    , 58 (Tex. 1983); EMC Mortg. Co. v.
    Jones, 
    252 S.W.3d 857
    , 866 (Tex. App.—Dallas 2008, no pet.). In reviewing a no evidence
    challenge, we consider the evidence “in the light most favorable to the verdict, crediting
    favorable evidence if reasonable jurors could, and disregarding contrary evidence unless
    reasonable jurors could not.” City of 
    Keller, 168 S.W.3d at 807
    ; 
    Jones, 252 S.W.3d at 866
    . We
    are not permitted to weigh the evidence or make credibility determinations. 
    Jones, 252 S.W.3d at 866
    . The jury’s finding on an issue may be upheld on circumstantial evidence as long as it
    may fairly and reasonably be inferred from the facts. 
    Id. If there
    is more than a scintilla of
    evidence to support the finding, the no evidence challenge fails. 
    Id. When an
    appellant challenges the factual sufficiency of the evidence on an issue, we
    consider all the evidence supporting and contradicting the finding. Fulgham v. Fischer, 
    349 S.W.3d 153
    , 157-58 (Tex. App.—Dallas 2011, no pet.) (citing Plas–Tex, Inc. v. U.S. Steel Corp.,
    
    772 S.W.2d 442
    , 445 (Tex. 1989)). We set aside the finding for factual insufficiency only if the
    finding is so contrary to the evidence as to be clearly wrong and manifestly unjust. 
    Id. (citing Cain
    v. Bain, 
    709 S.W.2d 175
    , 176 (Tex. 1986) (per curiam)). The factfinder is the sole judge of
    the credibility of the witnesses. 
    Id. As long
    as the evidence falls “within the zone of reasonable
    disagreement,” we will not substitute our judgment for that of the fact-finder. 
    Id. (quoting City
    of 
    Keller, 168 S.W.3d at 822
    ).
    –20–
    In reviewing an award for exemplary damages, we conduct a legal sufficiency review
    under the “clear and convincing” evidence standard. 
    Waldrip, 380 S.W.3d at 137
    (citing S.W.
    Bell Telephone Co. v. Garza, 
    164 S.W.3d 607
    , 
    609 Tex. 2004
    )). “Clear and convincing’ means
    the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or
    conviction as to the truth of the allegations sought to be established.” TEX. CIV. PRAC. & REM.
    CODE ANN. § 41.001(2); In re J.F.C., 
    96 S.W.3d 256
    , 264 (Tex. 2002). Gross negligence
    consists of both objective and subjective elements. See Lee Lewis Constr., Inc. v. Harrison, 
    70 S.W.3d 778
    , 785 (Tex. 2001). Plaintiffs must prove by clear and convincing evidence that 1)
    when viewed objectively from the defendant’s standpoint at the time of the event, the act or
    omission involved an extreme degree of risk, considering the probability and magnitude of the
    potential harm to others and 2) the defendant had actual, subjective awareness of the risk
    involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare
    of others. See id.; TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(11) (West Supp. 2015); State v.
    Shumake, 
    199 S.W.3d 279
    , 287 (Tex. 2006).
    Under the objective component, “extreme risk” is not a remote possibility or even a high
    probability of minor harm, but rather the likelihood of the plaintiff's serious injury. Mobil Oil
    Corp. v. Ellender, 
    968 S.W.2d 917
    , 921 (Tex. 1998); 
    Harrison, 70 S.W.3d at 785
    .                The
    subjective prong, in turn, requires that the defendant knew about the risk, but that the defendant’s
    acts or omissions demonstrated indifference to the consequences of its acts. La.-Pac. Corp. v.
    Andrade, 
    19 S.W.3d 245
    , 246–47 (Tex. 1999); Wal–Mart Stores, Inc. v. Alexander, 
    868 S.W.2d 322
    , 326 (Tex. 1993).
    Both Gaston and Greenwood premise their sufficiency challenges on the exclusion of
    McCrory’s, Smith’s, and Morgan’s testimony, arguing their testimony constituted “no evidence.”
    We have already concluded the trial court did not abuse its discretion in admitting the testimony
    –21–
    of McCrory, Smith, and Morgan. The record shows Bush testified she was driving “a few”
    below the speed limit in the right lane when Gaston rear-ended her truck, causing it to flip over
    and injuring her. Gaston admitted rear-ending Bush. Greenwood stipulated that Greenwood was
    Gaston’s “statutory employer” and there was “no dispute about the respondeat superior,
    Greenwood for Gaston.”
    McCrory testified Gaston violated the transportation code by failing to keep a safe
    distance from Bush’s vehicle and failing to drive at a speed that would have allowed him to
    avoid running into Bush’s vehicle. Based on her conversations at the scene with Bush and
    Gaston, McCrory did not believe Bush was “in any way at fault for causing or contributing to the
    collision.” We conclude this evidence was legally and factually sufficient to support the jury’s
    findings that Gaston’s negligence proximately caused the occurrence in question, Bush’s
    negligence did not proximately cause the occurrence, and Gaston was 100% responsible for the
    occurrence. 
    Jones, 252 S.W.3d at 866
    ; 
    Fulgham, 349 S.W.3d at 157-58
    .
    Regarding the jury’s gross negligence finding, the evidence showed it was raining and
    there was snow by the side of the road when the accident occurred at approximately 9:30 p.m. in
    a construction zone where the speed limit was reduced to 55 miles per hour. GPS data Morgan
    reviewed showed Gaston had exceeded 73 miles per hour sixty-three times previously, and
    McCrory testified if Gaston had controlled his speed there would not have been an accident.
    Gaston was not qualified to operate the “doubles” he was driving. Twice before, in 2003 and
    2007, Gaston had rear-ended other vehicles. Greenwood was aware of both prior accidents and
    determined both accidents were “preventable.” Gaston engaged in “pattern logging,” and this
    should have given Greenwood “notice that there may be a problem with these logs.” Morgan
    testified it was his opinion that Greenwood improperly entrusted to Gaston the tractor-trailer that
    hit Bush “due to his history.” We conclude this evidence was legally and factually sufficient to
    –22–
    prove by clear and convincing evidence that Gaston was grossly negligent in the operation of his
    truck and that Greenwood was grossly negligent in entrusting the truck to Gaston, failing to
    supervise him, retaining him as a driver, and failing to adequately train him. See 
    Harrison, 70 S.W.3d at 785
    ; 
    Jones, 252 S.W.3d at 866
    ; 
    Fulgham, 349 S.W.3d at 157-58
    . We overrule
    Gaston’s first issue and Greenwood’s third issue.
    We affirm the trial court’s judgment.
    /David L. Bridges/
    DAVID L. BRIDGES
    JUSTICE
    141148F.P05
    –23–
    S
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    GREENWOOD MOTOR LINES, INC.                          On Appeal from the 298th Judicial District
    D/B/A R+L CARRIERS AND STEVEN C.                     Court, Dallas County, Texas
    GASTON, Appellants                                   Trial Court Cause No. DC-11-16041-M.
    Opinion delivered by Justice Bridges.
    No. 05-14-01148-CV         V.                        Justices Stoddart and O'Neill participating.
    BOBBIE BUSH, Appellee
    In accordance with this Court’s opinion of this date, the judgment of the trial court is
    AFFIRMED.
    It is ORDERED that appellee BOBBIE BUSH recover her costs of this appeal from
    appellant GREENWOOD MOTOR LINES, INC. D/B/A R+L CARRIERS AND STEVEN C.
    GASTON.
    Judgment entered August 17, 2016.
    –24–