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involving an award for past disfigurement but not future and intimating that because the jury was instructed to avoid compensating twice for the same loss, it may have compensated for the scar's permanency through its award for past disfigurement
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No. 04-16-00260-CV
06-28-2017
Mario MAURICIO, Appellant v. Sorayda CERVANTES, Appellee
MEMORANDUM OPINION
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2013-CI-07395
Honorable Michael E. Mery, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice AFFIRMED
This is an appeal from a judgment awarding damages for injuries sustained in an automobile accident. Appellant contends the jury's verdict on damages is against the great weight and preponderance of the evidence and that incurable jury argument resulted in an improper verdict. We affirm the judgment of the trial court.
BACKGROUND
On February 11, 2012, appellant, Mario Mauricio, and appellee, Sorayda Cervantes, were both driving in a parking lot when a collision occurred between their vehicles. As a result, Mauricio suffered lower back and neck injuries, and his forearm and finger were also injured when the airbag deployed. Mauricio was treated by a chiropractor and a pain management doctor. Cervical and lumbar MRIs showed herniated discs. Mauricio received an epidural steroid injection in his lower back, to which he responded very well. He also received three epidural steroid injections in his neck, but continued to have persistent neck pain with progressive radiculopathy, i.e., numbness and tingling in his right arm and left hand and muscle weakness. In mid-October 2012, the pain management doctor referred him to a neurosurgeon.
But before he could see the surgeon, Mauricio was involved in a second automobile accident when he was rear-ended by Aureliano Marin on December 31, 2012. A cervical MRI conducted after the second accident showed that the disc herniation in Mauricio's neck had increased. In June 2013, Mauricio underwent neck surgery.
Mauricio sued Cervantes and Marin for damages, but upon Cervantes's motion, the claims against Marin were severed into a separate suit and were eventually settled. The Cervantes lawsuit was tried to a jury, who found Mauricio 45% responsible for causing the accident and Cervantes 55% responsible. The jury awarded Mauricio $1,400 for past physical pain, $2,500 for past physical impairment, $24,000 for past medical expenses, $3,300 for past lost earnings, and $3,000 for past disfigurement. The jury found no mental anguish damages and awarded nothing for future damages. The trial court rendered judgment consistent with the jury's verdict for a total damages award of $31,469.64, including prejudgment interest and court costs. Mauricio filed a motion for new trial, which was denied by the trial court.
On appeal, Mauricio contends the jury's failure to award the following damages is against the great weight and preponderance of the evidence: (1) future disfigurement and future physical impairment; (2) past and future mental anguish; and (3) the full amount of past medical care expenses. In addition, he contends that a reference made to the settled lawsuit during closing arguments constituted incurable jury argument.
DAMAGES
Sufficiency: Standard of Review
"When a party attacks the factual sufficiency of an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence." Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). "The court of appeals must consider and weigh all of the evidence, and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust." Id. In conducting a factual sufficiency review, a reviewing court "must not merely substitute its judgment for that of the jury." Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).
In setting the amount of damages, the jury has great discretion. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986); see also Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 566 (Tex. 2002) ("In determining damages, the jury has discretion to award damages within the range of evidence presented at trial."). A jury is "not tied to awarding damages exactly as requested by the injured party." MEMC Pasadena, Inc. v. Riddle Power, LLC, 472 S.W.3d 379, 408 (Tex. App.—Houston [14th Dist.] 2015, no pet.). The jury must judge the credibility of the witnesses, assign the weight to be given to witness testimony, and resolve any conflicts or inconsistencies in the evidence. Barrajas v. VIA Metro. Transit Auth., 945 S.W.2d 207, 209 (Tex. App.—San Antonio 1997, no writ). When confronted with conflicting evidence, the jury may believe one witness and disbelieve another. Golden Eagle Archery, 116 S.W.3d at 774-75; McGalliard, 722 S.W.2d at 697. The jury is not bound by expert testimony on the amount of damages, and it may disregard physician testimony on both the necessity of treatment and the causal relationship between the accident and the plaintiff's injuries, even if that testimony is not contradicted. McGalliard, 722 S.W.2d at 697; Barrajas, 945 S.W.2d at 209.
The Evidence at Trial
The evidence at trial showed that Cervantes broadsided or T-boned Mauricio's car in a parking lot. Both of Mauricio's front airbags deployed. EMS arrived at the scene of the accident, but Mauricio was not treated. Five days later, Mauricio was treated by Dr. David Miller, a chiropractor. Dr. Miller referred Mauricio to a pain management clinic, where he first saw Dr. Michael Kruczek, an anesthesiologist, on February 27, 2012. Mauricio complained of low back and neck pain and he had also suffered a left forearm burn and injury to his right index finger from the airbag deployment. Cervical and lumbar MRIs conducted on April 23, 2012 showed disc herniation, specifically "a 5 mm disc protrusion/herniation at C6-7 level with disc injuries also at the C2-3 and C3-4 and C4-5 levels." Dr. Kruczek testified that the cervical MRI showed a 4.5 mm herniated disc at C3-4 and a C2-3 disc tear. In May 2012, Mauricio received a lumbar epidural steroid injection to treat his low back pain; he responded very well to the injection. On July 23, 2012, Mauricio received his first cervical epidural steroid injection; he received temporary relief following the injection, but continued to suffer neck pain as well as numbness and tingling in the right arm and left hand and muscle weakness. He received additional cervical injections on September 10, 2012 and October 15, 2012. Because the neck pain persisted after the third injection, Dr. Kruczek referred Mauricio to a neurosurgeon for evaluation. At that time, Dr. Kruczek considered Mauricio to be a surgical candidate. In his notes, Dr. Kruczek stated that if Mauricio was not determined to be a surgical candidate, he would be eligible for a booster injection in three months. Dr. Kruczek agreed that only a surgeon could determine whether surgery was warranted.
Mauricio was first evaluated by a neurosurgeon, Dr. Michael Leonard, on January 14, 2013, approximately two weeks after the second automobile accident. In the second accident, Mauricio was rear-ended at "road speed." Dr. Leonard described Mauricio as suffering from ongoing and persistent neck pain with paresthesia which had been exacerbated by the second accident. A second MRI taken in February 2013 showed increased disc herniation/protrusion at C3-4 and C4-5, as well as a 3 mm disc bulge at C5-6 that was not present on the first MRI. Dr. Leonard recommended that Mauricio undergo an anterior cervical discectomy with fusion at C3-4 and C4-5.
Dr. David Dennis performed the surgery on June 4, 2013. Although Dr. Dennis first opined that the surgery was necessary as a result of the first accident, he could not definitively say which accident necessitated the surgery. He agreed that as of the date of the second accident, it had not yet been determined whether surgery was warranted and also noted that Mauricio's neck pain increased after the second accident. He testified that the second MRI showed increased disc herniation, and also stated that bad discs can sometimes worsen over time.
Mauricio spent six weeks recovering from surgery and could not work during that time. The neck surgery accomplished pain relief, but left Mauricio with a scar on the front of his neck. In addition, because of the cervical fusion surgery, Mauricio, a commercial truck driver, is now unable to turn his neck in a normal manner and must turn his entire body from the waist. The jury was instructed to determine the amount of money, if any, that would compensate Mauricio for his injuries that resulted from the occurrence in question; in other words, the jury was told that it could not consider the second accident in determining the amount of damages. In addition, the jury was instructed not to compensate twice for the same loss. Economic vs. Non-Economic Damages
When a person suffers personal injuries, the damages fall within two broad categories—economic and non-economic damages. Golden Eagle Archery, 116 S.W.3d at 763. Traditionally, economic damages are those that compensate an injured party for lost wages, lost earning capacity, and medical expenses, while non-economic damages include compensation for pain, suffering, mental anguish, and disfigurement. Id. Damages for physical impairment are another type of non-economic damages. See id. at 763-64.
When reviewing an award of non-economic damages, courts of appeals should conduct a review of each category of damages awarded, considering the evidence unique to each category, to determine whether the award for that category is against the great weight and preponderance of the evidence. Id. at 773. If, considering the evidence unique to each category, the appellate court determines that the award was against the great weight and preponderance of the evidence, the court then considers all of the overlapping evidence, together with the evidence unique to each other category, to determine if the total amount awarded in the overlapping categories is factually sufficient. Id.
Future Disfigurement
"Disfigurement has been defined as that which impairs the appearance of a person, or that which renders unsightly, misshapen or imperfect, or deforms in some manner." Doctor v. Pardue, 186 S.W.3d 4, 18 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). "The matter of future disfigurement is necessarily speculative and there is no mathematical yard stick by which one can measure damages for it." Tri-State Motor Transit Co. v. Nicar, 765 S.W.2d 486, 494 (Tex. App.—Houston [14th Dist.] 1989, no writ). "Each case must be judged on its own facts and considerable discretion must be vested in the jury." Id.
Here, the jury awarded Mauricio $3,000 for past disfigurement and $0 for future disfigurement. Mauricio's wife testified that the scar on the front of Mauricio's neck from the surgery was about 1 to 1.5 inches long. The jury was able to view the scar when Mauricio testified, though there are no photographs documenting the scar in the record before us. Mauricio argues that because the jury acknowledged his past disfigurement, it should have also awarded him damages for future disfigurement since the scar on his neck is permanent. The jury, however, was instructed not to "compensate twice for the same loss." There was no evidence that Mauricio was embarrassed by the scar or would suffer embarrassment in the future. See Hopkins County Hosp. Dist. v. Allen, 760 S.W.2d 341, 344 (Tex. App.—Texarkana 1988, no writ) (affirming award for future disfigurement where there was evidence that plaintiff would suffer future embarrassment caused by the disfigurement). In addition, the jury also heard evidence that Mauricio suffered burns to his finger and forearm when the airbag deployed after the first accident. It is equally possible that the jury decided to compensate Mauricio for the temporary disfigurement of his finger and forearm, and not for the surgical scar. Thus, we have no basis to disturb the jury's finding of zero damages for future disfigurement, and we overrule this issue on appeal.
Past Medical Care Expenses
In a personal injury case, a claim for past medical expenses must be supported by evidence that (1) the plaintiff's injuries were caused by the defendant's negligence, and (2) the medical treatment was necessary and the charges for the treatment were reasonable. See Texarkana Mem'l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 840 (Tex. 1997). "A jury may not . . . arbitrarily assess an amount neither authorized nor supported by the evidence presented at trial." First State Bank v. Keilman, 851 S.W.2d 914, 930 (Tex. App.—Austin 1993, writ denied). "In other words, a jury may not 'pull figures out of a hat'; a rational basis for calculation must exist." Id. (quoting Neiman-Marcus Grp., Inc. v. Dworkin, 919 F.2d 368, 372 (5th Cir. 1990)). However, the "jury generally has great discretion in considering evidence on the issue of damages." Lanier v. E. Founds., Inc., 401 S.W.3d 445, 455 (Tex. App.—Dallas 2013, no pet.). We will not disregard the jury's damages finding merely because "the jury's reasoning in arriving at its figures may be unclear." Keilman, 851 S.W.2d at 930.
Mauricio contends the jury erred in awarding him $24,000.00 in past medical care expenses when the evidence showed that his total medical expenses were $59,363.45. Plaintiff's Exhibit #21 is a medical expense summary for "collision date: 2-11-12." It shows that medical expenses related to the February 11, 2012 accident totaled $27,350.40 for the four epidural steroid injections, diagnostic imaging, and 50 chiropractor visits. Plaintiff's Exhibit #22 is a medical expense summary for "collision date: 12-31-12." It shows that medical expenses related to the December 31, 2012 accident totaled $32,013.05, primarily resulting from the surgery.
"'[P]roof of a causal nexus between the event sued upon and the damages claimed is required.'" Jackson v. Gutierrez, 77 S.W.3d 898, 902 (Tex. App.—Houston [14th Dist.] 2002, no pet.). Based on the evidence in the record before us, the jury could have determined that the medical bills incurred after the second accident were not attributable to Cervantes's negligence. Although Dr. Kruczek, Mauricio's pain management doctor, testified that, in his opinion, Mauricio was a surgical candidate prior to the December 31, 2012 accident, Mauricio was never actually evaluated by a surgeon until after the second accident. Dr. Kruczek's notes indicate that if the surgeon decided not to proceed, Mauricio could return for a booster injection in his neck. Both Dr. Kruczek and Dr. Dennis testified that a surgeon must be the physician who decides whether surgery is warranted. Although Dr. Dennis testified that Mauricio's neck pain increased after the second accident, he agreed that "as of the date of the second accident, it had not yet been determined by a physician that [Mauricio] was going to be required to have surgery on his neck." Dr. Dennis testified that the second accident caused increased herniation of the discs in Mauricio's neck, but was unable to say to what extent, if any, the second accident caused the increase. Accordingly, evidence was before the jury on which it could find that not all of Mauricio's past medical expenses were caused by the first accident, i.e., by Cervantes. Because the award for past medical care expenses was within the range of evidence presented, and because it was within the jury's province to resolve the conflict as to whether surgery was required after the first accident, we hold the evidence is factually sufficient to support the jury's award of $24,000.00 for past medical care expenses. See Low, 79 S.W.3d at 566. We therefore overrule Mauricio's issue on past medical care expenses.
In the same vein, the jury could have determined that some of the past lost earnings were not due to the occurrence in question, i.e., the collision with Cervantes. In any event, we hold that Mauricio has waived any complaint related to lost wages due to inadequate briefing. His brief contains no legal citations regarding lost wages. See TEX. R. APP. P. 38.1(i).
Future Physical Impairment
"'Physical impairment' encompasses loss of the injured party's former lifestyle, the effect of which must be substantial and extend beyond any pain, suffering, mental anguish, lost wages, or diminished earning capacity." Kroger Co. v. Brown, 267 S.W.3d 320, 324 (Tex. App.—Houston [14th Dist.] 2008, no pet.). "Indeed, if other elements such as pain, suffering, mental anguish, and disfigurement are submitted, there is little left for which to compensate under the category of physical impairment other than loss of enjoyment of life." Golden Eagle Archery, 116 S.W.3d at 772. The "effect of any physical impairment must be substantial and extend beyond pain, suffering, mental anguish, lost wages or diminished earning capacity." Id.; Perez v. Arredondo, 452 S.W.3d 847, 862 (Tex. App.—San Antonio 2014, no pet.)
The jury awarded Mauricio $2,500 for physical impairment sustained in the past and $0 for future physical impairment. Mauricio argues that the jury's finding of zero damages for future physical impairment is against the great weight of the evidence because his future impairment is the same as his past impairment in that he "is no longer able to simply turn his head to look from side to side, he must turn at the waist, and is limited in range of movement in his neck when looking up. This impairment is problematic in that Mauricio makes his living as a truck driver." He contends there is no evidence that the impairment will improve in the future because he will forever have a range of motion deficit in his neck.
By the time of trial, however, Mauricio had returned to normal activity and was working. Mauricio testified that he returned to work as a truck driver in July 2013 and was able to compensate for the motion deficit by turning his entire body from the waist. By its verdict as a whole, it appears the jury believed that Mauricio, although injured as a result of the first accident, was better at the time of trial. The medical testimony indicated that Mauricio's neck pain was resolved by the surgery. Further, the evidence showed that the numbness and tingling in his arms and hands that he suffered from after the first accident but before the second accident, and which made it difficult for him to drive, were also resolved by the time of trial. Thus, we cannot conclude that the jury's finding of zero dollars for future physical impairment is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Accordingly, we overrule his issue related to physical impairment.
Mental Anguish
An award of mental anguish damages requires that a plaintiff present "direct evidence of the nature, duration, and severity of [his] mental anguish, thus establishing a substantial disruption in [his] daily routine." See Latham v. Castillo, 972 S.W.2d 66, 69-70 (Tex. 1998); Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). In the absence of direct evidence, the record must reveal evidence of "a high degree of mental pain and distress" that is "more than mere worry, anxiety, vexation, embarrassment, or anger" to support an award of damages for mental anguish. Parkway, 901 S.W.2d at 444. The record must reflect more than the existence of "mere emotions." Id. at 445.
Mauricio contends that he agonized over being able to provide a living for his family and being unable to play with his children. He was forced to decrease his exercise routine of jogging to lower his weight in an effort to prevent diabetes. His wife testified that at times he could not get comfortable in bed and would lie on the floor groaning in pain. He became worried about regaining the feeling in his hand and became withdrawn socially.
After reviewing the record, we cannot say Mauricio met the high standard for mental anguish established by existing precedent. Worry is a "mere emotion" which does not reflect "a high degree of mental pain and distress" and does not amount to a "substantial disruption" of a daily routine. Id. at 444-45. In view of the high standard established by Parkway, we hold that the jury's failure to award past or future mental anguish damages was not against the great weight and preponderance of the evidence. We thus overrule Mauricio's complaint regarding mental anguish damages.
IMPROPER JURY ARGUMENT
In his final issue, Mauricio argues that defense counsel improperly argued to the jury that Mauricio was "double dipping," thereby suggesting he engaged in wrongful conduct. He goes on to argue that the trial court abused its discretion in severing the Cervantes case from the Marin case (the defendant from the second accident). He additionally argues that counsel wrongfully informed the jury in violation of the trial court's in limine rulings that a settlement had been reached in the Marin lawsuit, thereby implying that Mauricio had already been compensated for his damages.
The jury argument concerning "double-dipping" was as follows:
Now, when you have that [referring to Dr. Dennis's testimony that there is no way to prove which accident led to the need for surgery] and you couple that with the fact that we know Mr. Mauricio had a second suit going on, remember at one point he brought the action of this lawsuit also against that second driver. The second accident driver, the guy who ran - - who hit him from behind and then that was spun off and it became its own lawsuit on its own. And you heard Mr. Bindock talk about that early on in this case. And you heard Mr. Mauricio say, well, what he's trying to attempt in that lawsuit is trying to recover for his damages, his injuries, whatever, from that second accident. Well, did I miss something here? It sounds like he's trying to get it in this accident. Sounds like double dipping.No objection was lodged. Later, Cervantes's counsel argued:
We've already talked about earning capacity in the future because that's future damage. Disfigurement in the past, the scar. Well, that's related to the surgery. And the scar occurred because of the surgery, because anything that's tied into the occurrence of the surgery, which would be post second accident, is on the second lawsuit. That's why he filed. That's why he has gone forward with the same lawyer and pursued those claims against that other driver occurring 10 months later in a separate action now and that was the basis and the reason for that.At that point, Mauricio's counsel objected. The trial court sustained the objection and asked counsel to move on. Mauricio's counsel then asked for a mistrial, which the trial court denied. Mauricio did not complain about this second argument in his motion for new trial. See TEX. R. CIV. P. 324(b)(5) (motion for new trial is prerequisite to complain about improper jury argument on appeal).
Generally, in order to obtain a reversal on the basis of improper jury argument, an appellant must prove that: (1) an error was made in argument; (2) the argument was not invited or provoked; (3) the error was preserved by the proper objection, motion to instruct, or motion for mistrial; and (4) the argument was not curable by an instruction, prompt withdrawal, or reprimand. Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex. 1979); Macias v. Ramos, 917 S.W.2d 371, 375 (Tex. App.—San Antonio 1996, no writ). And, the appellant must also prove "that the argument by its nature, degree and extent constituted reversibly harmful error," and "that the probability that the improper argument caused harm is greater than the probability that the verdict was grounded on the proper proceedings and evidence." Reese, 584 S.W.2d at 839-40.
It is clear from the record that Mauricio failed to object to the "double dipping" comment, and has therefore waived his complaint unless he can show the harm to be incurable. Mauricio argues that harm is shown because the jury did not award future damages and it did not award the full amount of past medical expenses and lost wages. We have, however, already concluded that the jury's damages awards were not against the great weight and preponderance of the evidence. Based on the evidence presented, the jury was free to disregard all evidence of damages resulting from the surgery. Thus, Mauricio has failed to show that the "double dipping" comment is more probably the reason for the jury's findings than was the evidence presented at trial. Accordingly, we overrule Mauricio's final issue on appeal.
CONCLUSION
Having overruled all of Mauricio's issues on appeal, we affirm the judgment of the trial court.
Rebeca C. Martinez, Justice