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holding that jury could have reasonably discounted evidence of pain, given that it consisted of plaintiff's testimony and statements he made to doctors, apart from x-ray and MRI findings that weren't definitive and chiropractor's testimony about those findings
Summary of this case from Hunter v. Tex. Farm Bureau Mut. Ins. Co.Opinion
NO. 01-20-00131-CV
03-30-2021
Chidi ONONIWU, Appellant v. Theodore EISENBACH, Appellee
Anthony L. Bannwart, Jerry W. Mason, John C. Mitchell (Of Counsel), BANNWART & ASSOCIATES, P.C., 7324 Southwest Freeway, Ste. 830, Houston, Texas 77074, for Appellant. Michael Cancienne, Caroline Carter, JORDAN LYNCH & CANCIENNE PLLC, 1980 Post Oak Blvd., Ste. 2300, Houston, Texas 77056, for Appellee.
Anthony L. Bannwart, Jerry W. Mason, John C. Mitchell (Of Counsel), BANNWART & ASSOCIATES, P.C., 7324 Southwest Freeway, Ste. 830, Houston, Texas 77074, for Appellant.
Michael Cancienne, Caroline Carter, JORDAN LYNCH & CANCIENNE PLLC, 1980 Post Oak Blvd., Ste. 2300, Houston, Texas 77056, for Appellee.
Panel consists of Chief Justice Radack and Justices Goodman and Farris.
Gordon Goodman, Justice
This appeal concerns a personal injury suit arising out of a car accident. Chidi Ononiwu sued Theodore Eisenbach and obtained a jury verdict awarding him $410.18 in medical expenses. But Ononiwu appeals contending the verdict should have been better. In two points of error, Ononiwu contends that:
(1) the trial court abused its discretion by ruling that his expert, a chiropractor, was unqualified to testify about a lumbar spine MRI report; and
(2) the jury's award of zero damages for past physical pain and impairment is against the great weight and preponderance of the evidence.
We affirm.
BACKGROUND
Ononiwu sued Eisenbach for negligence seeking damages for past and future physical pain, physical impairment, and mental anguish. At trial, Eisenbach stipulated to liability for the accident and the issue of damages went to a jury.
Three witnesses testified, Ononiwu; Eisenbach; and a non-treating chiropractor, Dr. Eric Randolph. Ononiwu also introduced affidavits on his medical expenses that attached medical records concerning his treatment and its cost.
Ononiwu's Testimony
Ononiwu testified that he was stopped at a red light when Eisenbach rear-ended him. Ononiwu did not know how fast Eisenbach was traveling at the time of the collision. But Ononiwu's airbags did not deploy, and he agreed that it was a minor accident. After the collision, Ononiwu and Eisenbach got out of their cars and exchanged information. They did not call the police. Nor did Ononiwu call an ambulance or go to an emergency room. When Ononiwu left the accident scene, he went grocery shopping and then returned home and watched television. Ononiwu felt pain in his lower back down into his hip and in his right wrist two or three days later. He iced his wrist but did not take any painkillers.
Ononiwu first sought treatment the following week. He went to a chiropractic clinic two or three times, where he received an x-ray test and was evaluated. But Ononiwu switched to another clinic, DeLoache Chiropractic, eight days after the accident. At trial, he testified that he changed clinics because DeLoache was closer. At his deposition, however, he had said his lawyer referred him to DeLoache.
Records from DeLoache show Ononiwu initially described his pain as a 9 on a scale of 1–10. DeLoache examined him, took an x-ray, and provided physical therapy. Ononiwu initially had physical therapy three times a week. DeLoache also recommended that Ononiwu have an MRI, which was administered about five or six weeks after the accident. His MRI showed two disk protrusions or herniations. It also showed a possible contusion on his right wrist. However, Ononiwu conceded he had never had an MRI before the accident and therefore did not know how long the disks in his back had been herniated.
Ononiwu later sought treatment from a pain-management doctor at Woodlands IP Pain Center for his back and wrist pain. The doctor recommended that Ononiwu continue participating in physical therapy three times a week for six weeks and prescribed a painkiller. He also recommended "lumbar transforaminal epidural steroid injections," and Ononiwu received them. The doctor further recommended "a right wrist joint block injection," but Ononiwu declined this procedure. Ononiwu testified that the treatment he received helped him recover.
According to Ononiwu, the pain from the accident interfered with his daily routine. He testified that it affected him while driving, working, playing basketball, and working out. He had to alter his workouts during this period to avoid exercises that would aggravate his back. But he continued to make workout exercise videos despite his injuries. He said getting in and out of his car and sitting in it hurt. He also stated that the pain had interfered with his sleep for about a month.
Ononiwu stopped going to DeLoache for therapy about two and half months after the accident. He sought no further treatment for the injuries he sustained in the accident. Ononiwu testified that he did not have any future appointments scheduled. He agreed that his back and wrist had healed and that neither hurt at the time of trial. But Ononiwu clarified that he simply meant he was now "pain free."
Ononiwu relied on several medical-provider affidavits to establish the cost of the medical treatment he required after the accident. These affidavits show he incurred $25,056.18 in medical expenses. He agreed that he did not suffer any emotional distress as a result of the accident.
Ononiwu testified that he was in a second automobile accident a few months after the one with Eisenbach. In the second accident, Ononiwu's back was injured again. His injuries from the first accident with Eisenbach had already healed by the time the second accident occurred.
Randolph's Testimony
The defense sought to exclude Randolph on several grounds. Among other things, the defense objected that Randolph had not treated Ononiwu and lacked the expertise necessary to opine about MRIs.
On voir dire, Randolph testified that he was a chiropractor, not a medical doctor. But he has not been a practicing chiropractor for 10 years, and he does not see patients. He has not referred a patient for an MRI during the preceding decade. He currently owns two companies, one of which is an imaging center that performs MRIs. The other company he owns is a management company. This second company essentially coordinates a network of physicians and chiropractors who see patients who are plaintiffs or potential plaintiffs in personal-injury cases. Randolph had not met Ononiwu until the day of trial. Randolph had not reviewed Ononiwu's medical records until the week of trial. He reviewed the radiologist's reports about Ononiwu's MRIs but not the MRI films. As a chiropractor, Randolph does not write MRI reports. Radiologists do so because it lies within their expertise.
The trial court ruled that Randolph could testify but limited his testimony in two respects. First, the court ruled that he could not testify about future medical expenses because that topic was not identified in Ononiwu's disclosures. Second, the court ruled that he could testify that it was reasonable to perform MRIs on Ononiwu but that he was not qualified to interpret the MRIs performed on Ononiwu or testify about the radiologist's MRI reports. In essence, the court ruled that Randolph could testify as a chiropractor but not outside his expertise on topics like radiology and pain management.
On direct, Randolph testified that he is a licensed chiropractor. He is board certified in whiplash and brain traumatology, accident reconstruction, and x-ray interpretation. He has 17 years experience with radiology, which includes x-rays and diagnostic imaging. However, Randolph further testified that MRIs differ from radiology and that he lacks the relevant board certification as to MRIs. In addition, he agreed that chiropractors do not perform MRIs. Randolph testified that he nonetheless has the necessary training to read MRIs.
Randolph owned an imaging center, an MRI center, and a healthcare management company when Ononiwu sought treatment. Randolph's companies, or ones in his referral network, treated Ononiwu, specifically Champions MRI, Texas Surgery Medical Center, DeLoache, and Woodlands IP. Randolph was familiar with the relevant medical and billing records.
Ononiwu's x-rays of his lumbar spine did not show any fractures. But they did indicate muscle spasms, which occur when muscles contract to protect the body from injury or damage. The x-rays also indicated some slight posterior wedging or herniation of a disk in Ononiwu's back, which Randolph demonstrated for the jury using a model. A chiropractor tries to alleviate the pain caused by such injuries by correcting such displacements so that the patient's bones are positioned as they normally would be.
Randolph testified that chiropractors are qualified to read and interpret MRI films and reports. Defense counsel objected that the trial court had ruled Randolph was unqualified to testify on these topics, and the trial court sustained the objection. Randolph then testified that Ononiwu's treating chiropractor referred him to a radiologist for an MRI. An MRI report stated that Ononiwu had a "patchy marrow edema," which Randolph said indicated "a deep bruise in the bone of the wrist." Based on the report, Ononiwu's chiropractor referred him for pain management. When Randolph tried to testify as to his interpretation of the MRI with respect to Ononiwu's lumbar spine, defense counsel objected again. The trial court sustained the objection. Randolph then testified without objection that a chiropractor would have found disk protrusion or herniation significant because it can cause the kind of radiating pain Ononiwu described. On cross, Randolph agreed that he is a chiropractor, not a radiologist. Randolph further agreed that he did not see Ononiwu as a patient and had not seen any patients as a chiropractor within the last 10 years. The chiropractor who did treat Ononiwu saw him twice, once at the beginning of treatment and once at the end of treatment about two months later.
Randolph conceded that, as the owner of a company that administers MRIs, he makes money when patients receive them. As part of Randolph's business, plaintiffs' lawyers refer their clients to him and he, in turn, refers them to healthcare providers. Randolph agreed that his LinkedIn page had stated that he developed protocols to maximize recoveries in personal-injury cases, but that he had removed this content from his page because he knew it would be the subject of examination by defense counsel at trial. In personal-injury cases, Randolph's compensation depends on the outcome.
On redirect, Randolph clarified that while the records indicated that the treating chiropractor saw Ononiwu just twice, the records poorly documented Ononiwu's treatment. Randolph opined that the treating chiropractor would have seen and treated Ononiwu on each visit identified in the records.
Outside the jury's presence, Ononiwu made an offer of proof as to Randolph's excluded testimony. Counsel summarized Randolph's proposed testimony, noting that Randolph would have testified that herniated disks are severe, permanent, and progressive injuries, which would result in future pain, impairment, and medical care. He would have further testified that the MRI reports reflect this prognosis and that Ononiwu's previous symptoms were consistent with the MRIs. Randolph also would have testified that Ononiwu's injuries and damages were caused by the accident with Eisenbach.
Eisenbach's Testimony
Eisenbach agreed that the accident was his fault. He further agreed that his knowledge was limited to what he saw at the scene.
Eisenbach was driving a 2011 Ford Fusion when he rear-ended Ononiwu, who was driving a sedan, at a red light. Eisenbach described the accident as "very minor" in nature, testifying that he "bumped the bumper of Mr. Ononiwu's car going less that five miles-an-hour, maybe less than two miles-an-hour." Afterward, they both got out of their cars. They then drove to a nearby parking lot to get out of traffic. They exchanged information, took some pictures, and went on their respective ways.
Directed Verdict Motion
Eisenbach moved for a directed verdict on future damages. Because Ononiwu testified that he was free of pain before the second automobile accident and the trial court could not recollect any testimony as to future impairment, the trial court granted the motion. The trial court also declined to submit the issue of mental-anguish damages due to Ononiwu's admission to having no emotional distress.
Jury Verdict and Judgment
The trial court's charge submitted the issues of past medical care, past physical pain, and past physical impairment to the jury. By a split verdict of 10–2, the jury awarded Ononiwu $410.18 for past medical care and nothing for past physical pain or past physical impairment. The trial court entered judgment consistent with the jury's verdict.
Ononiwu appeals. DISCUSSION
I. Chiropractor's Excluded Testimony
Ononiwu argues that the trial court abused its discretion by ruling that Randolph could not testify about the lumbar spine MRI report. Had the trial court allowed Randolph to do so, Ononiwu argues, the jury would have heard evidence of damages for future pain and impairment and would have awarded them.
A. Standard of review
We review a trial court's decision to exclude expert testimony for abuse of discretion. McMahon v. Zimmerman , 433 S.W.3d 680, 685 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Under this standard, the trial court has broad discretion, which it abuses only if its decision is arbitrary, unreasonable, or without reference to any guiding rules or principles. Id. When a trial court's exercise of discretion depends on the resolution of factual disputes or inconsistencies, it does not abuse its discretion so long as its decision is supported by some evidence. Ashfaq v. Ashfaq , 467 S.W.3d 539, 542 (Tex. App.—Houston [1st Dist.] 2015, no pet.). We cannot reverse the trial court's decision simply because we might have ruled differently. Wilson v. Shanti , 333 S.W.3d 909, 913 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). Given its broad discretion, close calls go to the trial court. Id.
B. Applicable law
An expert must be qualified to opine on a given subject for his testimony to be admissible. TEX. R. EVID. 702 ; New Hampshire Ins. Co. v. Allison , 414 S.W.3d 266, 273 (Tex. App.—Houston [1st Dist.] 2013, no pet.). The proponent of the testimony must show the witness has special knowledge on the very issue about which he proposes to opine. Allison , 414 S.W.3d at 274. Thus, a chiropractor is not necessarily qualified to opine on any and every medical topic. E.g., Moreno v. Ingram , 454 S.W.3d 186, 194 (Tex. App.—Dallas 2014, no pet.) (chiropractor not qualified to opine on non-chiropractic medical expenses).
C. Analysis
A chiropractor may testify about matters on which he has expertise. E.g., TREIMee Corp. v. Garcia , No. 01-11-00971-CV, 2013 WL 4680379, at *7–9 (Tex. App.—Houston [1st Dist.] Aug. 29, 2013, pet. denied) (mem. op.) (affirming trial court's decision that chiropractor was qualified to testify about injuries plaintiff sustained and medical treatment he required after falling through collapsed concrete landing that was part of apartment complex's outdoor stairway). The question here is whether Ononiwu established Randolph's expertise as to MRIs such that the trial court abused its discretion by excluding Randolph's proposed testimony.
Ononiwu argues that he established Randolph's expertise through Randolph's testimony that he has 17 years of experience with radiology and thus has the experience or training to read MRIs and testify about MRI reports. See TEX. R. EVID. 702 (experience and training may qualify one as expert in addition to education, knowledge, and skill). But Randolph also conceded that:
• radiologists, not chiropractors, perform or administer MRIs;
• writing MRI reports is within the expertise of radiologists; and
• he did not have the relevant board certification as to MRIs.
To the extent Ononiwu relies on Randolph's experience and training with MRIs as a chiropractor to overcome these concessions, Randolph testified that he has not practiced or seen patients as a chiropractor for a decade. Nor has he referred a patient to a radiologist for an MRI within the last 10 years. Finally, Randolph did not treat Ononiwu and conceded he had not reviewed Ononiwu's MRI films.
On this record, which required the trial court to assess conflicting evidence as to Randolph's qualifications to opine about MRIs, we hold that the trial court did not abuse its discretion in excluding his testimony about Ononiwu's lumbar spine MRI because some evidence supports its decision that Randolph was unqualified. Cf. Moreno , 454 S.W.3d at 194 (trial court erred in admitting chiropractor's testimony about non-chiropractic medical expenses given his concessions that he could not perform procedures himself and did not make decision to perform them); Garcia , 2013 WL 4680379, at *2, *8 (affirming trial court's admission of treating chiropractor's testimony, including testimony that plaintiff's MRI showed multiple cervical and lumbar herniations, which was based on chiropractor's training to interpret MRIs and experience of having read thousands of them).
II. Past Physical Pain and Impairment
Ononiwu argues the jury's finding of no damages for past physical pain and impairment is against the great weight and preponderance of the evidence. He maintains that the uncontroverted evidence of his injuries, corroborated by medical expenses, conclusively proves that he suffered pain and impairment in the past.
A. Standard of review
When a party asserts that a jury finding is against the great weight and preponderance of the evidence, the party is challenging the factual sufficiency of the evidence. Chang v. Nguyen , 76 S.W.3d 635, 637 n.1 (Tex. App.—Houston [14th Dist.] 2002, no pet.). When, as here, the party argues the evidence is factually insufficient to support an adverse jury finding on an issue on which he bore the burden of proof at trial, like the damages he sought to recover, we can set aside the finding only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence as to make the finding clearly wrong and unjust. See Capcor at KirbyMain v. Moody Nat'l Kirby's Houston S , 509 S.W.3d 379, 384 (Tex. App.—Houston [1st Dist.] 2014, no pet.). We cannot set aside a jury finding merely because we would have weighed the evidence differently or made a different finding. Hyler v. Boytor , 823 S.W.2d 425, 427 (Tex. App.—Houston [1st Dist.] 1992, no writ). The jury weighs the credibility of the witnesses and resolves evidentiary conflicts. Huston v. United Parcel Serv. , 434 S.W.3d 630, 640 (Tex. App.—Houston [1st Dist.] 2014, pet. denied).
B. Applicable law
Damages for pain and impairment are inherently speculative. Id. We have recognized that juries are not necessarily required to award damages such damages even when an injury is proved or undisputed. See Hyler , 823 S.W.2d at 427.
In general, we distinguish between instances in which a plaintiff's injuries are more subjective than objective and vice versa. Id. If the record shows the plaintiff's injuries are more subjective in nature, "we must affirm the jury's assessment of no damages for pain and suffering." Id. If, however, the record shows the plaintiff's injuries are more objective in nature, an award of zero damages for pain and impairment cannot stand. E.g., Doctor v. Pardue , 186 S.W.3d 4, 7, 18–21 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (reversing award of no damages for pain and impairment when runway aircraft collision rendered plaintiff quadriplegic).
We also must consider the extent to which the jury could have found based on the evidence that the plaintiff's injuries were less severe than claimed or that the defendant did not cause the plaintiff's injuries. See Huston , 434 S.W.3d at 641 (jury has discretion to award no damages when there is conflicting evidence as to cause or severity of injury); Hyler , 823 S.W.2d at 427–28 (affirming award of no damages for physical pain when evidence of injury was mostly subjective in nature and jury could have attributed limited objective evidence of injury to other causes).
Moreover, to recover damages for physical impairment in addition to damages for physical pain, the effect of any physical impairment must be substantial and exist beyond any physical pain the plaintiff experienced. Doctor , 186 S.W.3d at 18.
C. Analysis
Both Ononiwu and Eisenbach agreed that this was a minor accident. Eisenbach testified without contradiction that he was traveling around five miles per hour at most when he rear-ended Ononiwu. Both got out of their cars and after briefly interacting went on their respective ways. Ononiwu went to the grocery store afterward and spent the rest of the day watching television.
Ononiwu testified that he first experienced pain two or three days after the accident. His wrist hurt and pain radiated from his lower back down into his hip. Ononiwu iced his wrist but did not take any medicine for pain relief.
Ononiwu first sought treatment at a chiropractic clinic the following week. He then switched to another clinic. There is conflicting evidence as to whether he did so for convenience or because his lawyer had advised him to do so. For the next couple of months, Ononiwu went to physical therapy there, received a prescription for a painkiller from a pain-management doctor, and had epidural shots for pain relief. He also had x-rays and MRIs. It is undisputed that the MRI showed Ononiwu had herniated disks in his lower back and possibly a bone bruise. But Ononiwu, who regularly exercises, acknowledged he had never had an MRI before and therefore did not know how long his disks had been herniated.
Ononiwu testified that the pain from his injuries affected his daily routine but agreed that he continued exercising and making exercise videos. About two-and-a-half months after the accident, he discontinued treatment for the pain.
We conclude the evidence of damages in this case is more subjective than objective in nature. Ononiwu's x-rays and MRIs are the lone objective evidence of injury, and they are not conclusive. See Hyler , 823 S.W.2d at 427–28 (CAT scan objective but not conclusive).
The x-ray report notes a lack of "fractures and/or other serious pathologies" but states Ononiwu had a lumbar rotation and pelvic shift "consistent with the patient's discomfort." The MRI reports note two disc herniations and certain findings that "may represent bony contusion." The principal evidence as to the significance of these x-ray and MRI findings and their connection with Ononiwu's pain is Randolph's testimony, which the jury was free to credit or not. See Martinez v. Kwas , 606 S.W.3d 446, 462 (Tex. App.—Houston [1st Dist.] 2020, pet. denied) (jury can disbelieve experts). In this regard, the jury could have reasonably discounted Randolph's testimony based on his admissions that he did not treat Ononiwu, had not treated any other patients in a decade, had developed treatment protocols designed to maximize a plaintiff's recovery in lawsuits, and had a financial interest in the outcome of lawsuits filed by the patients treated at the clinics within his network of healthcare providers.
The sole other evidence as to Ononiwu's pain consisted of his testimony and medical records reflecting what he told treaters. That evidence is subjective. See Hyler , 823 S.W.2d at 427 (plaintiff's injuries—dizziness, disorientation, impaired concentration, memory loss, tiredness, irritability, tingling sensation, and pain in neck, arms, back, and shoulders—were subjective and turned on her credibility).
Moreover, the jury could have reasonably found that other aspects of Ononiwu's testimony undercut his claims about the severity and duration of his pain, including his characterization of the accident as a minor one, acknowledgment that he did not experience any pain until two or three days after the accident, and concession that he carried on with his ordinary daily life activities, including exercise, notwithstanding the pain. When, as here, the plaintiff's credibility is central to his claims of physical pain, the jury's role is paramount. See Diamond Offshore Servs. Ltd. v. Williams , 542 S.W.3d 539, 552 (Tex. 2018). In its role as the sole judge of credibility, the jury was entitled to discount Ononiwu's testimony about his physical pain and the jury implicitly did so. See id. ; see also Schott v. Knight , No. 01-06-00727-CV, 2007 WL 4465586, at *3 (Tex. App.—Houston [1st Dist.] Dec. 20, 2007, no pet.) (mem. op.) (jury may disbelieve plaintiff's subjective complaints of pain, including those made to and relied on by his treating physician, even when plaintiff's testimony is uncontradicted).
On its face, the evidence does not suggest the kind of substantial effect beyond ordinary pain and suffering that is required to recover damages for physical impairment. See Doctor , 186 S.W.3d at 18. The sole evidence in this regard is Ononiwu's testimony that he had to modify his workouts to account for the pain.
Ononiwu argues that his medical bills for more than $25,000 show his injuries were serious enough to entail pain and impairment. On this record, we disagree.
Ononiwu's medical bills, accompanied by affidavits of cost and necessity, are sufficient to establish the amounts billed by healthcare providers for Ononiwu's treatment, given that the affidavits were uncontroverted. TEX. CIV. PRAC. & REM. CODE § 18.001(b), (e). But the affidavits are not evidence that Eisenbach caused these damages. Id. § 18.001(b). Eisenbach disputed causation, which Ononiwu had to prove. See Imamovic v. Milstead , No. 01-13-01030-CV, 2015 WL 505383, at *6 (Tex. App.—Houston [1st Dist.] Feb. 5, 2015, no pet.) (mem. op.) (even when defendant's liability for auto collision is established, plaintiff must prove causal nexus between collision and injuries to show damages). The jury could have reasonably resolved this dispute in Eisenbach's favor in light of the undisputed evidence that the collision was low-impact, Ononiwu experienced no pain for several days, and Ononiwu sought treatment for the first time even later. See Hyler , 823 S.W.2d at 425–26 (affirming award of no damages for pain when plaintiff had no visible sign of injury after accident, drove to friend's house afterward, went to work next day, and did not see doctor for several days); Vasquez v. Hildenbrand , No. 01-06-01067-CV, 2008 WL 1827642, at *5 (Tex. App.—Houston [1st Dist.] Apr. 24, 2008, no pet.) (mem. op.) (affirming award of no damages for pain based on evidence of minor nature of accident and plaintiff's condition at accident scene and at home afterward); see also Gutierrez v. Martinez , No. 01-07-00363-CV, 2008 WL 5392023, at *6 (Tex. App.—Houston [1st Dist.] Dec. 19, 2008, no pet.) (mem. op.) (jury may disbelieve plaintiff as to cause of pain when his testimony is sole direct evidence of causation).
Nor does a jury's award of past medical expenses, particularly the modest amount the jury awarded to Ononiwu, require an award of damages for physical pain or impairment. Davis v. Vaughters , No. 01-17-00612-CV, 2018 WL 5661317, at *6 (Tex. App.—Houston [1st Dist.] Nov. 1, 2018, no pet.) (mem. op.). A jury may reasonably find that a plaintiff should be compensated for seeking enough medical care to confirm that he has not been seriously injured, but that he did not suffer pain or impairment warranting damages. See id. at *9 (holding so as to physical pain).
Given the largely subjective nature of the evidence and the evidentiary conflicts as to the existence, severity, and cause of the injuries in this case arising from a low-speed collision without contemporaneous indicia of injury, the jury's findings of no damages for past physical pain and impairment should not be overturned. See Hyler , 823 S.W.2d at 428. We hold that the evidence is neither so weak nor these findings so against the great weight and preponderance of the evidence as to make them clearly wrong or unjust. See Capcor , 509 S.W.3d at 384.
CONCLUSION
We affirm the trial court's judgment.