Whirlpool Corp. v. Camacho, 251 SW3d 88 (Tex.App.- Corpus Christi 2008, pet granted)  

WHIRLPOOL CORPORATION, Appellant,
v.
Margarita CAMACHO and Santos Camacho, Individually and on Behalf of the Estate of Joab Camacho,
Deceased, and as Next Friend of Asael Camacho and Abisai Camacho, and Salvador Gonzalez, Appellees.

No.
13-05-00361-CV,

Court of Appeals of Texas, Corpus Christi-Edinburg.

January 17, 2008.

Before Chief Justice VALDEZ and Justices HINOJOSA[1] and GARZA.

OPINION

Opinion by Chief Justice VALDEZ.

The underlying suit is a products liability design defect case arising out of a fire that allegedly started in a
Whirlpool dryer. The fire consumed a home and killed Joab Camacho, a minor. Appellees, and plaintiffs in the
court below, are Margarita, Joab's mother; Santos, Joab's father; and Joab's brothers Salvador, Asael, and
Abisai.[2] Appellant Whirlpool Corp. ("Whirlpool") appeals from a judgment based on a jury verdict finding it one
hundred percent liable for Joab's death and assessing $14 million in damages. By five issues, Whirlpool
contends that (1) the evidence of a design defect is legally insufficient, (2) the plaintiffs intentionally spoliated
the fire scene, (3) the jury's finding of no contributory negligence is legally and factually insufficient, (4) the
damages awarded are not supported by the evidence, and (5) appellee's counsel made improper jury
arguments. We affirm.

I. BACKGROUND

The Camachos' suit alleges that a defectively designed clothes dryer manufactured by Whirlpool caused a fire
that burned down their home and led to Joab's death. Before the fire, the Camachos lived in a fourteen by sixty-
five foot trailer home near Weslaco, Texas. Joab's bedroom was on the eastern end of the home adjacent to the
laundry room. Sometime during the early morning hours of February 11, 2003, a fire started in or underneath
the laundry room. The fire completely destroyed the Camachos' home and killed Joab. Margarita and Santos
Camacho, Joab's parents, and Asael, Abisai, and Salvador, Joab's brothers, brought a defective design suit
against Whirlpool.[3]

At trial, evidence was presented regarding: (1) events occurring before, during, and after the fire; (2) the design,
operation, and safety of the dryer; and (3) the nature and quality of the relationships that individual members of
the Camacho family had with Joab.

A. Events Surrounding the Fire

Margarita Camacho testified at trial that on the evening of February 10, 2003, she was washing and drying
clothes, and that sometime late in the evening the dryer finished drying a few t-shirts. Margarita opened the
dryer door, sat in the living room, and dozed off to sleep. She awoke to the smell of smoke and discovered 94
flames coming from the dryer, which was located along a hallway that led to Joab's bedroom. Margarita
screamed that the house was on fire in order to wake-up the rest of the family. Salvador, Joab's older brother,
woke up and helped get Asael and Abisai, Joab's younger brothers, out of the home. Santos, Joab's father, tried
to go to Joab's room, but could not proceed through the hallway because of the strength of the flames coming
from the dryer. Joab was the only member of the Camacho family who did not escape.

Salvador testified that he tried re-entering the home through the living room to retrieve Joab, but the smoke was
too intense and hot. He then went around the home on the outside and tried to enter Joab's room through a
window, but could not make it inside because of the intense smoke and heat. Salvador called out to Joab and
heard him asking for help in a mumbling and tired fashion. Santos tried to enter Joab's bedroom window as well,
but he was nearly overcome by the smoke and heat. The Weslaco fire department was called to the scene at 1:
26 a.m.

Fire Marshal Arturo Gayton, Jr. arrived at the scene a few hours after the Weslaco fire department was called.
He was notified that there was a fatality and immediately began an investigation. According to Gayton's
testimony, a fire is first investigated for any criminal activity. Gayton surveyed the home and found no signs of an
accelerant. He determined that the fire was accidental and originated in the laundry room based on severity of
damage to that portion of the home.

B. The Camacho's Expert Testimony

Ed Sanchez testified for the Camachos regarding the origin of the fire. Sanchez began examining the Camacho
property on February 12, 2003 and continued to investigate the origin of the fire for several days. Sanchez
thoroughly examined the Camachos' home and property and catalogued the debris by saving it in bins and
photographing the scene. Sanchez's investigation also included the use of dogs trained to sniff for accelerants.

Sanchez testified that the fire originated in the dryer. Sanchez based his testimony on the amount and character
of damage sustained to the laundry room as compared to the remainder of the home. Sanchez testified that the
portion of the home that sustains the most damage is likely where the fire originates and that the laundry room
sustained the most damage.

He examined the wiring and flooring in the laundry room. The wiring did not show signs of "arching," which would
occur if there were an electrical short. Sanchez therefore excluded an electrical short as the cause of the fire.
The laundry room was heavily damaged, except for a 2.5-by-2.5 foot square that was not burned. According to
Sanchez's testimony, the unburned square indicates that this area was protected from damage by the dryer.
Sanchez also opined that the relatively good condition of the square indicates that the fire did not originate
underneath the laundry room.

Sanchez's testimony also addressed the use of gas as a possible cause of the fire. Sanchez testified that trained
dogs alerted to the presence of a gas tank in a car near the Camacho home. Sanchez, however, believed that
the tank's integrity had been compromised by the fire, and he ruled out the use of an accelerant as a cause of
the fire.

Judd Clayton, an electrical engineer, also testified for the Camachos that the dryer was the cause of the fire.
Clayton examined the dryer that was used in the Camacho home (the "incident dryer") as well as an exemplar
model that was provided 95 to him. He noted that there were no electrical problems with the wiring going to the
dryer. Clayton testified that when wiring melts during an electrical fire, the electrical activity would create "almost
pinpoint damage," which was not present in the instant case. Clayton's testimony regarding the fire's origin within
the dryer relied in part on the Consumer Product Safety Commission's Report on Lint Fires ("CPSC Report").
The trial court admitted the CPSC Report over Whirlpool's objections. Clayton found burned lint in the exemplar
dryer, which he stated was a result of lint leaking out between the air chute and the blower housing.

According to Clayton, the Whirlpool dryer used by the Camachos leaked lint into the machinery. Clayton testified
that lint is combustible and that, if ignited, it could create an ember that could travel into a load of laundry in the
dryer drum. Clayton opined that the corrugated tube used in the incident dryer traps lint. He claimed that
Whirlpool could have improved its dryer design by using a smooth tube, using better seals, and installing a
screen to trap lint in the dryer's machinery before lint could reach the heater box.

C. Whirlpool's Expert Testimony

John Adams gave expert engineering testimony for Whirlpool. Adams testified that he did not believe that the
dryer caught on fire. He testified that when a dryer drum catches on fire, it exhibits a "V" burn pattern on the
outside and a horizontal line showing where the fire pushed up to the top of the drum. Adams observed that the
incident dryer did not have the burn patterns that Adams believed are characteristic of a dryer drum fire. Adams
also testified that the Camachos' lint ignition theory was not plausible as lint burns very quickly and moves fast
through the heating element. With regard to Clayton's suggestion to place a screen in the dryer's machinery to
catch lint before it enters the heating element, Adams claimed such an alteration would cause lint to accumulate,
and the accumulated lint would either catch on fire or slow down the airflow within the dryer.

Another Whirlpool expert witness was Roger Owens, a forensics and fire cause and origin expert. Owens
testified that he believed the cause of the fire was either electrical or accelerant based. Owens testified that
extension cords powered much of the home. He opined that the condition of the wires was bad and that the fire
was started by an electrical malfunction or an accelerant.

Whirlpool also presented testimony on its internal safety and quality control testing.

D. Jury Charge & Final Judgment

The case was submitted to the jury on a products liability theory. The jury answered "yes" to the question of
whether Whirlpool defectively designed the Camachos' dryer. It did not find any negligence on the part of
Margarita, Santos, or Salvador and, therefore, found that Whirlpool was one hundred percent responsible for
Joab's death. The jury awarded Margarita, Santos, and Salvador $3 million each in past and future damages.
Asael and Abisai were each awarded $500,000 in past and future damages. Finally, the jury awarded $4 million
to Joab's estate for pain, suffering, mental anguish, and expenses. Whirlpool timely filed the instant appeal.

II. LEGAL SUFFICIENCY

By its first issue, Whirlpool challenges the legal sufficiency of the jury's verdict on the Camachos' design defect
cause of action. TEX.R.APP. P. 38.1(e) (providing that the statement of an issue will be treated as 96 covering
every subsidiary question that is fairly included). In five sub-issues, Whirlpool argues that (1) the Camachos'
expert testimony did not satisfy relevancy and reliability requirements; (2) the trial court committed reversible
error in admitting the CPSC Report; (3) the trial court erred in admitting the exemplar dryer and related
testimony because the usage history and condition of the exemplar bore no relation to the incident dryer; (4)
Whirlpool conclusively established that the plaintiff's design defect theory is impossible; and (5) there is legally
insufficient evidence of a safer alternative design.

Whirlpool's first three sub-issues deal with the admissibility of evidence. We will discuss them first and
individually. Then, we will address Whirlpool's fourth and fifth sub-issues by reviewing the legal sufficiency of the
record with regard to the design defect cause of action.

A. The Camachos' Expert Testimony

Whirlpool's challenge to the Camachos' expert testimony is couched in both the Robinson-factor analysis[4] and
the "analytical gap" test.[5] Allstate Tex. Lloyds v. Mason, 123 S.W.3d 690, 697-98 (Tex.App.-Fort Worth 2003,
no pet.) (noting that the supreme court has crafted two tests to guide trial courts in accessing reliability).
Although Whirlpool cites Robinson numerous times, it devotes just over two pages of a fifty-page brief to the six
Robinson factors. Instead, it challenges Clayton's testimony as allegedly resting on multiple untested
assumptions. We therefore find that Whirlpool's argument primarily relies on the analytical gap test. Gammill v.
Jack Williams Chevrolet, 972 S.W.2d 713, 722 (Tex.1998). We also find that the analytical gap test is the
appropriate way to analyze the Camachos' expert testimony because such testimony in the instant case is based
on the experience of the testifying experts. See Brandt v. Surber, 194 S.W.3d 108, 131 (Tex.App.-Corpus Christi
2006, pet. denied).

1. Standard of Review

We review the trial court's decision to admit or exclude expert evidence for an abuse of discretion. State Farm
Fire & Cas. Co. v. Rodriguez, 88 S.W.3d 313, 318 (Tex.App.-San Antonio 2002, pet. denied); see Guadalupe-
Blanco River Auth. v. Kraft, 77 S.W.3d 805, 810 (Tex.2002). A trial court does not abuse its discretion merely
because a reviewing court in the same circumstances would have ruled differently. E.I. du Pont de Nemours &
Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
242 (Tex.1985). The trial court abuses its discretion if its decision was arbitrary or unreasonable without regard
to guiding rules and principles. Downer, 701 S.W.2d at 241-42.

97 We will reverse based on the erroneous admission or exclusion of evidence only if the appellant shows error
that was calculated to cause, and probably did cause, the rendition of an improper judgment. TEX. R.APP. P.
44.1(a); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995); Doncaster v. Hernaiz, 161 S.W.3d
594, 601 (Tex.App.-San Antonio 2005, no pet.) ("[E]rror on questions of evidence is generally not reversible
unless the appellant can show that the whole case turns on the particular evidence admitted or excluded.").

2. Applicable Law

Expert testimony must be relevant to the issues in a case and be based on a reliable foundation. TEX.R. EVID.
702; Robinson, 923 S.W.2d at 553. The trial court must make an initial determination of whether the expert's
testimony is relevant and reliable so as to be admissible. Robinson, 923 S.W.2d at 557; Gross v. Burt, 149 S.W.
3d 213, 237 (Tex.App.-Fort Worth 2004, pet. denied) (op. on reh'g). Scientific expert testimony is reliable if it is
"grounded `in the methods and procedures of science' [otherwise it] is no more than `subjective belief or
unsupported speculation.'" Robinson, 923 S.W.2d at 557 (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.
S. 579, 590, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)).

The Texas Supreme Court has recognized that "[e]xperience alone may provide a sufficient basis for an expert's
testimony" unless there is "too great an analytical gap between the data and the opinion proffered." Gammill,
972 S.W.2d at 726-27; see Mack Trucks v. Tamez, 206 S.W.3d 572, 579 (Tex.2006) ("We recognized [in
Gammill] that the criteria for assessing reliability must vary depending on the nature of the evidence."). An
impermissible analytical gap exists if an expert "has offered nothing to suggest that what he believes could have
happened actually did happen," because in that case "[h]is opinions are little more than `subjective belief or
unsupported speculation.'" Gammill, 972 S.W.2d at 727-28 (citing Robinson, 923 S.W.2d at 557). The critical
inquiry is whether there is an "analytical gap" between the opinion and the basis on which it is founded. Id. at
726. The proponent of the expert testimony bears the burden of demonstrating that its expert is qualified under
Rule 702. Robinson, 923 S.W.2d at 557.

3. Analysis

Whirlpool argues that Clayton's testimony regarding how the fire originated in the dryer is unreliable.[6] Clayton
holds a bachelor's of science degree in engineering and has worked in the field of engineering consulting since
1977. He has professional engineering experience in ensuring facilities are compliant with the Occupational
Safety and Hazards Act. He has also received training in fire cause and origin. Of the approximately 2,800 fires
Clayton has investigated, he has inspected hundreds of dryers that were suspected of starting on fire.

Clayton's in-court testimony was based on his experience, review of relevant literature, and his examination of
the incident 98 dryer and an exemplar dryer, which was the same make and model as the one used by the
Camachos. Clayton examined the wiring going to the dryer and the wiring in the dryer. He did not find any
indication that the fire's origin was electrical. Instead, Clayton's professional opinion was that the fire originated
in the dryer. He posited that lint from the dryer ignited, creating embers that entered the dryer drum; this ignited
the load of laundry and led to the fire escaping from the dryer drum. Whirlpool attacks these three statements by
calling them premises that do not withstand Daubert/Robinson scrutiny. BRIEF OF APPELLANT at 16, Whirlpool
Corp. v. Margarita Camacho, et al., No. 13-05-361-CV (Tex.App.-Corpus Christi, Feb. 17, 2006). It contends that
these are three distinct theories and implicitly argues that each individual theory must be supported by its own
set of independent objective evidence. But see Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)
("Although no witness could conclusively state that the product was the cause, the jury could have made that
determination from circumstantial evidence").

Clayton's testimony regarding the presence of lint and its possible ignition is supported by an examination of the
exemplar dryer, which revealed lint in the dryer cabinet.[7] Clayton noticed that the corrugated air transport tube
(the "corrugated tube") used in the Camacho dryer caused lint to become trapped in the tube, interfere with the
dryer's airflow, and thereby allow lint to escape from the tube into the dryer cabinet. He posited that a smooth air
transport tube would not allow lint to become trapped in the same manner as the corrugated tube. Moreover,
Clayton's examination of the incident dryer revealed burnt lint underneath the heating element. Clayton's lint
ignition testimony is based on an objective observation of lint build-up in the dryer cabinet.

Independent observations supported Clayton's testimony regarding how an ember survived to ignite the clothes
in the dryer and then spread from the dryer. Admitted into evidence were partially charred t-shirts that were in
the dryer. Alcohol, Tobacco, and Firearms Special Agent Kevin Savage concluded in a report that "[t]here was
severe damage to the interior of the [dryer] and the interior of the drum." Sanchez testified that the damage to
the laundry room showed that the fire could not have started beneath the dryer, because a 2.5-by-2.5 foot
square where the dryer sat was undamaged. Sanchez opined that the dryer protected the surface that it sat on
as the fire spread from it. Additionally, Sanchez concluded that the fire could not have started underneath the
home because fire burns in an upward direction and so a fire starting underneath the home would have
damaged the portion of the floor where the dryer sat.

Clayton and Sanchez relied on objective criteria in the record and their own experience to conclude that the
dryer caused the fire. While Whirlpool may disagree with their conclusions, the experts explained the basis for
their opinions and based those opinions on objective facts. We therefore hold that the trial court did not abuse
its discretion in admitting the expert testimony of Clayton and Sanchez. See Downer, 701 S.W.2d at 241-42.
Whirlpool's first sub-issue is overruled.

B. Admission of the CPSC Report

By its second sub-issue, Whirlpool contends that the trial court erred in admitting 99 the CPSC Report because
the report was irrelevant and highly prejudicial. As noted supra, we review a trial court's decision to admit
evidence under an abuse of discretion standard. Rodriguez, 88 S.W.3d at 318. Relevant evidence is evidence
having any tendency to make the existence of any fact of consequence to the determination of the action more
probable or less than it would be without the evidence. TEX.R. EVID. 401. To be relevant, in other words, the
proposed testimony must be sufficiently tied to the facts of the case that it will aid the jury in resolving a factual
dispute. Gammill, 972 S.W.2d at 720.

Whirlpool argues that the CPSC Report was inadmissible because the testing performed therein was highly
technical and did not focus on real-world function. Additionally, Whirlpool argues that the report's statement that
"[t]his report should not be used to suggest that current clothes dryers are unsafe or defective," necessitated its
exclusion from evidence.

We disagree with Whirlpool's contention that the report was irrelevant. It contains diagrams of how air flows
through a dryer model similar to the incident dryer, how lint accumulates on various parts of the dryer, and how
lint can start on fire while passing over the heating element. The evidence appears relevant and does not
appear to be unduly prejudicial. The statement that Whirlpool so ardently complains of was evidence for the jury
to consider along with all the other evidence. No abuse of discretion is found with the admission of the CPSC
Report. Whirlpool's second sub-issue is overruled.

C. Admission of the Exemplar Dryer

By its third sub-issue, Whirlpool argues that the trial court abused its discretion in admitting the exemplar dryer
because it was not used in a similar manner as the incident dryer. Whirlpool argues that the Camacho dryer was
infrequently used and properly vented. In contrast, the exemplar model was frequently used and not properly
vented.

"[E]vidence of other accidents involving the same product is generally admissible to show its dangerous or
hazardous nature, if the accidents occurred under the same or substantially similar conditions as that involving
the plaintiff, and with reasonable proximity in time." Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 340-
41 (Tex.1998). Whirlpool urges us to focus the substantially similar analysis on the external conditions brought
to bear upon the dryer. However, the substantially similar test allows the admission of other incidents that must
have occurred under reasonably similar (though not necessarily identical) conditions. Id. at 341. The
substantially similar condition is the mechanical inner workings of the dryer. Clayton's testimony was that the
corrugated tube and lack of a screen were what led to lint leakage, not the frequency and ventilation of the
dryer. Whirlpool did not present any evidence that the exemplar dryer's air transport tube or heating element
were substantially different than the incident dryer's parts.

We hold that the trial court did not abuse its discretion in admitting the exemplar dryer. Whirlpool's third sub-
issue is overruled.[8]

D. Conclusiveness of Whirlpool's Evidence

By its fourth sub-issue, Whirlpool argues that it conclusively disproved the 100 plaintiff's theory that the dryer
was the cause of the fire. It argues that its expert testimony conclusively establishes the opposite of a vital fact.
BRIEF OF APPELLANT at 24-25; 27-28; see City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005).

1. Standard of Review

In conducting a legal sufficiency review, we credit evidence supporting the judgment if reasonable jurors could
and disregard contrary evidence unless reasonable jurors could not. City of Keller, 168 S.W.3d at 827. We will
sustain a legal sufficiency, or no-evidence, point if the record reveals one of the following: (1) the complete
absence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only
evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or
(4) the evidence established conclusively the opposite of the vital fact. See Martinez, 977 S.W.2d 328 at 334. If
more than a scintilla of evidence exists, it is legally sufficient. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778,
782 (Tex.2001). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for
differing conclusions by reasonable minds about a vital fact's existence. Id. at 782-83.

2. Analysis

Whirlpool argues that Adams's testimony conclusively disproved the plaintiff's theory that the fire originated in
the dryer. Adams testified that the dryer would not have enough suction power to draw lint from the lint chute into
the heater box. Adams also testified that when lint is intentionally thrown onto the heating element, it travels so
quickly that it is impossible to ignite. Adams's testimony was buttressed by videotaped testing conduct by
Whirlpool. Additionally, Whirlpool directs us to (1) the fact that the shirts inside the dryer drum were not totally
consumed by the fire and (2) Adams's expert testimony that the burn patterns were not consistent with the fire
starting in the dryer drum and then spreading out.

While Whirlpool's expert testimony may be plausible, it is not conclusive. Photographs were admitted into
evidence showing what Clayton claimed was charred lint inside the heating element of the exemplar dryer. This
evidence contradicts Adams's testimony that lint could not be pulled into the heating element and charred.
Sanchez testified that the shirts were not consumed by the fire because of the "phonebook effect," whereby a
fire burns the outside of some object but does not burn the inside because there is not enough oxygen on the
inside of the object. Sanchez also testified that the condition of the laundry room, including its floor, is consistent
with the fire starting in the dryer. Moreover, Margarita testified that she saw flames coming from the dryer.

Whirlpool, thus, has not shown that it conclusively disproved the Camacho's theories. Whirlpool's fourth sub-
issue is overruled.

E. The Camachos' Evidence of a Safer Alternative Design

Whirlpool's fifth and final sub-issue is that there was legally insufficient evidence of a safer alternative design. In
addition to proving that a product is unreasonably dangerous, a plaintiff must prove that (1) there was a safer
alternative design, (2) the safer alternative design would have prevented or significantly reduced the risk of
injury without substantially impairing the product's utility, and (3) the safer alternative design was both
technologically and economically feasible when it left the manufacturer's control. TEX. CIV. PRAC. & REM.CODE
ANN. 101 § 82.005(a)-(b) (Vernon 2005); Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 588 (Tex.1999). To
establish the existence of a safer alternative design, a plaintiff must show that the alternative design would not,
under other circumstances, impose an equal or greater risk of harm. Martinez, 977 S.W.2d at 337. The safety
benefits from the proposed design must be "foreseeably greater than the resulting costs, including any
diminished usefulness or diminished safety." Id.; Costilla v. Crown Equip. Corp., 148 S.W.3d 736, 739 (Tex. App.-
Dallas 2004, no pet.).

Whirlpool argues that Clayton's testimony alone cannot prove the existence of a safer alternative design. See
Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999) ("An expert's simple ipse dixit is insufficient to establish a
matter; rather, the expert must explain the basis of his statements to link his conclusions to the facts."); Gammill,
972 S.W.2d at 726-27; see Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex.
2004).

Clayton, the Camachos' expert, opined that Whirlpool could have improved the design of its dryer by (1)
strengthening the connection to the air transport tube, (2) changing from a corrugated air transport tube to a
smooth tube, and (3) installing a filter in the dryer cabinet to prevent lint from leaking into the heating element.
Furthermore, Clayton testified that smooth tubes had previously been used in Whirlpool dryers and were being
used by Westinghouse, a competitor, in its dryers. He also testified that the use of a smooth tube coupled with a
stronger connection would reduce the risk of lint escape. See Martinez, 977 S.W.2d at 337 (providing that to
establish a safer alternative design, a plaintiff must show that the alternative design would not, under other
circumstances, impose an equal or greater risk of harm).

Adams, Whirlpool's expert, testified that Whirlpool had used a smooth air transport tube in previous models, but
that the smooth tube was prone to detaching, which could cause lint to escape. Adams opined that the
corrugated tube was a safer alternative because it was less prone to detach. Adams also testified that installing
a screen to prevent lint from entering the heating element was a "bad idea" because it could create a patch of
lint near the heating element that was susceptible to combustion.

Based on the forgoing, we conclude that Clayton's testimony sufficiently linked his conclusions to the facts of the
instant case and that there is at least some evidence — more than a scintilla — of the existence of a safer
alternative design. Ratliff, 998 S.W.2d at 890. We overrule Whirlpool's fifth sub-issue.

Having determined that the evidence is legally sufficient to support the jury's findings that the Whirlpool dryer
was defectively designed and that a safer alternative design existed, we overrule Whirlpool's first issue.

III. SPOLIATION

By its second issue, Whirlpool contends that the Camachos intentionally spoliated the scene and that the trial
court erred by not dismissing the suit or not including a spoliation instruction. Whirlpool alleges that the
Camachos did not photograph obviously critical areas until after they removed all the fire debris.

Spoliation is the improper destruction of evidence, proof of which may give rise to a presumption that the missing
evidence would be unfavorable to the spoliator. Brumfield v. Exxon Corp., 63 S.W.3d 912, 919 n. 3, 920 (Tex.
App.-Houston [14th Dist.] 2002, pet. denied). Trial courts have broad discretion in taking 102 measures to
address spoliation of evidence. See Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 721 (Tex.2003); Trevino
v. Ortega, 969 S.W.2d 950, 953 (Tex.1998). A trial court abuses its discretion by acting arbitrarily,
unreasonably, or without consideration of guiding principles. Downer, 701 S.W.2d at 241-42. A trial court
generally does not abuse its discretion when it bases its decision on conflicting evidence. Davis v. Huey, 571 S.
W.2d 859, 862 (Tex. 1978).

To raise the spoliation issue, the party seeking the presumption bears the burden of establishing that the
alleged spoliator had a duty to preserve the evidence in question. Johnson, 106 S.W.3d at 722. This duty to
preserve evidence arises when a party knows or reasonably should know (1) that there is a substantial chance
that a claim will be filed, and (2) that evidence in its possession or control will be material and relevant to that
claim. Id. A trial court may be guided by the following three factors in determining whether sanctions or a
spoliation presumption are justified: (1) whether there was a duty to preserve evidence; (2) whether the alleged
spoliator either negligently or intentionally spoliated evidence; and (3) whether the spoliation prejudiced the
nonspoliator's ability to present its case or defense. Trevino, 969 S.W.2d at 954-55 (Baker, J., concurring).

Assuming that there was a duty to preserve the evidence, the record reveals that the Camachos preserved the
scene as practicably as possible. The record contains numerous photographs, notes, and diagrams of the
scene. Moreover, the scene was initially altered not by the Camachos, but by the fire department in its
suppression and investigation efforts. With regard to the third Trevino factor, we find that Whirlpool was able to
marshal the services of several experts to rebut the Camachos' expert testimony.

We hold that the trial court did not abuse its discretion by not dismissing the suit or including a spoliation
instruction. Whirlpool's second issue is overruled.

IV. SUFFICIENCY OF THE EVIDENCE CHALLENGE TO CONTRIBUTORY NEGLIGENCE CLAIM

By the title of its third issue, Whirlpool argues that the jury's answers to questions two and three of the jury
charge are against the great weight and preponderance of the evidence.[9] Question two asked the jury whether
the negligence of Margarita, Santos, or Salvador proximately caused Joab's death. The jury responded with a
"no" answer as to each family member. Question three asked the jury to apportion responsibility for Joab's death
as between Whirlpool and the three aforementioned members of the Camacho family. The jury answered that
Whirlpool was "100%" responsible.

In conducting our factual sufficiency review, we are mindful that the jury is the sole judge of the credibility of
witnesses and the weight to be given to their testimony, and we may not substitute our judgment for that of the
jury. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003); Maritime Overseas Corp. v.
Ellis, 971 S.W.2d 402, 407 (Tex. 103 1998). We set aside a finding for factual insufficiency only if it is so
contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d
175, 176 (Tex.1986) (per curiam).

Whirlpool claims that the Camachos were negligent by not having smoke detectors in the home and by using a
piece of plywood to cover a window in Joab's bedroom. Whirlpool's evidence of contributory negligence was,
however, highly controverted. Fire Marshal Gayton testified that, on the night of the fire, Salvador told him that
Joab's window was boarded up. At trial, however, Salvador testified that the window was not boarded up.
Additionally, Margarita testified that she saw Salvador take the piece of plywood off of the window before he went
to sleep. Regarding the lack of a smoke detector, Gayton testified that many homes in the area did not have one.

The jury, as the sole judge of the credibility of witnesses and the weight to be given to their testimony, was free
to believe Salvador and Margarita. We do not find the jury's answers to the contributory negligence questions so
contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain, 709 S.W.2d at 176.

Even if evidence was not conflicting, the acts alleged do not constitute negligence because they merely
furnished a condition which made injury possible. See, e.g., IHS Cedars Treatment Ctr. of DeSoto, Texas, Inc. v.
Mason, 143 S.W.3d 794, 799 (Tex. 2004) ("cause in fact [for negligence purposes] is not established where the
defendant's negligence does no more than furnish a condition which makes the injuries possible.").

Whirlpool's third issue is overruled.

V. LEGAL AND FACTUAL SUFFICIENCY OF THE DAMAGES

By its fourth issue, Whirlpool challenges the legal and factual sufficiency of the evidence supporting the award of
damages to all of the Camachos, including Joab's estate.

A. Standard of Review [10]

The standard of review for an excessive damages complaint is factual sufficiency of the evidence. See Rose v.
Doctors Hosp., 801 S.W.2d 841, 847-48 (Tex. 1990); Pope v. Moore, 711 S.W.2d 622, 624 (Tex.1986). We
should employ the same test for determining excessive damages as for any factual sufficiency question. See
Pope, 711 S.W.2d at 624. When considering a factual sufficiency challenge to a jury's verdict, we must consider
and weigh all of the evidence, not just that evidence which supports the verdict. See Ortiz v. Jones, 917 S.W.2d
770, 772 (Tex.1996); Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986). A court of appeals can set
aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly
wrong and unjust. See Ortiz, 917 S.W.2d at 772; Cain, 709 S.W.2d at 176. We, however, are not a fact finder.
Accordingly, we may not pass upon the witnesses' credibility or substitute our judgment for that of the jury, even
if the evidence would clearly support a different result. See Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex.
1986).

104 If we determined that the evidence supports the jury's verdict, we are not required to detail all the evidence
supporting the judgment when we affirm the trial court's judgment for actual damages. See Ellis County State
Bank v. Keever, 888 S.W.2d 790, 794 (Tex.1994). On the other hand, when reversing a trial court's judgment for
factual insufficiency, we must detail all the evidence relevant to the issue, clearly state why the jury's finding is
factually insufficient or so against the great weight and preponderance of the evidence that it is manifestly
unjust, and explain how the contrary evidence greatly outweighs the evidence supporting the verdict. See
Keever, 888 S.W.2d at 794; Pool, 715 S.W.2d at 635.

B. Damages Awarded to Santos and Margarita Camacho

The jury was instructed that it could award Santos and Margarita damages for the elements of (1) loss of
companionship and society, and (2) mental anguish. The instruction asked the jury to consider an award of
damages for each element as separate by stating that the jury was "not to include damages for the other
[element]." Moore v. Lillebo, 722 S.W.2d 683, 688 (Tex.1986) (providing that "[t]he trier of fact should . . . be
instructed that mental anguish and loss of society and companionship are separate elements of recovery" and
that "damages should not overlap, and no double recovery should be allowed."). The answer section, however,
did not delineate the amount for each element but provided only for the recovery of past and future damages.
No objection to the broad form question was raised. The jury awarded Santos and Margarita $3 million each for
past and future damages for loss of companionship and society and mental anguish.

Because no objection to the broad form of the question was raised, "we look only to see if one of the grounds
submitted to the jury is a valid ground. . . ." In re A.V., 113 S.W.3d 355, 363 (Tex.2003); see also Greater
Houston Transp., Inc. v. Zrubeck, 850 S.W.2d 579, 589 (Tex.App.-Corpus Christi 1993, writ denied) ("If there is
just one element that is supported by the evidence, the damages award will be affirmed if it is supported by the
evidence.").

We begin with the element of loss of companionship and society, which is described as a loss of the positive
benefits that a claimant would have received from a loved one such as love, comfort, and companionship. Moore
v. Lillebo, 722 S.W.2d 683, 687-88 (Tex.1986); Guzman v. Guajardo, 761 S.W.2d 506, 510 (Tex.App.-Corpus
Christi 1988, writ denied). Margarita testified that Joab was a good student. He enjoyed attending church and his
father's prayer services. Joab mowed elderly peoples' yards for free and donated some of his toys to less
fortunate children. Santos testified that he had a good, close relationship with Joab and that Joab was a friend.
By all accounts, Joab was an exceptional individual. Both Margarita and Santos presented testimony on the
positive benefits that Joab brought to their lives. There was no contradictory evidence presented about the
nature and quality of the relationship that Margarita and Santos had with Joab.

We conclude that the evidence taken as a whole is both legally and factually sufficient to support the damages
awarded by the jury for loss of companionship and society. The record contains more than a scintilla of evidence
to support the findings on damages and none are so contrary to the overwhelming weight of the evidence as to
be clearly wrong and unjust. Catalina v. Blasdel, 881 S.W.2d 295, 297(Tex.1994); Cain v. Bain, 709 S.W.2d 105
175, 176 (Tex.1986). Whirlpool's challenges to the sufficiency of the evidence for the damages awarded to
Santos and Margarita are overruled.

C. Damages awarded to Salvador, Asael, and Abisai

In questions six, seven, and eight, the jury was asked what amount of money would compensate Salvador, Asael,
and Abisai for the mental anguish that they suffered as a result of being bystanders to Joab's death. The jury
awarded Salvador $3 million and awarded Asael and Abisai $500,000 each. Whirlpool challenges the sufficiency
of the evidence supporting the jury's award of damages to Joab's brothers. Specifically, Whirlpool challenges the
sufficiency of the evidence supporting Salvador and Asael's mental anguish and the sufficiency of the evidence
supporting Abisai's ability to recover as a bystander.

The supreme court has held that mental anguish damages could not be awarded without either "direct evidence
of the nature, duration, or severity of [plaintiffs'] anguish, thus establishing a substantial disruption in the
plaintiffs' daily routine", or other evidence of "`a high degree of mental pain and distress' that is `more than mere
worry, anxiety, vexation, embarrassment, or anger.'" Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.1995).

Whirlpool argues that Salvador did not present enough evidence of mental anguish to justify the award.
Salvador testified that he was actively involved in the rescue efforts. During that time, he heard Joab calling out.
Salvador testified, "[h]e was — he was kind of, like, mumbling, like he was real tired, for me to help him."
Salvador's testimony about how he heard his brother moments before his death speaks directly to the nature of
his distress. Additionally, Margarita testified that Salvador visits Joab's grave every chance he gets and that he
often does not come home until late. Margarita's testimony touches upon the disruption to Salvador's life —
frequent visits to the gravesite of a younger brother. Whirlpool's challenge to the sufficiency of the mental
anguish element as it pertains to Salvador is overruled.

As part of its fourth issue, Whirlpool challenges the sufficiency of the evidence supporting Abisai's ability to
recover as a bystander. To recover as a bystander, a plaintiff is required to establish that the plaintiff: (1) was
located near the scene of the accident, as contrasted with one who was a distance away from it; (2) suffered
shock as a result of a direct emotional impact upon the plaintiff from a sensory and contemporaneous
observance of the accident, as contrasted with learning of the accident from others after its occurrence; and (3)
and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a
distant relationship. Freeman v. City of Pasadena, 744 S.W.2d 923, 923-24 (Tex. 1988).

Salvador testified that Asael attempted to help in the rescue efforts but was thwarted. Moreover, Margarita
testified that the family was asleep when the fire started and that she woke the family up and attempted to get
everyone out of the home. Salvador and Margarita's testimony establish that there is some evidence that Asael
and Abisai were near the fire scene. Therefore, Whirlpool's challenge to the sufficiency of the evidence
supporting Abisai's ability to recover as a bystander is overruled.

Additionally, Salvador testified that Asael and Abisai acted too aggressive and "as if they are angry." Margarita
testified that Asael and Abisai had been "affected a lot" and were "doing badly at school." We 106 hold that the
record contains some evidence showing that Asael and Abisai suffered a high degree of mental pain and
distress that is more than mere worry, anxiety, vexation, embarrassment, or anger. See Woodruff, 901 S.W.2d at
444. Whirlpool's challenge to the sufficiency of the evidence underlying the jury's award of damages to Asael
and Abisai is overruled.

D. Damages to Joab's Estate

In question nine the jury was asked what amount of money would compensate Joab for pain and mental anguish.
The jury awarded Joab's estate $4 million. Whirlpool challenges the sufficiency of the evidence supporting the
jury's answer to question nine. Whirlpool argues that "Joab died from smoke inhalation, lost consciousness
before the fire reached him, and likely felt no pain." Brief of Appellant at 48. We disagree.

Salvador testified that he heard Joab call out for help. Additionally, Fire Marshal Gayton testified that smoke is a
toxic gas that burns the lungs. The autopsy revealed smoke in Joab's lungs and heart. We hold that there is
sufficient evidence to support the jury's award. Whirlpool's fourth issue is overruled.

VI. IMPROPER ARGUMENT

By its fifth and final issue, Whirlpool argues that the Camachos' attorney repeatedly sought to inflame the jury's
passions and prejudices. Whirlpool cites us to five instances where the Camacho's attorney allegedly made
inappropriate comments by: (1) accusing Whirlpool of "blaming the victims" in response to Whirlpool's
contributory negligence defense; (2) implying that Whirlpool did not have a right to present a defense by
accusing Whirlpool of refusing to take responsibility for its products; (3) asking if it should be "open season" on
people who use extension cords; (4) referring to Whirlpool's suggestion that the fire was caused by a fire bomb
thrown under the mobile home by a terrorist or gang; and (5) referring to the "Easy Clean 100" as the "Easy
Burn 100" and claiming that the CPSC's disclaimer was the result of people in the dryer industry "try[ing] to cover
their butts."

The test for improper jury argument is whether the argument could have persuaded a juror of ordinary
intelligence to agree to a verdict contrary to that to which he would have agreed but for the argument. See
Welch v. McLean, 191 S.W.3d 147, 161 (Tex.App.-Fort Worth 2005, no pet.). Reversal is required only when the
entire record shows that argument was improper, uninvited and unprovoked, preserved by a timely objection,
and incurable by instruction, withdrawal, or trial court reprimand. See Standard Fire Ins. Co. v. Reese, 584 S.W.
2d 835, 839 (Tex.1979); Welch, 191 S.W.3d at 161. Further, an appellant must show that the argument
constituted harmful error by its nature, degree, and extent. Standard Fire, 584 S.W.2d at 839.

The Camachos note that Whirlpool's brief never cites the aforementioned test and "never makes any attempt to
apply it to the complaints it raises." BRIEF OF APPELLEES at 46, Whirlpool Corp. v. Margarita Camacho, et al.,
No. 13-05-361-CV, 2006 WL 1970317 (Tex.App.-Corpus Christi, Jun. 2, 2006). Indeed, Whirlpool's briefing on
the issue consists of two pages, half of which contains single-spaced quotations from the record. The "argument
section" consists, in its entirety, of the following:

The trial court overruled Whirlpool's timely objections and made no attempt to cure the prejudice. [Record
citations omitted]. Its apparent stamp of approval 107 allowed the jury to disregard Whirlpool's scientific evidence
in favor of Plaintiffs' demonstrably impossible explanation for the fire.
Attorneys must confine their arguments to the evidence and the argument of opposing counsel. Lone Star Ford,
Inc. v. Carter, 848 S.W.2d 850, 853 (Tex.App.Houston [14th Dist.] 1993, no writ). Inflammatory appeals to
passion and prejudice are improper. Circle Y of Yoakum v. Blevins, 826 S.W.2d 753, 758 (Tex.App.Texarkana
1992, writ denied). Improper comments are more likely harmful when repeatedly made. Standard Fire Ins. Co. v.
Reese, 584 S.W.2d 835, 840 (Tex.1979); Nat'l Union Fire Ins. Co. v. Kwiatkowski, 915 S.W.2d 662, 665 (Tex.App.
Houston [14 Dist.] 1996, no writ). And because a jury is predisposed to believe that a trial court's ruling are
correct, the trial court's refusal to sustain Whirlpool's objections added weight to the improper argument. Blevins,
826 S.W.2d at 759; see also Davis v. Southern Pac. Transp. Co., 585 S.W.2d 801, 804 (Tex.Civ.App.Houston [1
Dist.] 1979, no writ). The cumulative effect of the improper argument and the trial court's inaction requires a new
trial. BRIEF OF APPELLANT at 49-50.

Whirlpool has failed to show us how the statements it challenges could have persuaded a juror of ordinary
intelligence to agree to a verdict contrary to that to which he would have agreed but for the argument. McLean,
191 S.W.3d at 161. Whirlpool's fifth issue is overruled.

VII. CONCLUSION

The trial court's judgment is affirmed.

[1] Justice Federico G. Hinojosa, Jr., whose term ended on December 31, 2006, did not participate.

[2] For ease of reference, the parties last names will be omitted.

[3] Margarita and Santos sued in their individual capacity and as representatives of Joab's estate.

[4] The Robinson-factor analysis is a non-exclusive list of six factors for determining the reliability of expert testimony. It includes:
(1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective
interpretation of the expert; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique's
potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific
community; and (6) the non-judicial uses which have been made of the theory or technique. E.I. du Pont de Nemours & Co. v.
Robinson, 923 S.W.2d 549, 557 (Tex. 1995).

[5] The Texas Supreme Court has also recognized that "there are many instances when the relevance and reliability of an expert
witness's testimony are shown by the witness's skill and experience." Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713, 722
(Tex. 1998).

[6] The bulk of Whirlpool's expert testimony challenge is lodged against Clayton. Whirlpool, however, makes a passing reference
against the reliability of Sanchez's testimony. BRIEF OF APPELLANT at 32, Whirlpool Corp. v. Margarita Camacho, et al., No. 13-05-
361-CV (Tex.App.-Corpus Christi, Feb. 17, 2006) ("Neither Clayton nor Sanchez presented or authored a published article, much
less a peer-reviewed article about the opinions they rendered in this case."). Out of an abundance of caution, we will discuss the
reliability of Sanchez's testimony where appropriate. TEX.R.APP. P. 38.9.

[7] Whirlpool's third sub-issue challenges the admission of the exemplar dryer. We discuss this sub-issue in subsection c.

[8] The legal sufficiency of the evidence as it relates to the exemplar dryer will be discussed in subsection e.

[9] Whirlpool advances its third issue without a single citation to any legal authority. See TEX.R.APP. P. 38.1(h) (providing that the
brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and the record).
Out of an abundance of caution, we construe the issue as a challenge to the factual sufficiency of the evidence supporting the
jury's answer to the contributory negligence questions. TEX. R.APP. P. 38.9.

[10] We have already detailed the legal sufficiency standard of review and will employ it when necessary. TEX.R.APP. P. 47.1
(providing that the court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue
raised and necessary to final disposition of the appeal).