2015-12-11 Everett Dillman & Miguel Garcia (Direct)

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SARA E. RIVERA, CSR, CRR

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REPORTER'S RECORDTRIAL COURT CAUSE NO. 2015-DCV-0235-B

THERESA GAMEZ,PLAINTIFF

V.

DILLON TRANSPORT, INC.;DILLON TRANSPORT, INC.,IN ITS COMMON OR ASSUMEDNAME;

KENNETH EUGENE JENNINGSANDMIGUEL A. GARCIA, SR.,

DEFENDANTS

)))))))))))))

IN THE DISTRICT COURT

117TH JUDICIAL DISTRICT

NUECES COUNTY, TEXAS

_________________________

TESTIMONY OFEVERETT DILLMAN

ANDMIGUEL GARCIA

(DIRECT EXAMINATION ONLY)__________________________

On the 11th day of November, 2015, the

following proceedings came on to be heard in the

above-entitled and numbered cause before the HONORABLE

SANDRA L. WATTS, Judge Presiding, held in Corpus

Christi, Nueces County, Texas:

Proceedings reported by Machine Shorthand.

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APPEARANCES:

MR. WILLIAM R. EDWARDS IIISBOT NO. 06465010ANGELINA BELTRANSBOT NO. 02111700The Edwards Law FirmFrost Bank Plaza802 North Carancahua Street, Suite 1400Corpus Christi, Texas 78401Telephone: 361-698-7600

ATTORNEYS FOR PLAINTIFF

MR. ALEJANDRO BLANCOCalifornia Bar No. 133073The Blanco Law Firm, P.C.535 North Brand Boulevard, Suite 700Glendale, California 91203Telephone: 661-948-6000

andMR. CRAIG S. SMITHSBOT NO. 18553570Law Offices of Craig S. Smith14493 SPID, Suite A, PMB 240Corpus Christi, Texas 78418Telephone: 361-728-8037

ATTORNEYS FOR CROSS PLAINTIFF, MIGUEL A. GARCIA, SR.

MR. LARRY D. WARRENSBOT NO. 20888450Naman, Howell, Smith & Lee, PLLC1001 Reunion Place, Suite 600San Antonio, Texas 78218Telephone: 210-731-6350

ATTORNEY FOR DEFENDANT, DILLON TRANSPORT, INC.

MR. DOUGLAS CHAVESSBOT NO. 04161400MR. AIDAN PERALESSBOT NO. 24027604Chaves, Obregon & Perales, LLP802 North Carancahua, Suite 2100Corpus Christi, Texas 78401Telephone: 361-884-5400

ATTORNEYS FOR DEFENDANT KENNETH EUGENE JENNINGS

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P R O C E E D I N G S

(December 11, 2015)

THE COURT: All right. Before the jury

comes in, I did not receive anything from the defense

with regards to the issue of net worth. I did receive a

letter brief from Mr. Edwards and I have read that and

it dawned on me before I left -- yes, you've come to an

agreement?

MR. EDWARDS: You know, after all of this,

I woke up this morning and thought this is way too hard,

we're just gonna withdraw the subpoena and we won't

worry about evidence of net worth.

MR. SMITH: Join.

MR. WARREN: I appreciate that from both

gentlemen.

MR. EDWARDS: And I'm sorry that we put you

through the hoops.

THE COURT: No, that's all right. It

dawned on me yesterday that's why I immediately went --

I spent three days about a month ago at a seminar for

judges put on by the National Association of

Professional Accountants on three days on financial

statements. So I thought, you know, I'll bet there is

something in there and I went home and read through all

of my notes and I am -- I was prepared to grant the

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issue of the net worth including the financial

statements because the basic financial statements of

which there are five, the income and expenses now called

by the way, a comprehensive income statement --

MR. EDWARDS: Yes.

THE COURT: -- instead of income profit and

loss, and it's relevant -- so you'll know this, it's

relevant for the purposes of net worth with regards to

having an idea of the operational changes or effect on

the net worth.

MR. CHAVES: Actually, we found some cases

that say the same thing.

THE COURT: I did too.

MR. WARREN: And I did send an e-mail. I

was having computer problems last night, that was the

problem, but I did send one at about three till nine

this morning and you can ignore that one now.

THE COURT: Actually, I found his about

3:30 in the morning so.

MR. WARREN: I was trying to not look at

3:30 in the morning.

THE COURT: But anyway, like I say, after

reviewing everything with three days of hardly keeping

my eyes open on financial statements, there was no

question that I think it's very relevant to the issue of

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of net worth.

MR. EDWARDS: I don't disagree with that.

THE COURT: So you're withdrawing the issue

of net worth?

MR. EDWARDS: Yes. You know what, I'm not

gonna worry about mucking up the waters.

THE COURT: Okay. Very good.

MR. EDWARDS: We'll just go forward with

that.

THE COURT: You got it.

All right. Are we ready?

MR. WARREN: We're ready, Your Honor.

MR. CHAVES: Ready, Your Honor.

THE COURT: Let's bring in the jury,

Mr. Gallegos.

(Jury enters courtroom.)

THE COURT: Please be seated, everyone.

And Mr. Edwards, call your next witness.

MR. EDWARDS: Plaintiff calls Everett

Dillman.

THE COURT: I haven't sworn you.

(The witness is sworn.)

THE WITNESS: Yes, ma'am.

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EVERETT DILLMAN,

having been first duly sworn, testified as follows:

DIRECT EXAMINATION

BY MR. EDWARDS:

Q. Will you tell us your name, please, sir.

A. Everett G. Dillman.

Q. What do you do?

A. I'm a business and economic consultant. I am

president of International Business Planners

Incorporated which is a business and economic consulting

firm in El Paso.

Q. You're an economist?

A. Yes, sir.

Q. Can you give us a bit of your background,

educational background and experience?

A. I have a bachelor's degree in business from the

University of New Mexico in Albuquerque, I have a

master's degree in business from the same school. I

have an additional year of graduate work at the

University of New Mexico, and finally, I have a Ph.D. or

doctorate from the University of Texas at Austin.

In terms of work experience, I've taught --

teaching experience, I've taught part-time at the

University of Albuquerque, University of New Mexico

before I went away for my doctorate. Then I went back

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to the University of New Mexico where I was an assistant

professor, and one year was director of the Bureau of

Business and Economic Research. In 1967, I came to the

University of Texas at El Paso as director of the Bureau

of Business and Economic Research and as an associate

professor. I was promoted to full professor for --

about two years later, and then, I stayed with

University of Texas at El Paso until 1985 when I

retired. However, ever since the early '60s, I've

maintained a business, an economic consulting firm, on a

part-time basis while I was teaching, on a full-time

basis since I retired.

Q. When do you plan to retire?

A. One year after your father retires.

Q. You and my father go way back?

A. Yes, sir, we've been -- I've been working with

your father for probably 40, 45 years. He's one year

older than me, that's why I said that.

Q. Yeah. So when you approach a case like this --

first of all, what did we ask you to do in this case?

A. You asked me to make an evaluation of what we

call the present day value of certain areas of potential

economic damage due to an injury to Ms. Gamez.

Q. So there are several different categories that

you look at?

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A. Yes, sir.

Q. What are the different categories that you look

at?

A. Well, the general categories are the earning

capacity which is what an individual would have had the

ability to have or make, given their background,

education, training, experience and work experience and

prior earnings. What I compute is their earning

capacity, how much of that has been taken away because

of the injury is not an economic matter, that's a

vocational matter and I don't enter into that.

The second thing I look at or what we

generally call household production or household

services. The things an individual would perform in and

around the household, things like cooking, cleaning,

maybe a little repair work, working on the yard, that

sort of thing.

And the third thing is what we call future

medical and care costs, and what I'm -- and I don't

determine what those costs are. In a case such as this

where I have what we call a life care planner, where

somebody whose expertise lies in the area of assigning

these costs presents a report. I take that report and

say, how much money do we need to today to invest that

will then be able to pay for this -- these care costs

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over the individual's expected life expectancy, and at

the end of that time, the original amount will be all

gone.

Q. So let's approach this one at a time, if we

may?

A. Yes, sir.

Q. Before we do that, why do we even need an

economist to take a look at these numbers? You know,

for example, the life care plan, the doctor gave us what

he determined to be the cost of her life care plan in

the future. Why do we need somebody like you to come in

and do what you do with these numbers?

A. Well, there are different categories in a life

care plan. And when I said that you have to know how

much money taken today that you need, you have to

consider the fact that something that cost a dollar

today 20 years from now is gonna cost more than a dollar

because of inflation. So I have to make those

considerations where the -- where the life care planner

does. The life care planner says, this is what it costs

today.

Q. Excuse me --

A. Also, there's another element --

Q. Excuse me. If I may real quick, let me

interrupt. So if we talk about today and you said if

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something costs one dollar today, sometime in the

future --

A. It's gonna cost more than a dollar.

Q. We have a historical trend of inflation?

A. Yes.

Q. So due to inflation, the cost is going to be

greater than one dollar?

A. It's going to be more than one dollar.

Q. More than one dollar. All right. So what else

do you have to take into account in order to -- if we

looked at just inflation and the doctor said, it's gonna

take $100 in the future for medical care, what do you

have to do to account for inflation now so that that

$100 is fully available in the future?

A. Well, first thing I have to do is say, if it's

gonna cost $100 today, I say, for what. I mean, what is

it for? Is it for a doctor, or is it for medicine, or

is it for somebody to help around the house?

Q. So let me, if I may, let's just talk generally

first and then we'll break it down.

A. Okay.

Q. All right.

A. But what I'm saying is the first thing I have

to do is determine what the costs are.

Q. And do you have to -- and you got this in the

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life care plan?

A. Yes.

Q. And then you have to account for inflation?

A. Yes.

Q. Which means you have to increase it. We need

more money today because of inflation in the future?

A. Yes. Well, you would need more money today if

it wasn't for the fact that you can invest that money.

Q. And that's the next line, isn't it?

A. Yeah.

Q. All right. So in terms of the fund, the fund

to pay for it, if we just look at -- if we're gonna have

a one dollar -- if we're gonna have a one dollar cost

out in the future, and there is a fund today that's

gonna earn interest, that's essentially what you're

saying, right?

A. That's correct.

Q. We need less than a dollar today --

A. That's correct.

Q. -- because we can invest it in the fund and it

will be a dollar in the future?

A. That's correct.

Q. But the dollar cost today is gonna be more than

a dollar in the future?

A. That's correct.

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Q. So what do you do with inflation and interest?

A. What you have to do is you have to say, which

is the biggest force. Is the inflation greater than the

interest or is the interest greater than the inflation,

and there is -- there are mathematical techniques of

doing this. We do a ratio analyses, and on some cases

of that life care plan, some of the elements, the

medical service part, the doctors and hospitals, the

nurses and that sort of thing, those costs have been

going up faster than the interest rate, so you actually

have a slight compounding effect. For other things like

medicines, the long-term trend of those is less than the

interest rate. Currently, it's going up faster, but the

long-term trend is less than the interest rate so you

don't need quite as much money today to make these

payments over the future time. So what I started to say

what I have to do is break these the life care plan down

into these categories and determine which category, what

the inflation is for a particular category, and then,

offset that against the interest rate. And then I just

apply that to what the life care planner did. I make

absolutely no judgment as to whether the items are

needed or not needed. That is not my field.

Q. All right. Now, these figures that you used,

this information that you use about inflation trends on

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the various categories and the earning ability of money

trends, where do you come up with those numbers, is that

public standard in your industry?

A. No. Well, different economists use different

techniques. It's the same general methodology, but they

come up with slightly different conclusions as to what

the appropriate interest rate or rate of inflation. I

tend to use a long-term relationship between 1970 and

the latest data. All this data comes from various

departments of the federal government. The reason I use

a long-term trend is because the ups and downs of the

economy kind of cancel out. For instance, in some of

the period of this 40-year period, interest rates have

been really high, very high. Now they're very low. But

inflation in those periods were very high, and now it's

very low. The two sources tend to go together.

Q. Now, when we talk -- if we shift for a moment

to talking about -- about earning capacity and the

present value of earning capacity, do you go through the

same kind of analysis there?

A. We go through the same kind of analysis, except

that the category that I used are wages in the economy,

and in this case, wages have increased less than the

interest rate over this period of time so you need a

little bit less money today to make up. If you would

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just multiply, let's say that one dollar was for 20

years, that would be $20. We wouldn't need to have $20

today. You could have let's say $18 today and that --

and 20 years would equal $20.

Q. Okay. With respect to earning capacity, this

has more to do with costs, right?

A. Yes.

Q. So if we talk about earning capacity, you're

essentially talking about a stream of income?

A. Yes.

Q. And as you put it, if we have one dollar per

year with over 20 years, you have a stream of income,

and in 20 years you would have earned $20?

A. Well, you would have earned more than $20

because it would be inflation.

Q. In the absence of inflation?

A. Yes. In the absence of inflation you would

have earned $20.

Q. All right. And so, in the absence of inflation

and interest rates, to replace this stream of income,

you'd need to start with the fund of $20?

A. That is correct, sir.

Q. Because then, from the fund you could pull a

dollar a year for 20 years and have your $20?

A. Yes.

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Q. And what I heard you just say was wage

increases are not keeping up -- I'm sorry, the interest

is ahead of wage increases?

A. Yes.

Q. So you actually need a little less than $20?

A. Yes.

Q. Because the fund is put, in essence, into an

account, it earns interest as it's being paid out?

A. That's correct.

Q. And at the end of the -- as you say, you start

with $18 hypothetically?

A. Yes.

Q. And with the interest that's earned, this will

pay out a dollar per year for 20 years and you still end

up paying out essentially $20?

A. You -- the current purchasing power equivalent

of $20, yes.

Q. Yeah. But you have to -- you have to still

take into account both earning capacity and money?

A. Yes.

Q. And inflation?

A. Yes.

(The following bench conference was held.)

MR. EDWARDS: I was going to offer this

summary.

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MR. CHAVES: We have objections on two

grounds, Your Honor. There's no objection -- that is,

his testimony gave no objections of having any evidence

of household services, loss of household services. He

said he had no information on it, no basis for --

THE COURT: Was it in the --

MR. WARREN: In the report?

MR. CHAVES: It's in his deposition.

MR. EDWARDS: This is from -- this is from

his report, and he's not saying there is loss of

household services, he's saying, if there is, this is

how you can value it.

MR. WARREN: Well, on top of that, Your

Honor, I object, I don't believe an economist in their

case can walk in and testify to the fact of loss of

household services.

MR. CHAVES: And the third basis is expert

reports --

THE COURT: I guess I have a question for

you. In the life report who did -- I can't think of her

name.

MR. WARREN: Dr. Ramon.

THE COURT: Okay. Did he list any

household services?

MR. EDWARDS: Hang on just a minute.

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THE COURT: I don't think that he did.

MR. CHAVES: He didn't.

THE COURT: And then --

MR. EDWARDS: No, and if --

THE COURT: Then what's the purpose of this

if we don't have any basis for it?

MR. EDWARDS: If Theresa Gamez testifies, I

can't do these types of chores around the house anymore,

what he says is he puts a dollar value of $7.50 per hour

and he says 10 hours - 10 hours a week at $7.50 an hour,

this is the present value for her.

MR. CHAVES: And my objection is threefold.

Number one, he has no expertise to give that

information; number two --

THE COURT: Why wouldn't he?

MR. CHAVES: Number two, he's indicated

that he has no evidence of household services. But the

third one is extra reports --

THE COURT: I'm going to allow him to

testify, but I'm not going to admit it until I have an

underlying foundation for it.

MR. CHAVES: I agree.

THE COURT: Okay.

MR. CHAVES: Oh.

THE COURT: I'm so glad you --

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MR. CHAVES: Yeah, yeah, I know.

THE COURT: -- like my ruling.

MR. WARREN: For now, the objections are

overruled?

THE COURT: It's -- it's overruled, but I'm

not going to admit it for the purposes of the evidence.

MR. CHAVES: And it's all --

THE COURT: It' kind of a conditional.

MR. CHAVES: Yeah.

(End of bench conference.)

Q. (BY MR. EDWARDS) So, Dr. Dillman, let's

approach the medical expenses first. We're talking the

present earning capacity, correct?

A. Not of future medical.

Q. I said medical expenses?

A. Yes.

Q. All right. So you had -- what did you do to

calculate or to get to a number for present value of

medical expenses?

A. First thing I did was break the medical

expenses into four different categories. Medical

services which are doctors, hospitals, nurses, services

performed by home health agencies, that sort of thing.

The next is medical commodities which are prescription

drugs, nonprescription drugs. It would be things like

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crutches, scooters, wheelchairs and so on. Then

nonmedical services which would be things like

wheelchair repair, and in some cases there would be

people that helped around the house that don't come from

a home health agency. I want to say a little bit more

about that later. And the fourth thing are nonmedical

commodities. Nonmedical commodities are things that are

necessitated by the injury but are not medical in

nature. For instance, a burn victim might utilize a

petroleum jelly to put on like -- like Vaseline to put

on a scar tissue to keep it pliable. That would not be

a medical commodity, but those are usually very, very

little, if any.

Q. All right. And you aren't -- you aren't making

the determination yourself in your hypothetical that a

burn victim needs petroleum jelly, that would be

something you'd find with a life care planner?

A. The life care planner would do that. I would

not introduce anything of my own into the life care

plan, other than to compute how much money taken today

would be needed to -- to accommodate that plan.

Q. All right. So you have looked at Dr. -- in

this instance -- and by the way, when you're talking

about wheelchairs, you're talking about that as an

example of what you look at?

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A. Oh, that's an example. I'm not trying to make

a determination that in this case a wheelchair is

needed.

Q. Right. You were just using that as an example

of a commodity?

A. Of a commodity, yes.

Q. All right. So if you take Dr. Ramon's life

care plan that you determined, what would need to be

funded today to fully pay for his life care plan over --

over the life of the life care plan?

A. Yes, sir, I did.

Q. And what was that number?

A. $3,182,385.

MR. EDWARDS: May I have the ELMO, please.

Q. (BY MR. EDWARDS) Now, if we look at present

value of earning capacity, what did you do to determine,

first, Ms. Gamez's earning capacity?

A. Well, what I had to do was to make a

determination of two things other than the -- what I

talked about inflation, and two other things other than

inflation and discount. I had to determine over what

length of time would she have the ability -- she would

have had or still may have the ability to earn money.

And for that, I used two different numbers, I used one

number that comes from a table that's prepared from data

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published by the federal government, and this is what we

call work life expectancy. That table includes the

probability of premature death, illness, accident or

retirement. But since the table includes retirement,

and retirement really doesn't reduce your capacity or

ability, and what I'm trying to compute is the ability

or capacity. I make another calculation to age 70. I

use age 70 as the top working age even though, mainly

because you have to take out your retirement programs by

70 and a half, otherwise, you pay a huge penalty for it.

So I make two determinations up for a length of time.

Now, the second thing I have to do -- and

this is very important -- I have to say what number,

what number am I going to use to start the mathematics,

the arithmetic, and for what -- for this, I have to look

at what the individual has done, what they have shown

the ability or capacity to do. In this case, I had

income tax information for quite a number of years, and

so what I picked was the last year of income, which was

2014, and I said, we know that she had or even at the

current time had the ability to earn this amount of

money, so that was the amount that I started with. Then

I took it over this length of period of time, I took out

income tax, which I have to do, and I added in the

normal average fringe benefits like insurance, and

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employer contribution to retirement programs and to

social Security, and then I come up with a net number

which is called the net present value.

Q. All right.

A. Actually, two numbers.

Q. So if we -- you listed her income tax reported

earnings in your report, right?

A. Yes.

Q. And I'm showing you that now?

A. Yes.

Q. And you -- why do you use the year 2014?

A. Well, when I looked at it was the 2014, is it

consistent. Well, it is. Even though it occurred after

the accident, it is -- we know that she had that ability

or capacity. Now, whether that ability or capacity

would have been higher had the accident -- her injury

not have occurred, I don't know, and I'm not making any

determination of it. But we know she had that, at least

that amount, so that becomes a pretty stable defensible

base.

Q. All right. And so what did you determine? You

calculated two numbers for present day earning capacity,

correct?

A. Yes, sir.

Q. The first one is the work life?

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A. Work life which would be an additional -- from

the date of my report which was about a month ago. That

would be an additional 13 years. That number is

$937,768.

Q. That's to which age?

A. That would be -- let me see -- 64, at age 64.

Q. All right. Now, if you calculate it on - the

alternative that you calculated was to age 70?

A. Yes. That is $1,343,880.

Q. And that's taking into account the ability of a

person in today's world that would work beyond age 64 to

age 70?

A. Yes.

Q. Now, you told us that you don't actually

determine if a person has any actual loss of earning

capacity?

A. That's correct. That's a vocational matter.

Q. All right. If -- if the jury comes to the

conclusion that there is a 100 percent loss of earning

capacity -- and let me back up before I ask that. You

know that Ms. Gamez is still working and making money?

A. Yes, sir, in fact, she's earned more after the

accident --

Q. Right.

A. -- than she did before.

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Q. So how do you distinguish the actual wages

earned from earning capacity?

A. Well, the actual wages earned we know what

those are from the income tax. Earning capacity is what

the individual would have the ability to have earned in

-- in a case like this had the injury not occurred.

Well, the ability to earn had the injury not occurred

might be exactly the same, which means you have no loss.

The ability to earn may be -- may be lost in the future.

It may have existed in the past, but it may be lost in

the future because of the inability to perform the job

or something else, but that's a vocational matter. I

can't address that.

Q. So, for example, if -- if -- if a injured

person has an employer who, due to longevity with the

company, makes special accommodations for the injured

person and still pays them her wages, does that mean

that the person necessarily did not sustain loss of

earning capacity?

A. No. As a matter of fact, what we're talking

about normally in earning capacity is what a person

would be able to earn in a competitive labor market.

And it -- the individual may not have lost -- may not

have lost any earnings as such, but you have to consider

whether that benevolence will continue, whether the

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benevolence will continue at the same level. There's a

lot of things that can occur including the interactions

with other employees. In other words, if an individual

-- and I'm not making any judgments here whether this is

the case. But if an individual is not, "pulling their

own weight," but still is getting a salary that is

competitive with the other people in the organization, I

think you know that petty jealousies can occur which

causes friction in the organization. The employer may

be willing to tolerate that friction or may not be able

to tolerate that friction. I can't make any

determination. Normally, it would tend to exist, but

again, that's not a -- that is not a matter for me to

determine.

Q. So if we wish to consider earning capacity,

should -- you were talking about a hypothetical person

who is in an environment with a benevolent employer, an

employer who is willing to make special accommodations.

If for some reason that employee, that injured person is

no longer employed by the benevolent employer, whether

it be the business goes out of business, the employer

retires, or because of the friction you were talking

about, there has to be a termination. Does earning

capacity reflect the ability of that injured person to

compete in the marketplace to get a new job and keep it?

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A. That's exactly what it is. In other words, the

question is how would that person be able to react in

the competitive labor market.

Q. All right. So if the jury were to determine

that there is a 100 percent loss of earning capacity,

loss of ability to compete, to get and keep employment

outside of the benevolent employer, would the jury

determine one of these numbers, either going to age 64

or age 70 for a 100 percent of loss of earning capacity?

A. I can't tell the jury what to do, but in my

opinion, that would be the loss, yes.

Q. All right. Now, if the jury were to determine

that there is say a two two-thirds loss of earning

capacity, the ability to go out in the competitive

market and compete, what would be a proper measure of

loss of earning capacity in that scenario in your

opinion?

A. 66 percent of this.

Q. So two-thirds of whichever one of these?

A. That's correct.

Q. Okay. Dr. Dillman, I think earlier you also

mentioned loss of household services?

A. Yes, sir.

Q. Did you come up with a factor of the loss of

household services?

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A. I came up with a number that might assist the

jury in discounting the procedure. I do not know how

many hours per week on the average that would have been

lost that may not be covered in the life care plan.

That's what I said, we don't need any duplication, but -

so I said that if the jury should find that there are

approximate -- there are 10 hours per week average loss

over the rest of her lifetime, that they're not covered

in the life care plan, then -- and we value each of

those hours at federal minimum wage, $7.25 per hour, it

would discount to a certain amount. But again, that's

just a factor. If the jury should find that it's zero

hours, then it's zero. If they find that it's five

hours a week loss on the average, it would be half of

the factor. If they feel that it's 30 hours a week lost

on the average, it would be three times the factor.

This is an aid in discounting, that's all.

Q. All right. And just like on the medical

expense, you can't say that there isn't, in fact, a

medical expense incurred in the future. You have to

rely upon -- or the jury will need to rely upon other

testimony and evidence to determine that?

A. Well, they'll have -- I can't tell the jury

what to rely upon, but I will tell them not to rely upon

me.

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Q. You don't -- you bring it to present value?

A. Yeah, that's all I do.

Q. All right. And so this factor, this present

value factor is if there is a showing that there's a

loss of household services, this is a factor that the

jury might consider?

A. Yes.

Q. And this is a present value of that?

A. Yes, sir.

Q. And you said your -- the factor is for ten

hours?

A. Average of ten hours per week.

Q. Ten hours?

A. Per week.

Q. At $7.50 an hour?

A. $7.25.

Q. $7.25. The present value of that factor?

A. $119,193.

Q. All right. Thank you. So if there were, in

fact, ten hours per week lost over the lifetime of

Theresa Gamez, and the number that would be an

appropriate, in your opinion, would be this 119,193?

A. Yes.

Q. If it's five hours per week, it's half of that?

A. Yes.

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Q. If it's 20 hours per week, it's twice this?

A. That's correct.

Q. Dr. Dillman, this chart that you and I have

created here, does that reflect a summary of the report

that you've done in this case and the opinions that

you've come to?

A. Yes, sir, it does.

MR. EDWARDS: Your Honor, I've marked this

chart as Plaintiff's Trial Exhibit 552 and I would offer

it.

THE COURT: Any objection?

MR. CHAVES: No objection.

THE COURT: Admitted.

MR. EDWARDS: Your Honor, we pass the

witness.

MR. BLANCO: If I may, Your Honor, just

briefly?

THE COURT: Yes.

DIRECT EXAMINATION

BY MR. BLANCO:

Q. Dr. Dillman, you talked about the forces of

inflation and the forces of interest rates --

A. Yes.

Q. -- how they compete? And you specifically

mentioned the medical inflation forces have outpaced,

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are stronger than the forces of interest rates?

A. Not all of the medical. Medical services,

that's doctors, hospitals, that sort of thing, nursing

homes.

Q. And here's my question. Has that been a

historical fact recognized in economics?

A. It is obviously a historical fact, the numbers

show it, I'd say recognized anybody that looks at it --

Q. Okay.

A. -- can determine what has happened in the past.

There may be some questions that by different economists

that's what's gonna happen in the future.

Q. In terms of specific analysis in your field of

expertise, is forensic economics or economics considered

a science?

A. It's a social science.

Q. And do you use scientific methodology in order

to arrive at the numbers that you have arrived here?

A. We use -- it depends on what you mean by

"scientific." It's a social science. We -- we can't

hold experiments like you can do in the natural

sciences. There's variability. What we actually do is

that we're talking about what's gonna happen in the

future.

Q. Right.

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A. But the future is what we would call happens

under conditions of uncertainty. But because things are

uncertain, that doesn't mean that they happen

haphazardly. Some things are more likely to happen than

others, and we call those likelihoods, probabilities.

Q. Okay.

A. And what we do in economics is utilize these

probabilities to try to reduce the problem in the future

of forecasting. We try to make things less uncertain.

Q. Are these numbers that you've discussed with

Mr. Edwards to a reasonable degree of economic

probability?

A. Yes.

MR. BLANCO: Thank you. Pass the witness.

MR. CHAVES: May I proceed, Your Honor?

THE COURT: You may.

CROSS-EXAMINATION

BY MR. CHAVES:

Q. Dr. Dillman, I don't believe you and I have

ever met before, have we?

A. I don't believe so, sir.

Q. I've seen your name for about 25 years and read

a number of your reports, but personally, you and I have

never met, or I've never even taken your deposition,

have I?

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A. Not that I know of.

Q. Okay. As I understand, your purpose here today

is to look at the economic numbers and come to a

conclusion so that you can give opinions on past

earnings and future earnings capacity and the medical

bills and the life care planner we've talked about?

A. Not medical bills, medical life care plan.

Q. Yes, thank you. And I think you've been candid

enough with the Court that you're not here to express

any opinions as to whether or not Theresa Gamez -- and

that's the only one that you've evaluated; is that

correct?

A. That's correct.

Q. You didn't evaluate Mr. Garcia?

A. No.

Q. Okay. You're not here to offer any opinions as

to whether or not Ms. Gamez has suffered any loss of

earnings? Is that true?

A. That is correct.

Q. And you're not here to offer any opinions that

this jury can base their judgment on, on whether or not

Ms. Gamez has suffered any loss of earning capacity; is

that true?

A. That is correct, sir.

Q. All right. What you did was simply take her

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earning history, take her last year and adjusted it for

inflation, true?

A. Yes, sir.

Q. But then you likewise adjusted, you discounted

for present value?

A. Yes, sir.

Q. All right. And the reason for that is because

-- and a lifetime earnings, you earn your salary this

year, and then next year, next year, on down through

your work life expectancy, correct?

A. Yes, sir.

Q. And the U.S. Tables tells us that the work life

expectancy for Ms. Gamez is 65 years of age, true?

A. No, I think it's through 64, yes.

Q. Okay.

A. Through 65, yes, that's right.

Q. Is it 64 or 65?

A. Through 64 to 65.

Q. Through 64 then. And you take that -- in the

ordinary course of life, those earnings are earned on a

year by year basis, true?

A. That's correct.

Q. But if a jury is being asked to put a figure in

there, she gets all of that at once?

A. Yes.

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Q. True?

A. That's correct.

Q. And because of the economic factors, she could

take then a total figure, put it in the bank and begin

to earn interest, which she wouldn't be able to do if

she was earning it year to year?

A. That's correct, sir.

Q. And that's one of the reasons that you discount

it for present value?

A. Yes, sir.

Q. All right. Now --

MR. CHAVES: May I approach, Your Honor?

THE COURT: You may.

Q. (BY MR. CHAVES) I didn't get a chance to really

look at your -- okay. Because Mr. Edwards marked the

exhibit, I can't specifically talk about --

A. Yes.

Q. -- or mark this one up. But we got present

value of earning capacity, okay?

A. Yes.

Q. Well, first of all, I noticed there's no -- in

your initial report, you made a comment that she

sustained a $64,000 lost earnings minus what she would

have earned or what she did earn?

A. That's correct.

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Q. All right.

A. That was -- that was for past.

Q. Right.

A. Yes.

Q. But you found out and you had to amend your

report because, in fact, she had suffered zero loss of

earnings?

A. Well, I'm not sure that's true. I -- I brought

the report up to date to the expected time of trial.

Q. Okay.

A. I didn't include anything for the past because

I understood that she was still working.

Q. True.

A. Now, whether she would have been able to have

made more had she not been injured, I don't know and I

can't say.

Q. But from an economist point of view, you could

not give any opinion that she sustained any loss of

earnings, past earnings?

A. That's correct, that's why I haven't testified

to any.

Q. So as far as past earnings, the answer is zero?

A. No. The answer is I can't say what it -- what

amount, if any.

Q. Okay. So no opinion?

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A. There's no opinion, that's correct.

Q. On the future -- I think it's present value

future earnings -- and this is present value of earning

capacity, true?

A. Yes.

Q. But if the jury -- the jury is never asked that

question as far as you know, are they?

A. What question?

Q. Whether she sustained -- what her future

earning capacity is?

A. No, they're asked what the loss of the future

earning capacity is.

Q. Exactly. But if the question is, what is her

future loss of earning capacity, you could not give us

an opinion on it?

A. No, that's a vocational matter.

Q. All right. In other words, you're not

suggesting to the jury that if there's asked a question

about future loss of earning capacity, that the jurors

should award 937?

A. No, I am not, I am not.

Q. Because if she continues to work, as she is

doing, the answer would be zero?

A. If she had suffered no loss of earning

capacity, obviously, the answer is still zero. If she

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continues to work with the same employer, that does not

necessarily mean that she is making the same raises or

getting the same money she would have received had the

injury not occurred, but I can't address that question

at all.

Q. And that's my point. You're not here today to

express any opinion that she has sustained any future

loss of earning capacity?

A. That is correct.

Q. All right. Because whether she has benevolent

employer today through the retirement of her work life,

or whether she goes to another employer and earns more

money, she would not sustain any loss of earning

capacity?

A. Well --

Q. That is a --

A. -- if she's not hurt, she's not hurt.

Q. Whether she's hurt or not, you know there's

people who have been hurt and still they do not sustain

any loss of earning capacity, do they not?

A. Well, that's not necessarily true. There are

people who have been hurt that may not have suffered any

loss of earnings, but they can still sustain a

significant loss of earning capacity. When a person is

hurt or injured to where part of their human capital --

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we're not talking economic terms.

Q. Sure.

A. Part of their human capital has been removed.

That human capital is like an investment that you could

make, and if that's been taken away, that's a loss.

Q. But --

A. Now, how much of a loss may be very difficult

or even impossible to -- to determine, but it's still a

loss.

Q. But as an economist, as a witness that you're

here for today, you could not express any opinion as to

whether earning capacity would diminish or increase?

A. Well, it couldn't have been increased, so I

don't know that --

Q. She makes more money.

A. Well, I don't see conceivably how an injury can

increase your earning capacity. Your earnings might

increase --

Q. Your earnings might?

A. Yes.

Q. Okay. Fair enough, fair enough. It doesn't

mean her earnings will be diminished or increased, does

it?

A. I cannot -- well, it doesn't mean that. I

can't say. I am not making a vocational opinion, or I'm

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not giving a vocational opinion.

Q. I understand. And so if she continues to work

till age 64, she has not suffered any loss of earning

capacity from a monetary figure that you can express as

an economist; is that true?

A. That she would not have suffered a diminishment

of earning capacity that I, as an economist, could

calculate.

Q. Thank you, sir. Now, the household services?

A. Yes.

Q. You put a figure of $119,000?

A. Yes.

Q. In your review of the records provided to you,

was there any indication of household services?

A. I didn't see any, but that's why I just did a

factor. I'm not saying that there has been any loss.

I'm just saying if the jury wishes to discount, this is

the way to do it.

Q. But if the jury is basing it on the evidence of

loss of household services, did you see any evidence of

loss of household services?

A. I didn't, no.

Q. No?

A. No. I don't agree with that.

Q. Okay.

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A. Just put, I did not see any evidence.

Q. Dillman?

A. Yeah, not that there is none. I just did not

see any.

Q. All right. Dillman saw no evidence of

household services?

A. That's correct.

Q. All right.

A. Because I didn't look.

Q. Okay. If you didn't look I guess we can move

on, sir.

One final question. You indicated that you

put an increased value on the medical services of the

life care plan?

A. Yes.

Q. In Theresa Gamez's case, if my memory is

correct, out of all the medical, future medical life

care planned for, I think 1.9 million of it was for

assisted living care?

A. I believe so, a large number, yes.

Q. Okay. Did you use the same increased rate

factor on a person who comes to her home, assisted

living, as you do -- as you did with hospitals and

doctors?

A. Yes, it falls under medical services component

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on the consumer price index.

Q. So you did not consider that as a separate

category?

A. No.

MR. CHAVES: All right. Thank you.

THE WITNESS: Thank you, sir.

MR. CHAVES: I pass the witness, Your

Honor.

THE COURT: Mr. Warren.

MR. WARREN: Thank you, Your Honor.

CROSS-EXAMINATION

BY MR. WARREN:

Q. Dr. Dillman, I've got a couple of questions for

you. I understand that you did two reports, one in, or

tables let's call it. One that was done in October 7th,

2015 for purposes of this trial, right?

A. Yes.

Q. And you had earlier done one back on February

23rd, 2014?

A. Yes.

Q. And in both cases, you were trying to estimate

the future earning capacity for Ms. Gamez, correct?

A. Yes, sir.

Q. Okay. And you also in your report had listed

the earnings for Ms. Gamez and, first of all, did her

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earnings in 2013 exceed the earnings that she had in

2012?

A. Yes.

Q. And did her earnings in 2014 exceed the

earnings that she had in 2015 -- excuse me. In 2014, do

they exceed the earnings that she had in 2013?

A. Yes, sir, I think -- I thought I said that in

direct exam.

Q. And did you look at her earnings records

through the year 2015 to date at all?

A. No.

MR. WARREN: All right. May I approach the

witness, Your Honor?

THE COURT: You may.

Q. (BY MR. WARREN) I will show you, sir, the

employment records for 2015 --

A. Yes.

Q. -- from Allstate her employer?

A. Yes, sir.

Q. And I'll flip you to the records here. It

doesn't have the year end because we're not the end of

the year of 2015?

A. Not yet.

Q. Okay. But what it does is it gives the --

looks like bimonthly, every two week pay as we progress

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through the payroll ledger, correct?

A. Yes, sir.

Q. All right. Let's flip to the last page there,

I've tabbed it with a yellow marker. And this -- for

the record, page 7 -- the last page is dated through

October 6th; is that right?

A. October 6th, 2015, yes, sir.

Q. Which would include through the end of

September, I would assume?

A. Probably, yes.

Q. So that --

A. That would be three-quarters of the year.

Q. Three-quarters of the year. And what does it

indicate is her total earnings through three-quarters of

the year for 2015?

A. $52,639.87.

Q. All right. And so to figure out if we want to

extrapolate that for a complete year you would divide

that number by three, right, approximately?

A. To go to fourth, yes.

Q. Yes.

A. Or you could divide it -- you can divide this

whole number by .75.

Q. All right. Depending on how you do your math,

and if you do that, that would turn out to have an

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earnings roughly of just over $70,000 for this year?

A. Probably, yes.

Q. It sounds about, approximately right?

A. It sounds right if you assume that the last

quarter of is at the same rate as the first three

quarters.

Q. Sure. But there's having earned --

A. You can extrapolate it that way, yes.

Q. It's a fair way to look at it?

A. It is.

Q. Okay.

A. It is a fair way to look at it.

Q. And if she does continue to earn the last three

-- the last three months of the year the way she did

first three months -- the first nine months of the year,

then would she have earned more in 2015 than she did in

2014?

A. Yes.

Q. All right. And in looking at your calculations

then, first of all, when you look at that February 23rd,

2014, would you agree then that her -- well, what you

add to that earnings -- actual earnings you add all the

fringe benefits that you did in your chart; is that

correct?

A. That's correct.

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Q. And so when you're talking about earning

capacity total, that's the income plus the fringe

benefits?

A. Yes.

Q. And would you agree then that for the year 2013

that was what she actually earned and plus benefits

exceeded what you had listed for an earning capacity?

A. Yes.

Q. And would you agree with us for the year 2014,

what she actually earned plus benefits exceeded what you

had calculated for her earning capacity?

A. No. What -- I'm sorry. What -- she earned

more in 2013 than she did in 2012. She earned more in

2014 than she did in 2013.

Q. Correct.

A. If you continue at the rate that you have said,

she would have earned more in 2015 than she did in 2014.

Q. And in -- maybe I mis-phrased what I was

intending to say. So, in any event, if she continues

earning at the rate that she's earning in 2015, will she

then when you take income plus benefits, exceed what you

would had expected for her earning capacity?

A. If you're asking me if I were to use the

extrapolated 2015, my numbers would have been higher,

yes.

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Q. Okay. And so as far as your calculations and

records are concerned, for the last two and a half years

since this accident, she has met or exceeded what you

had calculated or estimated would be her earning

capacity, hasn't she?

A. I haven't done the past, but, I -- since the

base would have increased, the numbers would have

increased, that is correct.

Q. Sure. But the bottom line is, she's earning

more than she was before and has exceeded, so far, every

earning capacity forecast that you've put on your

February 23rd, 2014 --

A. Oh, of course.

Q. Okay.

A. Of course.

Q. And had this case gone to trial back in

February of 2014, we have another two years almost since

that date, and during that period of time, she has

exceeded what you had listed as her earning capacity

when you did your first report in February of 2014,

hasn't she?

A. Well, not necessarily, because you'll notice

that these are kept constant because I allow no increase

in the earnings, because what I do is offset the

interest in the increase. So the amount in current

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dollars stays the same. But if you're asking if you

would have normally done it and tried to do some sort of

a normal increase, yeah, that's probably be increased.

And if I were to do it again based on the annualized

2015, my numbers would be even higher.

Q. But she's meeting or exceeding your estimated

earning capacity for each of the past three years, isn't

she?

A. No. You can't do that. She's -- she has

suffered no loss of earning capacity that I can

determine for the past. That's all those numbers say.

Q. Right, but there was --

A. That's all they say.

Q. There was a two-year period where you estimated

what you thought would be her earning capacity, and now

we've past that two-year period and we can look back and

see that she passed what you had estimated?

A. No, what I did in the past is this would be the

absolute minimum of what her earning capacity would have

been, but there would have been normal increases. Those

normal increases haven't been included in the

calculations because the methodology could cause the

below market interest rate and you don't allow for

inflation, you only offset by the difference.

Q. In any event, Dr. Dillman, you agree that you

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can -- can you not state that she's had any lost past

earnings?

A. Oh, I can't say that, no. That's a vocational

matter.

Q. And you can't say that over the next two or

three years if she continues to work, as she's doing,

that she will have any lost earnings, can you?

A. I cannot say that, no, that's a vocational

matter, sir.

MR. WARREN: Pass the witness.

THE COURT: Any redirect?

MR. EDWARDS: Yes.

REDIRECT EXAMINATION

BY MR. EDWARDS:

Q. Dr. Dillman, you've got personnel experience in

your background, correct?

A. Yes, sir, I was a personnel director for the

City of Albuquerque, chairman of the personnel board of

the County of Bernailillo in New Mexico, chairman of the

Civil Service Commission for the City of El Paso, taught

personnel at the graduate level.

Q. Are you familiar with the phrase "at will

employment"?

A. Yes.

Q. What is "at will employment"?

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A. It just means that a person can be terminated

essentially for cause. Usually there are some, or

sometimes, there are some legislative causes that are

not allowed, but essentially, you can fire somebody

without a big reason.

Q. You can fire -- in Texas, an employer can let

an employee go for any reason as long as it's not the

wrong reason?

A. That's correct.

Q. Are you aware of any guarantee that Laura

Harris will stay in business?

A. No.

Q. No. Are you aware of any guarantee that

Theresa Gamez will be kept at her place of employment

till age 64?

A. No, sir.

Q. You mentioned about human capital, right?

A. Yes, sir.

Q. Can you explain that?

A. Human capital is what an individual has that

allows that person to earn money, would include their

education, their experience, their physical capacity,

their mental capacity. It's what a person brings to a

work place, and it is -- it is what the employer pays

for.

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Q. All right. So it, in essence, is the complete

person who is available in the marketplace?

A. That's correct.

Q. Now, if there's an injury that has an impact on

that human capital of a person, does that -- if there is

that kind of an injury, does that impact that person's

ability to get and keep work in the marketplace?

A. It impedes their -- it doesn't necessarily

eliminate their employability. It impedes their

competitiveness and it impedes the amount of potential

opportunities and alternatives available to the

individual.

Q. And if a person used to multitask and do three

tasks in her employment before injury, and can no longer

do that, and is down to one task --

MR. CHAVES: Excuse me, Your Honor, this is

going beyond the scope of his report and on Crawford.

THE COURT: Okay. Come on up here.

(The following bench conference is held.)

THE COURT: Again, I'm at a disadvantage

because I haven't seen his report. When you say, "goes

beyond his report," because I can't make a ruling

because I don't know that. Would you like to respond to

that?

MR. EDWARDS: This is in response to the

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cross-examination talking about --

MR. CHAVES: We didn't ask him anything

about Laura Harris. We -- he's saying it's in response

to my cross exam.

THE COURT: Is it?

MR. EDWARDS: They were cross-examining on

her business -- Laura Harris' business records. Laura

Harris is the employer.

THE COURT: No, I know that.

MR. EDWARDS: And this -- I'm talking about

her employment with Laura Harris right now.

MR. CHAVES: But he's gone yeah beyond that

he's saying -- he's talking about whether someone in the

work field, at will -- at will provisions. He was not

presented as an expert in that area.

THE COURT: You're going into a little bit

of that, right? And so the bottom line is, he gets to

redirect on it --

MR. CHAVES: Okay, yeah. All right.

THE COURT: -- on that issue. Let's narrow

it down.

(End of bench conference.)

Q. (BY MR. EDWARDS) So, Dr. Dillman, if a person

has lost, has demonstrated a loss of the ability to

perform certain tasks, does that impact a person's

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ability to get and keep work in the competitive

marketplace?

A. Well, obviously, it's a loss of certain part of

their human capital, which means their competitiveness

has been reduced. How much it has been reduced is a

vocational matter.

Q. And if a person used to be the top sales agent

and is no longer the top sales agent, you were shown --

remember the figures you were shown from the business

records?

A. Yes.

Q. Do you know -- is there any way to know how

much she would have earned but for this injury if she

had continued to be able to be the top salesperson?

A. No, sir.

Q. All right. The fact that she is making more

money now, if she loses her job tomorrow, your earning

capacity opinion is a good number to use, correct?

MR. CHAVES: Objection, leading.

THE COURT: Sustained.

Q. (BY MR. EDWARDS) You calculated this earning

capacity based on her 2014 earnings?

A. Yes.

Q. Of $64,000 a year?

A. I believe it was $68,862.

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Q. All right. If Mr. Warren is correct with his

extrapolation that it's actually $70,000, would these

numbers increase?

A. Yes.

MR. EDWARDS: Pass the witness.

THE COURT: Mr. Blanco.

REDIRECT EXAMINATION

BY MR. BLANCO:

Q. Dr. Dillman, this concept of human capital,

does it include anything for personal recreation, like

enjoyment of his life, or any other things that are

outside the area of work force?

A. No, sir, no, it doesn't include any

intangibles.

Q. So if the -- if the damages to a human being

also affect those lives, I mean, those part of our

lives, that's not calculated in your numbers?

A. Not at all.

MR. BLANCO: All right. Thank you.

Pass the witness.

THE COURT: Mr. Chaves.

MR. CHAVES: I have nothing further.

THE COURT: Mr. Warren.

MR. WARREN: Nothing further, Your Honor.

THE COURT: You may step down. Thank you

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very much for coming.

THE WITNESS: May I be excused?

THE COURT: You may.

MR. EDWARDS: At this time plaintiff calls

Randy Collins, Jr., by video.

THE COURT: Very good.

(Deposition of Mr. Randy Collins is played

but not transcribed at this time.)

THE COURT: That concludes Mr. Collins?

MR. EDWARDS: That does conclude

Mr. Collins, and Plaintiffs would offer be Exhibit 68,

and 69 and 70.

THE COURT: Any objections?

MR. CHAVES: No objection.

MR. WARREN: What was 68?

MR. EDWARDS: 68 is a black and white, 69

and 70 stills where he --

MR. WARREN: No objection.

THE COURT: They are admitted.

Call your next witness.

MR. BLANCO: Your Honor, Cross Plaintiff

calls Mr. Mike Garcia.

(The witness is sworn.)

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MIGUEL GARCIA,

having been first duly sworn, testified as follows:

DIRECT EXAMINATION

BY MR. BLANCO:

Q. Could you please state your name for the

record, Mr. Garcia?

A. Miguel A. Garcia.

Q. I told our jury when we started that you'd

rather have be called Mike; is that all right?

A. That's fine.

Q. Mr. Garcia, you've heard some parts of this

trial, you've been here sometimes?

A. Yes, sir.

Q. And you have been absent other times, right?

A. Yes, sir.

Q. Let's talk a little bit about, you know, going

back to school. I want to -- I want to talk about high

school. Remember?

A. Yes, sir.

Q. Okay. And remember, we need words, yes, no?

A. Yes.

Q. Okay. If you don't understand something I say

please tell me and I'll say it again.

A. Yes.

Q. Mr. Garcia, were you an A-student in high

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school?

A. No, sir.

Q. Did you -- did you have some trouble with some

of the schooling, some of the subjects?

A. Yes, sir.

Q. And Mr. Garcia, was -- were those troubles

eventually such that they prepared a special education

plan for you?

A. No, sir.

Q. Were you ever in special education that you

know of?

A. In elementary, I was.

Q. Okay. Tell us, what was it about school that

gave you trouble, if you remember?

A. The teachers. I was more like a hardworking

person, and I worked in the summertime, and I just -- I

went to the eleventh grade and I -- I got out of school

to work.

Q. What kind of work were you doing in the

eleventh grade, what were you doing?

A. I was -- I worked for a utility company

trimming trees away from power lines and I made foreman

real quick, lead foreman.

Q. And what about tree trimming did you like?

A. Yes, sir, I was very good at it. I would trim

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trees away from power lines, very dangerous work, and I

was real skillful in doing that.

Q. I understand that. What about doing that work

did you like?

A. Yes, I did like it.

Q. What was it that you liked?

A. Being out -- outdoors, nice weather.

Q. And how did you learn how to do that work? Are

you taught by somebody?

A. By a few other experienced climbers, older men.

Q. And how is it that you decide to do the --

around power lines cutting? That sounds like it's

dangerous?

A. Yes, it is, sir.

Q. How come you decide to do that?

A. Because I got very good at it and they send me

to all the hot shot areas that I needed to do -- that

needed to be done. I was -- I was the lead foreman and

top climber, and I was very good at it.

Q. Did that keep you busy?

A. Yes, sir.

Q. As we heard, you didn't finish eleventh grade,

or did you finish eleventh grade?

A. I finished eleventh grade.

Q. Did you ever go for the final GED or the

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diplomas?

A. No, sir, I didn't.

Q. How come?

A. I had too much work.

Q. Okay. You also were boxing those years?

A. Yes, sir.

Q. And we heard quite a bit about punches and so

forth. Were you good at boxing also?

A. I won five Golden Gloves.

Q. In terms of your strategy, or the boxing

strategy, did you allow the other people to hit you,

punch after punch after punch?

A. No, sir. That's the key to boxing, you hit and

not get hit.

Q. Right. Are there things that you do in boxing

or that you -- that you did in boxing to protect your

head?

A. Headgear.

Q. In terms of your record or your fighting

record, we understand that you were an amateur for a

while?

A. Yes, sir.

Q. And how many fights was that in the amateur?

A. I don't remember, I -- 17 and 3.

Q. Okay.

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A. That's the last I remember.

Q. We use the numbers 16 and 4. Do you think that

your record was 17 and 3?

A. Yes.

Q. Does that mean 17 -- I am actually kidding. 17

and 3 means that you won 17 and you lost 3?

A. Yes.

Q. And how old were you when you were doing this

fighting?

A. I started when I was 17.

Q. And when you turned professional, did you try a

professional bout?

A. I was like 23, 24.

Q. And by what time did you stop boxing?

A. I enjoyed the exercise, so I always done it,

but about 35.

Q. Okay.

A. Age 35.

Q. And what I'm saying is, not the exercise of it,

going out and training, but the actual fights when you

stopped?

A. Compete.

Q. Huh?

A. Talking about competing?

Q. Competing, yes.

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A. Yes, 35, 35.

Q. And you are how old, Mr. Garcia, when this

knockout happens? I understand you were knocked out

once?

A. Once.

Q. When -- when does that happen?

A. I was like 23.

Q. Twenty-three. And tell us about that. What

happens?

A. I got caught with a right hand.

Q. Lights out?

A. Yeah -- yes, sir.

Q. And how long does it take for you to recover,

to be back to where you were before the lights went

would go out?

A. A few minutes.

Q. Did you congratulate the guy?

A. After, yes.

Q. You had to, didn't you?

After that, were you vomiting?

A. No, sir.

Q. Did you go to the hospital?

A. No, sir.

Q. Were you dazed or did you have any thinking

problems after?

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A. No, sir.

Q. Did you keep on fighting?

A. Yes, sir.

Q. And to your best estimate, how many fights did

you have after that, the one knockout?

A. About six more.

Q. Six more fights. So from age 23 to age 35, you

only had six fights?

A. Yeah.

Q. Now, when you sparred, do you wear gear?

A. Yes, sir.

Q. And were you hit in the head hundreds and

hundreds of times when you sparred?

A. No, sir.

Q. We've seen a lot of movies, I understand, you

know, but did you do the same things, jumping rope,

punching the bags, you know, moving the -- the hands

quick?

A. Everything, yes, sir.

Q. Running?

A. Yes, sir, that was my main thing I enjoyed a

lot.

Q. While you're boxing and you're exercising, are

you able to write your own personal finances, like keep

your balance books and pay your bills and things of

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that?

A. My sister helps me, but yes, I can.

Q. Not now, right now, but what I'm saying before,

before this injury?

A. Oh, yes.

Q. And while you were boxing, did you have any

problems writing --

A. No problems.

Q. -- your bills?

A. No problems, sir.

Q. Okay. Our court reporter is going to get a

little testy if we speak at the same time, that's

normal, a normal conversation, but I'm gonna ask you to

wait until I finish my question before you answer, okay?

A. Yes, sir.

Q. That also helps you understand my question.

Okay. So before this crash with the truck, but after --

while you were boxing, did you ever have any trouble

handling your own bills or figuring your own banking

accounts, or taxes? Did you ever have any problems

doing that?

A. No, sir.

Q. Are you -- let's talk about motorcycles. When

do you first start riding motorcycles?

A. I got my license the same time I got my

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driver's license.

Q. Okay. And did you -- did you -- were you --

when you say you got your license, do you mean the

motorcycle license?

A. A little after I did the driving, I got my

motorcycle license.

Q. And -- about how old are you when you do get

the motorcycle driver's license?

A. Eighteen.

Q. Okay. And what type of motorcycles have you

driven since age 18?

A. I had a 650 Yamaha Special.

Q. Okay.

A. And a CB 900 Super Sport Honda.

Q. Okay.

A. And my Goldwing, three bikes.

Q. What about the Goldwing you liked?

A. Oh, I loved the Goldwing. It was -- I loved --

it was a laid back bike, going on a cruise, me and

Theresa enjoyed going on a ride. I'd drive slow, I

wouldn't drive very fast because Theresa didn't like

driving fast. Every time we'd go with a couple of

bikers, we'd stay behind, but they would wait for us

later on.

Q. Over the years, Mr. Garcia, as you drove either

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the other bikes or the Goldwing, did you develop a place

in your lane that you liked to travel?

A. Yes, sir.

Q. Where?

A. In the middle.

Q. In the middle of your lane?

A. Yes, sir, in the middle of my lane.

Q. Why? Why do you prefer that place?

A. Because my bike was real wide and I needed

space when I make my turn.

Q. Okay. Are you certified to drive your bike

before this traffic collision on Base? Did you have to

get a special permit to get it?

A. Yes, sir, I had to get a special permit to ride

on Base.

Q. Did you have to take a test on Base in order to

show them that you could drive -- could ride your

motorcycle?

A. Yes, sir, we did.

Q. And did you have -- I'm sorry.

A. We had to take a test, a written test and a

riding test.

Q. Any troubles taking the written test on the

questions for the -- for on Base riding?

A. No, sir.

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Q. Any trouble riding test?

A. No, sir.

Q. And how long had you had -- let me ask it this

way. When do you get that permit to ride on base?

A. It took about a year after I got on the Base so

I can ride my bike.

Q. And what is the reason that you are on Base?

A. I was an auto worker.

Q. For?

A. For ICI. We had a contract or with the Naval

Air Station.

Q. Okay. And so at one year after you start with

ICI, that's when you get your certification to ride on

Base?

A. Yes, sir.

Q. Okay. When do you start with ICI?

A. I believe it was 2005.

Q. About ten years ago?

A. Yeah, a long time ago, yes, sir.

Q. Okay. Let's -- I want to talk to you about the

day of the crash. Is that all right?

A. Yes, sir.

Q. When -- how is it that you-all decide to go to

the area of Sinton, or I think it was Mathis a little

earlier. What -- how do you-all decide to go there?

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A. My good friend Ruben wanted to -- we were going

to a restaurant and we were -- I was following them to

the restaurant.

Q. And going right before the -- right before the

truck and you crashed when the truck hits you, where are

you going to just before the crash happens?

A. I forgot the name of the restaurant.

Q. Okay. But what city or what area are you

going?

A. Sinton.

Q. Okay. And where had you come from? Where had

you been earlier that afternoon?

A. We were at a pork tasting contest.

Q. Okay.

A. In Mathis.

Q. When you travel with Ruben -- who else was

there with you?

A. Ruben and Shirley and Jesse and his wife.

Q. Okay. So we've heard from Shirley a little

earlier in the trial, Ruben was riding their motorcycle?

A. Yes, sir.

Q. Is there a special type of formation that you

follow with Ruben whenever you ride with him?

A. We don't drive as fast as they were. We just

stayed behind, and they wait on us, they pull over and

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wait on us.

Q. Okay. Now, you said that Theresa didn't like

speed, she didn't like --

A. Yes.

Q. -- to go fast?

A. Yes.

Q. So whenever you're in an open road or in the

interstate with Theresa back then, how fast would you

go?

A. 55, 60, 65 at the most on a straightaway.

Q. All right. Mr. Garcia, if I ask you to

describe for us how the crash happens, what images do

you see in your mind?

A. I see the 18-wheeler very briefly and it -- it

just -- it just hit me like a bullet, sir. I don't

recall, you know. I was coming around the turn and it

just struck me.

Q. Before you were coming around the turn, are you

in the center of your lane and the middle of your lane?

A. Yes, sir.

MR. BLANCO: May I approach, Your Honor?

THE COURT: Yes.

Q. (BY MR. BLANCO) 188 was a two-way road, true?

A. Yes, sir.

Q. Before the curve, the curve will come up on

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top, but before the curve -- and I don't want you to --

just tell me, I'm gonna put my pen, just tell me to move

to the right from the center until you tell me what was

your position --

A. Okay.

Q. -- as you rode that road?

A. Okay.

Q. Before the curve, okay? You tell me to stop.

A. Right there (indicating).

Q. Right here?

A. Yes, sir.

Q. I'm drawing at small rectangle. Is that where

you would ride your motorcycle?

A. Yes, sir.

Q. As a custom?

A. Yes, sir.

Q. Always? Did you -- Mr. Garcia, did you ever

ride your motorcycle all the way to the right near the

fog line on the road?

A. No.

Q. And would you ever -- do you ever ride your

motorcycle near the yellow lines?

A. No.

Q. For any purpose?

A. No, sir.

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Q. Please tell the jury why not.

A. Because my bike is real wide, it's three-foot

wide and it takes up a lot of room, a lot of space so

when I'm fixing to make my turns or when I -- I just

want -- I don't want -- usually my friends like to

stagger, like to be staggered which is the way --

Q. Like here?

A. Yeah, yeah, like that. And I like to stay in

the center and we staggered, so I -- I have a big bike,

that's the reason why I don't -- I don't like to --

MR. BLANCO: Your Honor, I would like to

inquire if the jury heard that response because they can

barely hear you. Can you hear me?

THE WITNESS: I'm sorry.

MR. BLANCO: Please tell us in the

microphone.

A. When I ride --

Q. (BY MR. BLANCO) Why is it that you do not

stagger, Mr. Garcia?

A. Because my bike's about three-foot wide and I

like to ride in the center of my lane at all times.

Q. Do you have any reason to believe that you were

not in the center of your lane as you're going through

the curve?

A. No, sir.

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Q. Are you in the center of your lane --

A. Yes, sir.

Q. -- as you're going to curve?

Now, Mr. Garcia, do you remember your --

when they took your testimony, your deposition; do you

remember that?

A. Yes, sir.

Q. Do you remember the things that you said in

your deposition? Not -- not actually, but do you

remember everything you said during your deposition?

A. Some, not -- I don't recall that well.

Q. Okay. I want you, sir, to -- to look into your

mind from memories of this crash. Do you still see the

truck across you coming from your right into your

left --

A. Uh-huh.

Q. -- stopped in front of you, is that what you

still see, sir?

A. No. No, sir.

Q. Do you still think -- do you still feel that

you're trying to avoid the truck by going to the right

of the truck --

MR. WARREN: Objection, leading, Your

Honor.


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MR. BLANCO: I am, Your Honor. I

apologize.

Q. (BY MR. BLANCO) Do you still see the truck

going -- I mean, trying to go to your right?

A. It was going to the right --

Q. No, you, you?

A. I was -- no, I didn't go to -- it happened so

fast. It just -- it just hit me like, like I said, like

a bullet. It was -- I was driving real smooth around

that curve and it just -- it just -- it hit me, I didn't

hit it, and it -- it caught my -- it caught me right

behind the fairing, and after that, I blacked out and I

was sliding on my back, that's what I recall, sir.

Q. Do you remember, Mr. Garcia, in your

deposition, how you told us -- I wasn't in the

deposition, but you told all of us --

A. Yeah.

Q. -- that you came to a stop and you see the

truck driver on the cell phone. Do you remember telling

us that?

A. Yes, I do.

Q. Okay. Is that -- are those images that you see

in your mind?

A. That was the image, yes, sir.

Q. And you still see those images?

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A. Yes, sir.

Q. And do you still see the images in your mind,

that suddenly, the truck accelerated and it run you

over?

A. Yes, sir.

Q. Do you still see the images in your mind that

you are trying to go around the back of the truck to

your right before --

MR. WARREN: Objection, leading, Your

Honor.


Q. (BY MR. BLANCO) Mr. Garcia, in your

deposition, do you tell us that you tried to go to the

right to try to go around the truck, the back part of

the truck?

A. Yes.

MR. WARREN: Again, Your Honor, this is

leading the (inaudible) --

THE REPORTER: Mr. Warren, can you use your

mike, please.

MR. WARREN: Yes. The objection is that

it's leading a critical part of the testimony and

leading the witness.

THE COURT: Try it one more time.

MR. BLANCO: I will, Your Honor.

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Q. (BY MR. BLANCO) Do you remember your testimony

at deposition, sir?

A. Yes.

Q. Okay. Do you -- even where this crash happened

real fast, and it hit you like a bullet, do you try to

go around the back of the truck to try to avoid it?

A. That's what I see in my image, sir.

Q. Okay. Do you have a memory, sir, of talking to

anybody after you slid off your bike, after you're on

the roadway, do you have any memory of talking to

anybody?

A. I was unconscious. I just remember looking up

and saw my damaged leg, my ankle was next to my knee and

then I saw Theresa, and I just broke out crying and then

I heard the helicopter coming. I don't recall anybody

asking me anything.

Q. You -- you see your leg, you see Theresa?

A. Yes.

Q. What is what you remember next?

A. I remember the helicopter. And the people were

talking to me to make sure that I was alive or -- they

wanted me to say stuff and I just don't remember what I

was saying but I was talking to them.

Q. And the helicopter, then you hear voices --

A. Yes.

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Q. -- and they're trying to prompt you to talk?

You can hear your voice talking but you don't know what

you're saying?

A. Yes, sir.

Q. Do you -- what is the next thing that you

remember?

A. I remember saying that -- that the truck that

it was in my lane, the truck was in my lane. That's

what I remember saying.

Q. Is the next thing you remember being in the

hospital?

A. Yes, sir. They -- they got me down at the

hospital. I remember that they told me down in the

hospital and rushed me to the emergency where I had to

get surgery right away.

Q. We have some information that you've had about

13 surgeries to your leg?

A. Yes, sir, I did.

Q. Was there a time, sir, where you were told that

they were gonna have to amputate your leg above the

knee?

A. Yeah.

Q. What did you say in response to that?

A. No.

Q. Why not?

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A. Because I wanted my legs so -- so they sent me

to -- they made phone calls and sent me to Houston --

Q. Okay.

A. -- to save it.

Q. And after all those surgeries, were they able

to only amputate a leg below the knee?

A. Yes, in Corpus, they were gonna amputate it

above my knee, I told them not to, so they sent me to

Houston and Houston -- Houston told me that we could try

to save the leg but we can't guarantee that it's gonna

stay well, so I told the doctor just cut it to where I

can best have a prosthesis, so he put a plate on my

left, below my knee and about eight bolts to hold it

together. The bone was split in the middle below my

knee. They told me that my leg was torn off my body.

Q. Mr. Garcia, do you understand that there's a

component of your case is how you feel about how your

leg looks; do you understand that part?

A. Yes.

Q. And sir, do you understand, that unfortunately,

there is a need for us to demonstrate to show what is it

that you see every day, is it all right, sir, if you

could show us, you take your prosthesis for about ten

seconds only and just show us briefly. Is it all right

with you, sir?

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76

A. Sure.

MR. BLANCO: Your Honor, permission for the

viewing?

THE COURT: You may.

A. I had to make special pants for my leg.

Q. (BY MR. BLANCO) Okay. And Mr. Garcia, we're

trying to do this -- the easiest way for you so ten

seconds is all I want, sir.

A. (Witness complies.)

THE COURT: You may stand if you need to

see.

A. Okay. It's skin grafts and I still got sores.

It needs to be aired out always, I need to have it aired

out for a year, so I'm gonna need -- I need special

equipment, like a van and wheelchairs and stuff like

that. It's horrible. It's a lot of work.

Q. Thank you, Mr. Garcia.

MR. BLANCO: Thank you, Your Honor.

Q. (BY MR. BLANCO) Mr. Garcia, have you noticed

even these days you have complications, that it's

difficult to take care of your leg?

A. Yes, sir, I have pain every day.

Q. Do you have pain to not just your -- not just

the remaining part of your leg, do you have pain to your

foot that is no longer there?

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77

A. Yes. I have phantom pains a lot, I have

throbbing a lot.

Q. When the pain -- does medication help the pain

or just knock you out, dumb you down?

A. The medication helped the pain, but I didn't

like taking the medication because it kind of messes up

your liver and -- and I'd rather -- I'm a grown man, I

can stand pain.

Q. Let's talk about what you used to like to do

before this crash for entertainment, okay? We know you

worked, so let's talk about work. Did you like work?

A. Yes, sir.

Q. What did you like? What is it about your work

that you liked?

A. The people I work with. I would prep up

equipment for the government, I'd sand, paint, grease

wheels. I was an auto worker at the Base, and then I

owned the Quality Tree Service on my own time.

Q. Did -- were you the kind of guy that if you

looked at a piece of equipment, whether it was a

helicopter parts, or you know, an auto worker, you know,

one of those trailers, that if you looked at it and you

could figure it out without any maps or anything like

that?

A. Yes, sir. We would build them and re --

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78

refurbish them, the 6K (sic) trailers and the helicopter

blade trailers.

Q. Uh-huh.

A. We would do it, that's what I would do.

Q. And when you were done, did the equipment that

you refurbish, did they look like rebuilt parts?

A. Yes, sir, brand new, they looked brand new.

Q. Do you have to during those -- let me ask it

this way just for foundation. Did you have -- did you

work on Base for ten, eleven years before this crash or

only eight years?

A. I worked on Base eight years.

Q. Eight years. And at ICI doing that type of

auto worker work?

A. Yes, sir.

Q. Okay. We saw some numbers from your income.

You were making about 32, 38,000 a year, more or less?

A. Yes.

Q. And was that good money?

A. It was okay, it would pay the bills, sir.

Q. Pay the bills. Did you have -- as part of your

work, did you have to fill out paperwork on the

equipment that you have put together back?

A. Yes, sir, every day.

Q. And did you have any problems with paperwork at

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79

all --

A. No, sir.

Q. -- before this crash?

Ruben Pena, we understand that he was a

friend of your supervisor?

A. He --

Q. Was it Pina or Pena?

A. Ruben Pena, yes. He was a safety trainer for

the training for the forklift training. He taught

forklift training and other equipment and me and him

would hang out and ride bikes, go to bike rallies.

Q. And if we heard from Doctor -- well, did you

ever get any awards or anything from ICI regarding your

level of work?

A. Bonuses, just --

Q. Just bonuses?

A. Bonuses, yes, sir, a lot of compliments from my

boss.

Q. Were you making extra money at times through --

through either extra overtime or bonuses?

A. Yes, sir, we would work overtime.

Q. So when -- if we saw yesterday, through

Mr. Johnson, that the first three months of the year you

were making enough money so that you would have hit

about $47,000, that would -- that was something that you

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80

were making bonuses on $2,000 --

A. At times.

Q. At times?

A. Yes.

Q. Okay. We also heard about that you got your

hand hurt at trimming trees and you were no longer

trimming trees while were you doing auto work. Is that

accurate?

A. I didn't get my hand hurt, only on the

accident.

Q. Only in the accident you hurt your hand?

A. I did get carpel tunnel surgery on my right

hand.

Q. Did carpel tunnel surgery from the hand, did

that stop you from trimming trees?

A. No.

Q. You kept on trimming trees until this crash?

A. Yes.

Q. And were you making good side money on those --

on that?

A. Sure.

Q. Every day, every week?

A. Just about.

Q. Remember the story you told me about a lady who

did not want to lose her tree because it was too close

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81

to the power lines and you had to call -- you had to cut

it at an angle if you had to do it right?

MR. WARREN: Your Honor, I object, this is

certainly leading and testifying by the attorney.


Q. (BY MR. BLANCO) Was there many a time where

you had to you do some special work on a tree that you

feel pretty proud about?

A. Oh, yes, sir, a lot of them, plenty of times.

Q. Could you tell the jury one time about how you

did a very difficult job?

A. I've done a lot of hard, difficult jobs when

trees are growing over main power lines, and safety has

always been in my life real strongly because I used to

trim trees from wires, power lines and I used to -- they

used to send me to do hotshots where people didn't want

you cutting the trees just a little bit so we had to do

very light work and go around the wires, be real -- and

the wires were high voltage wires and it just took a lot

of skill.

Q. Do you have to figure things out when you're

still on the ground up there, how you're gonna do it?

A. Yes, sir, exactly.

Q. Is it correct that once you're up there in the

branches, you kind of lose sense of where you are, you

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82

have to be very, very attentive?

A. Very careful. You could go out there and tie

in and rope, saddle, pruner, everything, everything, you

know, a little at a time.

Q. Did you ever have -- I'm sorry. All of your

years of motorcycle riding, did you ever have a crash?

A. No, sir.

Q. This is your first one?

A. Yes, sir.

Q. Going back to the day of the crash, the night

before, did you have plenty of sleep?

A. Yes, sir.

Q. Were you rested as you rode that morning over

towards to Mathis?

A. Yes, sir, I was rested.

Q. I'm gonna talk to you about the beer or

drinking before the crash, okay?

A. Uh-huh.

Q. Do you have a memory before the crash whether

you had anything to drink?

A. I recall one beer.

Q. Do you have any rules or did you have any rules

for yourself before this crash as when you were -- as

the time that you are driving motorcycles, how many

alcoholic beverages you would allow yourself to have?

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83

A. Yes, sir.

Q. What was your rule?

A. Two.

Q. Two beers?

A. Two beers. Usually if I was out of town real

far out, I would just drink two beers.

Q. Okay. Would you allow time between the time

you drink and the time you got back into your bike?

A. Yes, sir.

Q. Remember the pulled pork tasting?

A. Yes.

Q. Were you accused of doing a little bit more

than just tasting?

A. Yes, sir.

Q. In your mind, were you just tasting the pulled

pork?

A. Yes, sir, I was tasting it, but it was pretty

good, just a little more than I was supposed to.

Q. Okay. In terms of -- I understand that there

was crackers and water?

A. Yes, sir.

Q. And did they allow you to take anything other

than crackers and waters in between the tasting?

A. No.

Q. Okay. And after you were all done tasting, did

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you leave right away toward Sinton?

A. Yes, sir, Ruben mentioned about the restaurant.

Q. Do you have a memory at the hospital of telling

anyone that you had three beers that day?

A. No.

Q. But for sure, you remember one?

A. Yes.

Q. Were you ever told by anybody what your blood

alcohol level was at the hospital?

A. Yes.

Q. It was below zero, right?

A. Yes.

Q. Going back -- and I'm sorry I jumped. Going

back to the things that you like to do, is fishing one

of them?

A. Yes, sir.

Q. What about fishing you like?

A. I used to love to go surf fishing. I can't do

that no more because of my leg.

Q. Sure.

A. But they -- they throw it out for me and bring

it back to my truck so that's all right. There's a lot

of things I can't do that I used to do.

Q. Right. Did you hear your sister Belinda talk

about your room?

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85

A. Yes.

Q. Is she right?

A. Yes.

Q. Does it embarrass you not to be able to take

care of your room?

A. I'm gonna take care of it, it's just right now,

I can't.

Q. Do you these days need Belinda to take care of

your money and to take care of your bills and everything

else?

A. She helps me a lot, yes, when I need it.

Q. Can you do it?

A. Sure.

Q. You can write checks, right?

A. Yes, sir.

Q. And you believe, you think that you can --

strike that. Let me ask it a different way. Do you

think that you can handle your balance -- personal

balance checking account?

A. Yes, sir.

Q. Do you know if you ever had any trouble with

overdraft or not enough money, or things just don't make

sense to you?

A. When I was married, I did.

Q. All right. What do you still do, these days to

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have some enjoyment of your life, what do you do?

A. I -- I've always liked to exercise, and I like

to eat, so I got to stay -- I do stand, I can stand, and

exercise in my garage. My son bought one of those that

you lay down and you work, I guess, it's a Chuck Norris

thing, and that helps me a lot, and then I hit the bag

still sometimes. In moderation, because my leg starts

hurting after I have it on for about an hour or so, it

starts hurting so I take it off and rest it, and then I

continue on, and I sweat, you know. He put a bag

underneath and I sweat, and that's what I do for

entertainment to help my weight down, to keep my weight

down.

Q. Do you have any grandchildren?

A. Yes, sir, I have seven.

Q. Do you play with them?

A. All the time.

Q. Is that a good thing for you?

A. Oh, I love them all.

Q. If you didn't have your grandchildren, it would

be rougher?

A. (Nodding head up and down.)

Q. Other than them hitting that bag sometimes, and

playing with your grandchildren, do you do much of

anything else?

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A. I like to mess with my plants. I got flowers

and around -- I had a -- I live in a corner house and I

-- we didn't have sidewalks so I had the City gave me

permission to make a sidewalk so -- and I just put a

ramp in the back of my house, not in the front, so I get

out through the back all time in my Jazzy, and I spend

time with my grandkids and I mess with -- we water

plants in the morning when they were staying there,

yeah, especially my grandson.

Q. You do follow the doctor's instructions to take

care of your -- of your hand and to take care of your

mind and to take care of your leg, right?

A. Yes, sir.

Q. The leg doesn't always work out well?

A. Not really. They say I need therapy all the

time. I soak it in hot water, I -- I work my hands a

lot. My hands, I can't close my left hand anymore, but

I can still hit the bag slowly.

Q. Can you -- can you type things up or can you

button, do you need help with the left hand?

A. I have a hard time.

Q. You have a hard time. Are you doing the best

you can?

A. Yes, sir, I am.

Q. Are you giving up?

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A. I'm not giving up, sir. I -- I live alone and

I'm all right.

Q. In terms of moving around, we know you still

drive a little bit, right?

A. Yes, sir, I do.

Q. No more motorcycles?

A. No more motorcycles.

Q. Is your prosthesis the only way that you move

around or do you use walkers and chairs?

A. I have a walker and I have a -- I have

crutches. At times I need to use those.

Q. We saw Dr. Dillman, you know, now use a

motorized chair. Do you also use one?

A. I have one.

Q. You use one?

A. And I have another one on layaway.

Q. A manual one?

A. A Jazzy, a better one.

Q. A different type. All right. Mr. Garcia, is

there any way that you were anywhere else other than in

your lane when the truck hit you?

A. I was in my lane, sir.

MR. BLANCO: Pass the witness, Your Honor.

THE COURT: Do you have any questions?

MR. EDWARDS: I do.

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THE COURT: I think we're gonna break for

lunch because we -- I think -- it just be best if we do

it at this time.

Please be reminded of the instructions, and

I need you back at 1:15.

THE BAILIFF: All rise for the jury.

(Jury exits courtroom.)

(Noon recess.)

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90

THE STATE OF TEXAS *

COUNTY OF NUECES *

I, Sara E. Rivera, Official Court Reporter,

in and for the 117th District Court of Nueces County,

State of Texas, do hereby certify that the above and

foregoing contains a true and correct transcription of

daily copy transcript of all portions of evidence and

other proceedings requested in writing by counsel for

the parties to be included in this volume of the

Reporter's Record, in the above-styled and numbered

cause, all of which occurred in open court or in

chambers and were reported by me.

WITNESS MY OFFICIAL HAND, this the 11th day

of December, 2015.

/s/ Sara E. RiveraSARA E. RIVERA, Texas CSR 4626Expiration date: 12/31/2017Official Court Reporter117th District Court901 Leopard Street, Room 901.01Corpus Christi, Texas 78401361-888-0658

Documents

2015-12-11 Everett Dillman & Miguel Garcia (Direct)