SeaRiver Maritime, Inc. v. Ella Pike ( 2006 )

                                          NUMBER 13-05-0033-CV

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

SEARIVER MARITIME, INC.                                                             Appellant,

                                                             v.

ELLA PIKE,                                                                                        Appellee.

       On appeal from the 189th District Court of Harris County, Texas.

                               MEMORANDUM OPINION

                         Before Justices Castillo, Garza, and Wittig^[1]

                     Memorandum Opinion by Retired Justice Wittig

SeaRiver Maritime, Inc. appeals an adverse jury verdict from the 189th Judicial District Court of Harris County.  The jury found in favor of appellee, Ella Pike.  Pike fell and injured herself shipboard in the galley during a storm. The jury found appellant liable under both general maritime law and the Jones Act and awarded damages, past and future, totaling $2,564,912.  In four issues, SeaRiver challenges (1) the jury=s findings of causation for the incident, (2) the qualifications and reliability of the plaintiff=s expert Dr. Robert Voogt, (3) the jury=s finding of $1,000,000 in future medical, and (4) the trial court=s refusal to allow an offset for disability payments to Pike in the amount of $175,207.  We affirm the judgment as modified.

I. Standard of Review

The Jones Act requires proof of producing cause, and general maritime law requires proof of proximate cause.  Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1354 (5th Cir. 1988); Smith v. Trans-World Drilling Co., 772 F.2d 157, 162 (5th Cir. 1985).  Texas courts utilize the federal standard of review for evidence sufficiency challenges under the Jones Act.  Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1998).  The purpose of the Jones Act standard of review is to vest the jury with complete discretion on factual issues about liability. Id.    Once the appellate court determines that some evidence about which reasonable minds could differ supports the verdict, the appellate court's review is complete.  Id. A Texas court of appeals may not conduct a traditional factual sufficiency review of a jury's liability finding under the Texas "weight and preponderance" standard.  Id.  The causation burden is "whether the proof justifies with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury for which the claimant seeks damages." Id. (citing Rogers v. Missouri Pac. R.R., 352 U.S. 500, 506‑07 (1957)).  The burden is termed "featherweight."  Id.

II. DiscussionBCausation

SeaRiver points out that Pike did not testify as to how she fell although her injury report indicated the ship rolled, grease spilled on the deck, and her foot slipped on the grease.  Her doctor noted she slipped on the grease and her leg was cut as her foot slipped under the door.  SeaRiver cites a Texas premises case, which may apply in the general Aslip and fall@ context, but does not apply in maritime law.  SeaRiver argues:  (1) the conclusory opinion of Pike=s expert StewartBa former seaman and now college professorBthat Pike would not have slipped had SeaRiver provided rubber floor mats, is a naked and unsupported conclusion; (2) Stewart was not qualified to opine about causation and his opinion did not assist the jury; and (3) Stewart=s conclusory opinion is unreliable. 

Assuming, arguendo, that SeaRiver is correct in its argument, we cannot agree that there is no other evidence regarding causation to support the two separate liability findings.  As SeaRiver itself argues, the jury is competent to determine the ultimate issues, even without an expert.  See K-Mart Corp. v. Honeycutt, 24 S.W.3d. 357, 361 (Tex. 2000); Peters v. Five Starr Marine Serv., 898 F.2d 448, 450 (5th Cir. 1990).

The evidence is uncontradicted that, at the time of the accident, the ship was weathering a storm of gale-force proportions.  The galley deck had slick glazed tile that had been protected by rubber mats before their removal four months prior to the accident.  New mats had been ordered but had not yet arrived.  After the accident, the old mats were replaced in the galley pending arrival of the new mats.  The Captain and engineer=s report pointed out that the glazed tiles used in the galley were of the type found in residential homes, but the tiles were too slick to be used on outdoor house entries. The report stated that spilled grease and water makes the tile surface extremely slippery; the report concludes that the addition of fitted rubber mats covering the entire surface may be a reasonable solution to mitigate the problem. 

The Captain testified about the report and reiterated that to prevent an accident, less slippery flooring and mats should be utilized.  He also testified the mats should have been on the galley deck before Pike fell and the mats= purpose was to make the deck less slippery.  Other people had also slipped on the slick surface in the galley, including one individual who fell later on the same day that Pike fell.  One seaman testified there was only one other vessel in the Exxon fleet with the problem of glazed tile on her decks.  This was a known slippery condition aboard SeaRiver which supported an unseaworthiness finding and contributed to the fall, especially when the vessel was not in calm seas.

The ship in question was designed for use in the Mediterranean and was ill-suited for heavy seas.  At the time of the accident, the ship was rolling twenty to thirty degrees, Apretty strong rolls.@  The ship=s records listed a Aslippery deck surface@ as one of three root causes for and contributing factors to the accident.  The other causes and factors were identified as the ship=s movement and the grease spill. 

SeaRiver=s own expert opined that a matted surface would probably have been adequate to prevent Pike=s slip and fall.   He opined that, had a more Aaggressive@ walking surface been provided, Pike would not have slipped.

Appellant=s first issue is overruled.

                                                   III.  Life-Care Planner as Expert

Appellant next complains the trial court erred by failing to exclude the entire testimony of life-care planner, Dr. Robert Voogt.  In its pre-trial motion to the trial court, SeaRiver maintained that Voogt was not qualified and his testimony was irrelevant and unreliable.  The trial court, understanding that the motion was to exclude all of Voogt=s testimony, denied SeaRiver=s pretrial motion, although this was done late in the trial.  The trial court noted that, although he allowed Voogt to testify, he did sustain specific objections to Voogt=s opinions. These objections and rulings are not part of SeaRiver=s issue, which is limited to the exclusion of Voogt as an expert witness.

For an expert's testimony to be admissible, the expert must be qualified, his opinion must be relevant to the issues in the case, and his opinions must be based upon a reliable foundation.  Tex. R. Evid. 702; Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 628 (Tex. 2002).  The admission or exclusion of evidence is a matter within the trial judge's discretion.  Owens‑Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998). To obtain reversal of a judgment based on error in the admission or exclusion of evidence, an appellant must show that the trial judge's ruling was in error and that the error was calculated to cause and probably did cause the rendition of an improper Judgment.     Tex. R. App.  P. 44.1; Owens‑Corning Fiberglas Corp., 972 S.W.2d at 43. A trial judge abuses his discretion when he acts "without regard for any guiding rules or principles." Owens-Corning Fiberglas Corp., 972 S.W.2d at 43.  We must uphold the trial judge's evidentiary ruling if there is any legitimate basis for doing so.  Id.

Dr. Robert Voogt has worked in the field of life-care planning for over twenty years and has thirty years of experience in health care management for people with disabilities.  He operates his own facility for rehabilitation, particularly for patients with neurological impairments.  He has a masters degree in rehabilitation counseling and a doctorate in counseling. By definition, Dr. Voogt is an expert qualified to testify on the subject before him at trial. 

During the course of his testimony, he gave testimony concerning future medical costs based in part upon what the treating physicians said, specifically Doctors Macielak, Miaczynski, and Concilus.  For example, Dr. Macielak indicated that Pike would incur necessary medical services ranging from $85 to $150 per year, plus $22,440 for a discectomy.  Dr. Concilus estimated that Pike would incur medical expenses ranging from $150 to $200, plus injections every six weeks costing $500 to $600 per shot. Medications were $6,739 per year, based upon Pike=s past usage. Using a United States Life Table, without objection, Pike had a projected 22.5 year life expectancy. 

No objections were made to most of the specific testimony of Dr. Voogt although a stipulation was entered indicating the pretrial motion to exclude substituted for voir dire and Apreserves our objections to the admissibility of his testimony as an expert witness.@  This we understand, as did the trial judge, to mean the total exclusion of all testimony by the expert witness.

SeaRiver argues Dr. Voogt is not a medical doctor, yet he was allowed to testify as to the need for future medical care.  According to SeaRiver, Dr. Voogt is not qualified to give an opinion on a person=s medical condition and medical future or predict the care and treatment in the future. SeaRiver cites an unpublished federal district court opinion disallowing testimony from Dr. Voogt.  Norwest Bank, N.A. v. Kmart Corp., 1997 U.S. Dist. LEXIS 3426, 23‑24 (D. Ind. 1997).  However, even the federal district judge in that case said: 

Accordingly, for all these reasons, Dr. Voogt's "forecasts" of Mrs. Frick's present and future medical needs are not admissible.  This leaves the other class of opinions the plaintiffs wish to offer through Dr. Voogt: his cost valuation of the life plan he outlined. Cost evaluation does not require medical expertise, and Dr. Voogt plainly has the requisite experience to make his opinion of cost helpful to the trier of fact.  It does not appear, however, that those opinions are based on any evidence other than Dr. Voogt's inadmissible opinions on the care Mrs. Frick will need.  It does not appear from the record before the court that any health care provider will testify that Mrs. Frick will need the course of treatment upon which Dr. Voogt based his cost valuations.  Dr. Voogt testified that he has not discussed the plan's components with Mrs. Frick's treating physicians,  either before or after devising the plan.  No other health care provider has recommended all of the plan's components, and it does not appear that any other health care provider recommended any single component of the plan other than Mrs. Frick's current pharmaceutical prescriptions. 

See id. (emphasis added).  Norwest is plainly distinguishable.  As we read Dr. Voogt=s testimony, his approach in this case avoided the mistakes in Norwest.   He based much of his cost evaluation upon the records and recommendations of the treating physicians.  Unlike Norwest, other qualified health card providers testified and related many of the components of the health care plan. Further, unlike Norwest, SeaRiver also provided health care evidence through its own life care expert. The pharmaceutical prescriptions were based upon Pike=s past treatment history, which Voogt delineated.

 Taken as a whole,  Dr. Voogt demonstrated special knowledge concerning most of the  very matters on which he gave an opinion.  See Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 n.10 (Tex. 1998).

SeaRiver next argues Voogt=s opinions are unreliable.  Appellant selectively picks three items of cross examination where Voogt admitted that there was no doctor recommendation for the stated therapy.  However, no specific objections were lodged to that testimony.  Appellant ignores pages of testimony where Voogt  testified regarding the specific basis and methodology for his opinion. Rule 702's reliability requirement focuses on the principles, research, and methodology underlying an expert's conclusions.  See Tex. R. Evid. 702.  Under this requirement, expert testimony is unreliable if it is not grounded "in the methods and procedures of science@ and is no more than "subjective belief or unsupported speculation."  Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 (1993).  Expert testimony is also unreliable if there is too great an analytical gap between the data the expert relies upon and the opinion offered.  Gammill, 972 S.W.2d at 727.   In applying this reliability standard, however, the trial court does not decide whether the expert's conclusions are correct; rather, the trial court determines whether the analysis used to reach those conclusions is reliable.   Id. at 728. 

Here, Dr. Voogt used his own considerable expertise to assess actual medical costs.  He further consulted and confirmed with the treating physicians their opinions on both the need for and costs of on-going treatment.  Under these circumstances, we cannot say the trial court abused its discretion by refusing to exclude the totality of the expert=s testimony. See  Gammill, 972 S.W.2d at 727; Robinson, 923 S.W.2d at 558; Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623,629 (Tex. 2002).^[2]  This issue is overruled.

IV. Future Medical Expenses

SeaRiver maintains that the jury=s award of $1,000,000 in future medical and $15,000 in future disfigurement are excessive and not supported by the facts.  We agree in part.  The trial court instructed the jury to consider Athe reasonable value, not exceeding actual cost to Ella Pike, of medical care that you find from the evidence will be reasonably certain to be required in the future . . . .@  The jury question was worded:  AMedical care that, in reasonable probability, Ella Pike will sustain in the future.@  No objection was raised nor any issue brought forward regarding the jury instruction or jury question.  We are guided accordingly.

Texas courts of appeal have the power to review excessiveness of damages and to order remittitur in FELA actions and, by implication, in Jones Act cases as well. Maritime Overseas, 971 S.W.2d at 406.  The standard of review for an excessive damages complaint is factual sufficiency of the evidence.  Id. at 407.  Texas follows the "reasonable probability rule" for future damages for personal injuries.  Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 828 (Tex. App.BHouston [1st  Dist.] 1999, pet. denied).  The jury can make its determination regarding the amount of future medical expenses and care based on the injuries suffered, the medical care rendered before trial, the progress toward recovery under the treatment received, and the condition of the injured party at the time of trial.  Id.  However, to sustain an award of future medical expenses, the plaintiff must present evidence to establish that, in all reasonable probability, future medical care will be required and what the reasonable cost of that care will be.  Id.  It is within the jury's sound discretion to determine what amount, if any, to award in future medical expenses.   Whole Foods Market Southwest, L.P. v. Tijerina,  979 S.W.2d 768, 781-82 (Tex. App.BHouston [14th Dist.] 1998, pet. denied).   This standard of review, however, is "not so nebulous that a reviewing court will uphold a jury award for future medical expenses when there is no evidence."   Id.

The jury had the opportunity to hear Dr. Paula Miaczynski who testified to diagnosis and treatment of Pike=s injuries to her neck and leg, including a four to five centimeter laceration to the bone. Dr. James Macielak, orthopedic surgeon, testified regarding his examination of Pike and his treatment of her including X-rays and MRI.  He diagnosed two herniated or ruptured discs in Pike=s neck at levels C 4-5 and C 5-6.   He recommended on-going treatment including anti-inflammatory medication, muscle relaxants and physical therapy.^[3]  He also recommended injections and future surgery if Pike could not live with her condition.  Pike had not spontaneously recovered after over one and one-half years of conservative treatment as of October 2003.  The trial was held in August 2004.  Dr. Voogt testified to a life care plan that would cost $1,600,000.  Impairment ratings, medical records and other documentary evidence was adduced.  Dr. Voogt also testified that Amaintenance@ and Asupport care@ included matters such as assistance with doing chores around the house, cutting grass, handyman services, shoveling snow, driving, cooking, and grocery shopping.

  SeaRiver life planner Terry Arnold disagreed with much of Pike=s proposed treatment.  Appellant=s expert Arnold stated it was not timely to propose a life plan because Pike was in the middle of her treatment.  A life care plan could not be written because Pike had not yet had surgery and, potentially, her treatment could greatly change her outcome.  A video was taken of Pike showing her painting a fence and mowing her yard, contrary to some of Pike=s evidence. Arnold also opined that areas of attendant care were no longer necessary.

Also problematic to Pike=s future medical costs of $1,000,000 were the apparent inclusion of support and maintenance care of $54,020 per year.  Cutting grass and handyman services are not ordinary and necessary medical expenses. No medical testimony supported the necessity for this, nor was it prescribed. Vocational therapy and rehabilitation are not medical expenses though they were part of Dr. Voogt=s testimony. Pike was awarded substantial sums for past and future loss of earning capacity.  We also note the unchallenged jury findings of past physical impairment of $75,000 and future physical impairment of $450,000.    In short, the jury necessarily included elements of non-medical expenses in order to reach its finding of $1,000,000 in future medical expenses.  As the trial court instructed, one element of damages should not be included in any other element.

Based upon the evidence, projected medical expenses were $120,577.50.  Medications based upon past expenses were $6,739 annually or a total of $151,627.50  The cost of surgery was $22,440, for a grand total of $294,645.

Pike argues that medical expenses may include medical, nursing and custodial expenses. She cites Baptist Mem=l Hosp. Sys. v. Smith, 822 S.W.2d 67, 79 (Tex. App.BSan Antonio 1991, writ denied).  In that case, the San Antonio court upheld a future award of medical of $1,324,512, which was rendered after a significant remittitur by the trial court (over $1,000,000).  This case is not persuasive because the issue considered was for "medical, nursing and custodial expenses in the future."  Id. at 79.   Nursing and custodial expenses, as such, were not submitted, nor are such elements present here.  Smith was able to stay in a nursing home tolerably only because his two sisters and a niece came and stayed with him in his permanent brain-damaged state and performed nursing services such as tending to his incontinence, feeding him, and furnishing his daily medication.  Id.   Furthermore, in this case the jury was limited by instruction to the reasonable value of medical care, not exceeding actual cost, reasonably certain to be required in the future.

We find the jury=s award of $1,000,000 to be excessive and lacking factual sufficiency under the limitations imposed by the trial court=s instructions. We accordingly order remittitur of $705,355.  See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996) (courts of appeals must consider and weigh all of the evidence, not just that evidence which supports the verdict).

In the second part of this issue, SeaRiver maintains there is insufficient evidence to support the jury=s finding of $15,000 for future disfigurement.  In short, SeaRiver argues that although Pike had a laceration on her shin which went down to the bone, it was healed and that she would only receive a future award for scarring if she had surgery.  Appellant cites Rosenboom Mach. & Tool Co. 995 S.W.2d at 828. We find no direct support for appellant=s position in this authority.  In contrast, Pike argues that scarring is sufficient to support damages for disfigurement, citing Wal-Mart Stores, Inc. v. Tinsley, 998 S.W.2d  664, 673 (Tex. App.BTexarkana 1999, pet. denied).   We agree.   The term "disfigurement" has been defined as that which impairs the beauty, symmetry, or appearance of a person or thing;  that which renders unsightly, misshapened, or imperfect, or deforms in some manner.  Id. In addition, there are several cases upholding past and future disfigurement awards for surgical scars.  Id. Dr. Miaczynski testified to a 4 to 5 cm leg laceration to the bone.  Dr. Macielak testified to the necessity of future spinal surgery if Pike=s condition did not improve.  The jury=s finding is supported by the evidence.  The issue is overruled.

V. Offset

Finally, appellant argues she was entitled to an offset to Pike=s damage recovery because the short and long term disability payments made to her by Cigna were not a collateral source.  Five factors that may assist in distinguishing fringe benefits from benefits intended to respond to legal liability include:  (1) whether the employee makes any contribution to funding of the disability payment; (2) whether the benefit plan arises as the result of a collective bargaining agreement; (3) whether the plan and payments thereunder cover both work‑related and nonwork‑related injuries; (4) whether payments from the plan are contingent upon length of service of the employee; and (5) whether the plan contains any specific language contemplating a set‑off of benefits received under the plan against a judgment received in a tort action.  Phillips v. Western Co. of N. Am., 953 F.2d 923, 932 (5th Cir. 1992).   Payment by an employer into a fund for the purpose of providing a fringe benefit or deferred compensation would make the benefit subject to the collateral source rule.  Id.   This is contrasted with  payments made by the employer characterized as a voluntary undertaking by the employer to indemnify itself against its possible legal liabilities.  Id.  The five factors must not however be applied Awoodenly.@  Davis v. Odeco, Inc., 18 F.3d 1237, 1244 (5th Cir. 1994).  Rather, in determining whether a benefit plan that is wholly or partly funded by the tortfeasor is a collateral source, the ultimate inquiry remains whether the tortfeasor established the plan as a prophylactic measure against liability.  Id.

SeaRiver maintains that most of the evidence concerning the five factors favor a finding that the payments by Cigna for disability were not a collateral source. However, its own house counsel admitted that the plan was part of the employees= fringe benefits. The benefits are Asold and marketed@ to new employees as a benefit package.  In answer to cross-examination questions as to whether there was any dispute that the disability provisions were a fringe benefit for employees, house counsel responded: AI think it is a fringe benefit for the employees, yes.@  On this record, we agree that these benefits are at least Aclosely akin to a fringe benefit(s)@ that are Apart‑and‑parcel of its employees' compensation package.@  Id. at 1245. 

Even though our review is de novo, SeaRiver is further burdened by the fact that it neither requested nor obtained findings of fact and conclusions of law.  Accordingly we must presume that the trial court made findings necessary to support its legal conclusions. See Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex. 1987) (all questions of fact should be presumed found in support of the judgment, and the judgment affirmed if it could be upheld on any basis).  Furthermore, we must assume that because SeaRiver only argues before us entitlement to an offset under the Jones Act and not general maritime law, it did likewise to the trial court.  Thus the trial court was also empowered to deny offset because of Pike=s alternate theory of recovery where no offset claim was made.  Finally, although the Cigna disability program provided an offset for long term benefits, no offset was provided for short term benefits.  We hold that appellant has not demonstrated reversible error when the trial court refused to allow an offset.   SeaRiver failed to establish that its payments made should be properly characterized as a voluntary undertaking by the employer to indemnify itself against its possible legal liabilities.  This issue is overruled.

The judgment of the trial court is modified to reduce future medical damages to $294,645. As modified, the judgment is affirmed.

DON WITTIG                         

Retired Justice

Memorandum Opinion delivered and filed this

the 8^th day of June, 2006.    

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^[1] Retired Fourteenth Court of Appeals Justice Don Wittig, assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to the government code.  See Tex. Gov=t Code Ann. ' 74.003 (Vernon 2005).

^[2] SeaRiver apparently abandoned its argument concerning relevance.  In any event, the materiality of Pike=s future health care needs are patent.

^[3]  At the time of trial, Pike was taking Celebrex, Robaxin, Zoloft, Vicodin, and Norflex.