Opinion
No. 04-03-00361-CV
Delivered and Filed: April 13, 2005.
Appeal from the 73rd Judicial District, Bexar County, Texas, Trial Court No. 2001-CI-09022, Honorable Andy Mireles, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Janice Burris appeals the jury's award of damages in a negligence action arising from an automobile accident. The jury awarded Burris $2,500.00 for physical pain and mental anguish and $2,700.00 for past and future medical care. On appeal, Burris argues that (1) the trial court erred in admitting a surveillance videotape that was not disclosed as soon as practicable; (2) the trial court erred in reversing its prior ruling excluding the surveillance videotape without reference to guiding rules or principles; and (3) the jury's answers to Question 2 were against the overwhelming weight and preponderance of the evidence. We affirm the judgment of the trial court.
Background
On April 28, 2000, in stop-and-go traffic, a VIA Metropolitan Transit bus driven by Enrique Garcia rear-ended a pickup truck in which Burris was a passenger. Garcia estimated that, as he put the bus in gear, the bus jolted six to eight feet at no more than five miles per hour. Mark Belden, the driver of the pickup truck, characterized the impact as substantial and stated that it caused the pickup truck to lurch forward six or seven feet. Both Belden and Burris, who was seated in the middle seat of the pickup truck, testified that the collision caused them to be thrown forward. Belden testified that he alone exited the pickup truck to speak with Garcia, but Garcia recalled that both Belden and Burris exited the pickup truck immediately following the collision. Both vehicles could be driven and were removed from the roadway. Emergency services arrived approximately twenty minutes later. Burris complained of neck pain at the scene, but refused to be transported to a hospital.
Burris testified that her neck hurt "instantly" and that she developed a headache shortly after the collision. Burris stated that she felt pain in her shoulders and her back, and that her back hurt before she got out of the pickup truck. Belden testified that Burris complained of back pain shortly after the collision. On April 30, 2000, Burris went to the Southeast Baptist Hospital emergency room where she again complained of strain to her neck.
On cross-examination, Burris indicated that she first reported back pain four days after the accident during a visit with Dr. Baylan, to whom she was referred by her attorney. Burris explained that, prior to meeting with Dr. Baylan, she had not complained of back pain because she had only responded to questions asked of her. Dr. Baylan referred Burris to physical therapy pending x-ray results. Upon reviewing the x-rays, Dr. Baylan diagnosed no injuries and indicated that Burris should have recovered.
Burris sought a second opinion from Dr. Gutzman, an orthopedic surgeon who Burris also visited on the recommendation of her attorney. Dr. Gutzman testified via videotaped deposition that his initial examination of Burris revealed indication of nerve damage. Dr. Gutzman ordered cervical and lumbar MRIs for Burris. The cervical MRI showed a normal cervical spine, indicating no herniated disks or pinched nerves in the neck. The lumbar MRI, however, showed a herniated disk with spinal cord impingement at L4-L5, near the belt line. Dr. Gutzman initially prescribed conservative management of the problem, but later discussed the option of surgery with Burris. Dr. Gutzman indicated that surgical intervention would be the only option able to provide Burris with relief; however, at the time of Dr. Gutzman's deposition on June 28, 2002, no surgery had been scheduled.
Burris filed suit against Garcia and VIA, alleging her injuries had been caused by Garcia's negligence. Burris claimed VIA was responsible for Garcia's negligence under the theory of respondeat superior. Burris claimed injuries for physical pain and suffering in the past and future; mental anguish in the past and future; medical expenses in the past and future; loss of earnings in the past and future; physical incapacity and disability in the past and future; and disfigurement in the future.
Surveillance Videotape
VIA hired Dan Phillips to investigate and record Burris, which Phillips and his employee did between May 7 and May 17, 2002. Phillips provided a report of his investigation and a videotape of Burris to VIA on May 24, 2002. VIA disclosed the videotape and Phillips as a witness on October 4, 2002, thirty-one days before the scheduled trial date of November 4, 2002. Burris filed a Motion for Sanctions, arguing that the videotape was not disclosed in a timely manner and was both prejudicial and unreliable. The videotape included footage of Burris walking in high heels, carrying lightweight boxes above her waist, exiting Wal-Mart carrying milk in a bag, getting out of her vehicle, and picking up a video from the bottom shelf at a Blockbuster Video Store. The trial court determined that the surveillance video footage of Burris was not relevant to any contested issues, was neither reliable nor trustworthy, and may be prejudicial. Additionally, the trial court found that the videotape had not been disclosed as soon as practicable. The trial court sanctioned VIA and its attorneys, and ordered the videotape be excluded from trial.
The trial date was subsequently reset for December 9, 2002.
At trial, Burris presented testimony concerning her injuries and impairments resulting from those injuries. Belden testified that Burris exhibited pain and had trouble bending over, climbing stairs and lifting objects. Dr. Gutzman testified that Burris should refrain from bending, stooping, and lifting more than ten to fifteen pounds. Burris also testified, stating that she was not able to sit for long periods, jog, or perform common household chores such as laundry, cooking, and cleaning. Burris also testified that she no longer participated in sports and missed several of her children's school functions because of her injuries.
At the close of Burris's case, VIA moved for reconsideration of the trial court's exclusion of the videotape in light of the testimony. VIA argued that the testimony was clearly inconsistent with what was shown on the videotape, thus making the videotape relevant to contested issues. Burris reiterated her arguments concerning the timeliness of the disclosure of the videotape and urged that the trial court should not disturb its previous findings. On reconsideration, the trial court's rulings concerning the timeliness of the videotape's disclosure, behavior of the parties, and monetary sanctions remained intact. However, the trial court determined, in light of Burris's testimony that she was unable to complete certain tasks or take part in certain activities, the video became relevant to contested issues. The trial court also changed its ruling on the reliability of the videotape, stating that the videotape was reliable for purposes of Phillips's testimony. The trial court concluded that it would be an unjust sanction to exclude the videotape.
First, we examine Burris's argument that the trial court's reconsideration and reversal of its ruling on the admissibility of the surveillance video was without reference to guiding rules and principles. A trial court may reconsider its pretrial rulings after trial has begun. Reveal v. West, 764 S.W.2d 8, 11 (Tex.App.-Houston [1st Dist.] 1988, orig. proceeding). We uphold a trial court's evidentiary ruling if there is a legitimate basis for the ruling. Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).
Burris argues that no new evidence was before the trial court to provide a legitimate basis for the reversal of its earlier findings. We disagree. The record plainly shows that at the time of the November 22 ruling, the trial court was not familiar with Burris's deposition testimony, but had only viewed the videotape. Based on its viewing of the videotape, the court reasoned that the videotape's contents were not relevant to any contested issues. On December 9, however, once the trial court heard Burris's testimony that she was unable to accomplish a myriad of daily activities because of her injuries, the trial court reconsidered and found that the videotape was indeed relevant because it contained contradictions to Burris's testimony. We cannot say that there is no legitimate basis for the trial court's ruling or that the trial court acted without reference to guiding rules or principles. Burris's second issue is overruled.
We next turn to Burris's argument that the trial court erred in admitting the videotape when it was not disclosed as soon as practicable. A party must supplement or amend its answers to discovery "reasonably promptly" after the party discovers the need to do so. Tex. R. Civ. P. 193.5(b); Snider v. Stanley, 44 S.W.3d 713, 716 (Tex.App.-Beaumont 2001, pet. denied). Supplemental discovery responses made less than thirty days before trial are presumed not reasonably prompt. Tex. R. Civ. P. 193.5(b). The converse, however, is not true; a supplemental discovery response made more than thirty days before trial is not necessarily reasonably prompt. Snider, 44 S.W.3d at 715. Material that has not been timely disclosed may not be introduced at trial unless the trial court finds good cause for the failure to timely supplement discovery or finds that the failure to timely supplement does not unfairly surprise or unfairly prejudice other parties to the suit. Tex. R. Civ. P. 193.6(a). To obtain a reversal on appeal when a trial court has admitted untimely disclosed material over objection, the objecting party must show that the trial court's error probably caused the rendition of an improper judgment. Tex.R.App.P. 44.1(a)(1); Bott v. Bott, 962 S.W.2d 626, 628 (Tex.App.-Houston [14th Dist.] 1997, no pet.).
VIA disclosed the videotape thirty-one days before the initial trial date. The trial court found the disclosure was not reasonably prompt, but it admitted the videotape into evidence while sanctioning VIA and its attorneys. Burris argues that the trial court did not find good cause for the failure to timely supplement or disclose the videotape and, therefore, the videotape should be excluded. The trial court, however, is not required to find good cause. Rule 193.6(a) includes the alternatives of showing a lack of unfair surprise or unfair prejudice as methods of admitting untimely disclosed evidence. See Tex. R. Civ. P. 193.6(a). In this case, the trial court made an express finding that the admission of the surveillance videotape would not unfairly prejudice Burris.
The primary concern, when considering the issue of prejudice, is whether the objecting party was provided sufficient time to prepare a rebuttal to the evidence. See Exxon Corp. v. West Tex. Gathering Co., 868 S.W.2d 299, 304 (Tex. 1993) (discussing the policy behind the requirement of supplementation as permitting other parties the opportunity to develop rebuttal). As noted earlier, the trial was reset, resulting in Burris receiving the video sixty-six days before trial. In that time, Burris was able to depose Phillips and retain her own expert, who was able to fully examine the videotape sufficiently to testify at the November 22 hearing concerning the quality of the videotape. This shows that Burris had ample opportunity to prepare a rebuttal to the evidence shown in the videotape. Additionally, while Burris did not expect the videotape to be presented at trial, Burris could not expect that evidence contradicting her claims of damages would not be presented at trial in some fashion.
Further, Burris has not identified any evidence tendered in the videotape that caused the rendition of an improper judgment. Ample evidence was presented at trial that would have allowed the jury to determine Burris's injuries were not as severe as claimed. In addition to the videotape, the jury was presented with evidence showing that Burris refused transportation to the hospital from the scene and did not complain of back injuries when she visited the emergency room. The jury heard testimony that Burris did not report back injuries until she visited a doctor recommended by her attorney. The first doctor Burris visited found no injuries. Testimony was also elicited that Burris went out dancing and did not miss any work following the accident. Under the circumstances, we find the trial court did not err in admitting the videotape. Burris's first issue is overruled.
Jury's Responses to Question 2
Question 2 of the charge reads as follows:
What sum of money, if paid now in cash, would fairly and reasonably compensate Janice Burris for her injuries, if any, that resulted from the occurrence in question?
Consider the elements of damages listed below and none other. Consider each element separately. Do not include damages for one element in any other element. Do not include interest on any amount of damages you find. Answer in dollars and cents for damages, if any, that were sustained in the past and that in reasonable probability will be sustained in the future.
a. Physical pain and mental anguish.
b. Loss of earning capacity.
c. Disfigurement.
d. Physical impairment.
e. Medical care.
The jury awarded Burris $2,500.00 for physical pain and mental anguish, $2,700.00 for medical care, and nothing for loss of earning capacity, disfigurement, and physical impairment. In her third issue, Burris complains that the jury's answers to Question 2 are against the overwhelming weight and preponderance of the evidence.
When reviewing a factual sufficiency challenge, we consider, weigh, and examine all the evidence in the record both supporting and undermining the jury's finding. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). We review the evidence, but may not substitute our opinion for that of the jury, as it is the jury's role to judge the credibility of witnesses, to assign the weight afforded their testimony, and to resolve inconsistencies within or conflicts among the witnesses' testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). Accordingly, we will not set aside the jury's refusal to award a greater amount of damages unless that refusal is so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. See Dow Chemical, 46 S.W.3d at 242.
Zero Damage Award: Loss of Earning Capacity, Disfigurement, and Physical Impairment
On appeal, Burris does not complain that she missed work or suffers from disfigurement and physical impairment as a result of the accident. Rather, Burris's arguments concerning the zero damage award is based on the presumption that Burris will undergo the surgery Dr. Gutzman recommended at some time in the future. According to medical records offered by Burris, Dr. Kuwamura, another physician who treated Burris in June 2002, indicated that if Burris's treatment with steroid injections was not successful in controlling her pain, he would recommend surgery. Dr. Gutzman testified that if Burris underwent surgery, she would be out of work for a six to nine month recovery period. Dr. Gutzman indicated that following surgery, Burris would have a thin, permanent four to five inch scar on her back, which Burris testified would generally be covered, but would be visible when she wore her bathing suit. Additionally, Dr. Gutzman testified that following surgery, Burris would suffer a twenty percent loss in her range of motion and would have limitations on the use of her back. However, the jury also heard testimony that Dr. Baylan found no injuries and was of the opinion that following physical therapy, Burris should be fully healed. Burris had not yet undergone surgery, although it was initially recommended by Dr. Gutzman more than two years before trial. The jury, drawing from its own experiences and common sense, was within its discretion to give little weight to the possibility of Burris undergoing surgery in the future. See City of San Antonio v. Michalec, 418 S.W.2d 358, 362 (Tex.Civ.App.-San Antonio 1967, writ ref'd n.r.e) (stating that jurors are at liberty to reach their conclusion by blending all of the evidence before them, aided by their own experience and knowledge on the subject at hand). The jury's determination that no damages should be awarded in these categories is neither manifestly wrong nor unjust.
Physical Pain and Mental Anguish
The determination of the dollar amount of a plaintiff's pain and suffering is peculiarly within the province of the jury's discretion. See Transit Mgmt. Co. of Laredo v. Sanchez, 886 S.W.2d 823, 826 (Tex.App.-San Antonio 1994, no writ). There are no objective guidelines available by which we may measure the money equivalent of pain, and the jury must be allowed broad discretion in determining this amount. See Texarkana Mem. Hosp., Inc. v. Murdock, 946 S.W.2d 836, 841 (Tex. 1997). Awards for damages such as pain, suffering, and anguish should not be disturbed unless they are excessive. See Rosenboom Mach. Tool, Inc. v. Machala, 995 S.W.2d 817, 829 (Tex.App.-Houston [1st Dist.] 1999, pet. denied); Wal-Mart Stores, Inc. v. Sholl, 990 S.W.2d 412, 420 (Tex.App.-Corpus Christi 1999, pet. denied); Owens-Corning Fiberglass Corp. v. Martin, (Tex.App.-Dallas 1997, no writ).
Burris complains that the award does not appropriately compensate her for her damages. The jury, however, in addition to evidence presented by Burris of her pain and inability to complete daily tasks, had before it the videotape showing Burris in various aspects of her daily routine. The jury was well within its discretion in fixing the amount awarded for physical pain and mental anguish. We cannot say that the determination of the jury is either manifestly wrong or unjust.
Medical Care
Burris's claim for past medical expenses must be supported by evidence that the expenses were reasonably necessary for her to incur as a result of her injuries. Carr v. Galvan, 650 S.W.2d 864, 868 (Tex.App.-San Antonio 1983, writ ref'd n.r.e.); see also Transport Concepts, Inc. v. Reeves, 748 S.W.2d 302, 305 (Tex.App.-Dallas 1988, no writ). Burris can prove the necessity of past medical expenses by presenting expert testimony on the issues of reasonableness and necessity or presenting an affidavit prepared and filed in compliance with section 18.001 of the Texas Civil Practices and Remedy Code. Rodriguez-Nareea v. Ridinger, 19 S.W.3d 531, 532-33 (Tex.App.-Fort Worth 2000, no pet.).
The proof of amounts charged or paid for past medical expenses, however, is not proof of the reasonableness of those expenses. See Dallas Ry. Terminal Co. v. Gossett, 156 Tex. 252, 294 S.W.2d 377, 382-83 (1956); Six Flags Over Tex., Inc. v. Parker, 759 S.W.2d 758, 760 (Tex.App.-Fort Worth 1988, no writ). Further, evidence that medical expenses are reasonable and customary is not evidence supporting the "reasonable necessity" of those medical expenses and, thus, will not alone support an award. Carr, 650 S.W.2d at 868. An uncontroverted affidavit may provide such evidence. See Tex. Civ. Prac. Rem. Code Ann. § 18.001(b) (Vernon 1997). However, the evidence provided by such an affidavit is not conclusive. See Barrajas v. VIA Metro. Transit Auth., 945 S.W.2d 207, 209 (Tex.App.-San Antonio 1997, no writ).
The award of future medical expenses lies within the discretion of the jury. City of San Antonio v. Vela, 762 S.W.2d 314, 321 (Tex.App.-San Antonio 1988, writ denied). Burris must present evidence to establish, in all reasonable probability, that future medical care will be required and the reasonable cost of that care. Rosenboom, 995 S.W.2d at 828; Whole Foods Mkt. Southwest, L.P. v. Tijerina, 979 S.W.2d 768, 781 (Tex.App.-Houston [14th Dist.] 1998, pet. denied). The preferred practice for establishing future medical costs is through expert medical testimony, but there is no requirement that Burris establish such costs in that manner. Tijerina, 979 S.W.2d at 781. Because no precise evidence is required, the jury may award damages for future medical care based on the nature of the injury, the medical care received prior to trial, and the condition of the injured party at the time of trial. Vela, 762 S.W.2d at 321.
At trial, Burris offered the medical bills she incurred, totaling $14,620.79, and testimony from Dr. Gutzman that the cost of surgery, follow up, and rehabilitation would total $40,000.00. Burris asserts that no testimony was presented that the medical expenses were unreasonable. Burris argues that because she presented uncontradicted testimony of an expert witness regarding the amount of past and future medical charges, the reasonableness of those charges, and the necessity for those charges, the jury is bound by those figures. Burris's argument is without merit.
The mental process by which a jury determines the amount of damages is ordinarily incognizable to an appellate court. See Thomas v. Oldham, 585 S.W.2d 352, 359-60 (Tex. 1995). The jury has a great deal of discretion in fixing the amount of the damage award. Golden Eagle Archery, 116 S.W.3d at 757. Further, the opinions and judgments of expert witnesses are not binding on the jury. McGalliard v. Kuhlman, 722 S.W.2d 694, 697 (Tex. 1986); see also Callejo v. Brazos Elec. Power Coop., Inc., 755 S.W.2d 73, 75 (Tex. 1988). Jurors weighing evidence have the discretion to use their common knowledge and experience; if the opinions of the experts as given in the evidence do not comport with jurors' sense of sound logic, jurors are not bound by those opinions. Maryland Ca. Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62, 64 (1945). Because the jury is not bound by the testimony of Burris's expert, but awarded an amount of damages for medical care within the range of damages claimed by Burris, we cannot say the jury's determination fell outside its discretion.
The jury was charged with observing the witnesses, evaluating their demeanor and the credibility of their testimony, and resolving any inconsistencies in the evidence. In determining the sufficiency of the evidence supporting the jury's findings, we accept, and will not interfere with, the jury's resolution of any of the conflicts or inconsistencies in the evidence. Pool v. Ford Motor Co., 715 S.W.2d. 629, 635 (Tex. 1986). While the jury's determination may be different from those that any court might have made, our review of all the evidence leads us to believe that the jury's findings of zero damages for loss of earning capacity, disfigurement, and physical impairment, as well as the jury's award of damages for physical pain, mental anguish, and medical care are not so against the overwhelming weight of the evidence that they are manifestly unjust and clearly wrong. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). Burris's third issue is overruled.
Conclusion
Having overruled each of Burris's issues, the judgment of the trial court is affirmed.