Guillermo Ochoa-Cronfel v. Patrick C. Murray ( 2015 )


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  •                                                                                 ACCEPTED
    03-15-00242-CV
    7830504
    THIRD COURT OF APPEALS
    AUSTIN, TEXAS
    11/13/2015 4:57:29 PM
    JEFFREY D. KYLE
    CLERK
    Case Number 03-15-00242-CV
    IN THE THIRD DISTRICT COURT OF APPEALS FILED IN
    3rd COURT OF APPEALS
    AUSTIN, TEXAS
    at Austin             11/13/2015 4:57:29 PM
    JEFFREY D. KYLE
    __________________________________________________________________
    Clerk
    GUILLERMO OCHOA-CRONFEL,
    Appellant,
    v.
    PATRICK C. MURRAY,
    Appellee.
    __________________________________________________________________
    From Cause Number D-1-GN-11-002136 in the 345th Judicial District Court
    of Travis County
    __________________________________________________________________
    BRIEF OF APPELLEE
    __________________________________________________________________
    WALTERS, BALIDO & CRAIN, L.L.P.
    Gregory R. Ave
    State Bar Number 01448900
    greg.ave@wbclawfirm.com
    10440 North Central Expressway, Suite 1500
    Dallas, Texas 75231
    Telephone Number (214) 347-8310
    Facsimile Number (214) 347-8311
    ATTORNEYS FOR APPELLEE
    November 13, 2015                             PATRICK C. MURRAY
    LIST OF PARTIES AND THEIR COUNSEL
    Pursuant to Texas Rule of Appellate Procedure 38.1(a) and
    38.2(a)(1)(A), the following are the parties to the trial court’s final judgment
    being appealed and their counsel:
    1.    Appellant:                    Guillermo Ochoa-Cronfel;
    2.    Counsel for Appellant:        Paul T. Morin, Esquire
    (trial and appellant counsel)
    Paul T. Morin, P.C.
    503 West 14th Street
    Austin, Texas 78701;
    Guillermo Ochoa-Cronfel, Esquire
    (appellant counsel)
    The Cronfel Law Firm
    2700 Bee Caves Road, Suite 103
    Austin, Texas 78746
    Chris Cagle, Esquire
    (trial counsel)
    The Cagle Law Firm, P.C.
    4425 South Mopac Expressway
    Building II, Suite 105
    Austin, Texas 78735
    3.    Appellee:                     Patrick C. Murray;
    4.    Counsel for Appellee:         Gregory R. Ave (appellate counsel)
    Jay R. Harris (appellate counsel)
    Walters, Balido & Crain, L.L.P.
    Meadow Park Tower, Suite 1500
    10440 North Central Expressway
    Dallas, Texas 75231;
    i
    Brett Payne (trial counsel)
    Katherine Sacra McLean (trial counsel)
    Walters, Balido & Crain, L.L.P.
    9020 North Capitol of Texas Highway
    Building II, Suite 225
    Austin, Texas 78759; and
    5.    Trial Judge:                  The Honorable Amy Clark Meachum,
    Presiding Judge of the 345th Judicial
    District Court of Travis County
    For clarity and convenience, Appellant Guillermo Ochoa-Cronfel will
    be referred to as “Cronfel”; Appellee Patrick C. Murray will be referred to
    as “Murray”; and the Honorable Amy Clark Meachum, Presiding Judge of
    the 345th Judicial District Court of Travis County, will be referred to as the
    “trial court.”
    The record on appeal consists of a one-volume Clerk’s Record which
    will be cited by page number as “[CR __],” a one-volume Supplemental
    Clerk’s Record which will be cited by page number as “[SCR __],” and a
    seven-volume Reporter’s Record which will be cited as “[__ RR __].”
    ii
    STATEMENT REGARDING ORAL ARGUMENT
    This matter presents no novel or complex issues. Oral argument is
    unnecessary because the dispositive issues have been authoritatively
    decided and the facts and legal arguments are adequately presented in the
    briefs and record. Moreover, the Court’s decisional process would not be
    significantly aided by oral argument. In this regard, oral argument would
    not clarify the parties’ written arguments or help the Court understand the
    issues presented, as the briefing has accomplished this.     Nevertheless,
    should the Court elect to hear oral argument regarding this matter, Murray
    respectfully asks for the opportunity to present same.
    iii
    TABLE OF CONTENTS
    LIST OF PARTIES AND THEIR COUNSEL.....................................................i
    STATEMENT REGARDING ORAL ARGUMENT ...................................... iii
    TABLE OF CONTENTS...................................................................................... iv
    TABLE OF AUTHORITIES................................................................................ vi
    STATEMENT OF THE CASE ............................................................................ xi
    ISSUES PRESENTED FOR REVIEW .............................................................. xii
    STATEMENT OF FACTS ..................................................................................... 1
    1.      Cronfel’s Lawsuit ............................................................................... 1
    2.      The Discovery Sanction ..................................................................... 2
    3.      The Trial & Jury Verdict .................................................................. 10
    4.      Cronfel’s Expert Testified as to His Previous and
    Subsequent Wrist Injuries, as Well as History of
    Sporadic Treatment .......................................................................... 13
    5.      Cronfel’s Testimony Lacked Credibility ....................................... 29
    SUMMARY OF THE ARGUMENT ................................................................. 39
    ARGUMENTS AND AUTHORITIES ............................................................. 40
    A.      The Standard of Review .................................................................. 40
    1.      Legal Sufficiency ....................................................................... 40
    2.      Factual Sufficiency – Against the Great Weight
    and Preponderance of the Evidence .......................................... 42
    3.      A Court May Not Substitute Its Judgment for that
    of the Jury’s ............................................................................... 44
    iv
    B.      The Jury’s Negligence Finding as to Cronfel Is Supported
    By Legally and Factually Sufficient Evidence .............................. 46
    C.      The Evidence Is Factually Sufficient to Support the Jury’s
    Damage Awards ............................................................................... 52
    D.      The Trial Court’s Discovery Sanction Was Not an Abuse
    of Discretion ...................................................................................... 63
    CONCLUSION AND PRAYER......................................................................... 68
    CERTIFICATE OF COMPLIANCE .................................................................. 70
    CERTIFICATE OF SERVICE ............................................................................. 71
    v
    TABLE OF AUTHORITIES
    Cases
    Armadillo Bail Bonds v. State, 
    802 S.W.2d 237
    (Tex. Crim. App. 1990) ........... 65
    Barrajas v. VIA Metro. Transit Auth.,
    
    945 S.W.2d 207
    (Tex. App.–San Antonio 1997, no writ) .................................. 62
    Barrios v. King Fisher Marine Serv., L.P.,
    2010 Tex. App. LEXIS 3955 (Tex. App.–Corpus Christi
    May 27, 2010, pet. denied) ............................................................................. 62-63
    In re Bennett, 
    960 S.W.2d 35
    (Tex. 1997) ............................................................. 65
    Berry-Parks Rental Equip. Co. v. Sinsheimer,
    
    842 S.W.2d 754
    (Tex. App.–Houston [1st Dist.] 1992, no writ) ...................... 67
    Braden v. Downey, 
    811 S.W.2d 922
    (Tex. 1991)................................................... 
    66 Bradf. v
    . Vento, 
    48 S.W.3d 749
    (Tex. 2001) ...................................................... 42
    Briones v. Levine’s Dep’t Store, Inc., 
    446 S.W.2d 7
    (Tex. 1969) .......................... 45
    Broesche v. Jacobson,
    
    218 S.W.3d 267
    (Tex. App.–Houston [14th Dist.] 2007, pet. denied) ............. 67
    Burroughs Wellcome Co. v. Crye, 
    907 S.W.2d 497
    (Tex. 1995) ........................... 42
    Cain v. Bain, 
    709 S.W.2d 175
    (Tex. 1986) ............................................................ 46
    Chrysler Corp. v. Blackmon, 
    841 S.W.2d 844
    (Tex. 1992) .................................... 66
    City of Keller v. Wilson, 
    168 S.W.3d 802
    (Tex. 2005) ..............................40, 41, 44
    Clancy v. Zale Corp.,
    
    705 S.W.2d 820
    (Tex. App.–Dallas 1986, writ ref’d n.r.e.) ............................... 45
    vi
    Croucher v. Croucher, 
    660 S.W.2d 55
    (Tex. 1983) .......................................... 41-42
    Crow v. Burnett, 
    951 S.W.2d 894
    (Tex. App.–Waco 1997, writ denied) ......... 62
    Dallas County Constable v. Kingvision Pay-Per-View,
    
    219 S.W.3d 602
    (Tex. App.–Dallas 2007, no pet.)............................................. 65
    Dawson v. Briggs,
    
    107 S.W.3d 739
    (Tex. App.–Fort Worth 2002, no pet.) ..................................... 52
    In re Does 1-10, 
    242 S.W.3d 805
    (Tex. App.–Texarkana 2007, no pet.) ........... 64
    Dow Chem. Co. v. Francis, 
    46 S.W.3d 237
    (Tex. 2001) ........................................ 42
    Dresser Indus., Inc. v. Lee, 
    880 S.W.2d 750
    (Tex. 1993) ..................................... 44
    Eberle v. Adams,
    
    73 S.W.3d 322
    (Tex. App.–Houston [1st Dist.] 2001, pet. denied) ................. 46
    Eichelberger v. Eichelberger, 
    582 S.W.2d 395
    (Tex. 1979) .................................... 65
    Finlan v. Peavy, 
    205 S.W.3d 647
    (Tex. App.–Waco 2006, no pet.) ................... 65
    Ford Motor Co. v. Ridgway, 
    135 S.W.3d 598
    (Tex. 2004) ..............................40, 41
    Garza v. Alviar, 
    395 S.W.2d 821
    (Tex. 1965)........................................................ 43
    Golden Eagle Archery, Inc. v. Jackson, 
    116 S.W.3d 757
    (Tex. 2003) .................... 44
    Gonzalez v. Wal-Mart Stores, Inc.,
    
    143 S.W.3d 118
    (Tex. App.–San Antonio 2004, no pet.)................................... 62
    Greiner v. Jameson,
    
    865 S.W.2d 493
    (Tex. App.–Dallas 1993, writ denied) ..................................... 67
    Herbert v. Herbert, 
    754 S.W.2d 141
    (Tex. 1988) ................................................... 45
    vii
    Hooper v. Smallwood,
    
    270 S.W.3d 234
    (Tex. App.–Texarkana 2008, pet. denied) .............................. 42
    Hyler v. Boytor,
    
    823 S.W.2d 425
    (Tex. App.–Houston [1st Dist.] 1992, no writ) ...................... 62
    IFC Credit Corp. v. Specialty Optical Sys.,
    
    252 S.W.3d 761
    (Tex. App.–Dallas 2008, pet. denied) ...................................... 65
    Ins. Network of Tex. v. Kloesel,
    
    266 S.W.3d 456
    (Tex. App.–Corpus Christi 2008, pet. denied)....................... 42
    In re K.A.R.,
    
    171 S.W.3d 705
    (Tex. App.–Houston [14th Dist.] 2005, no pet.)..................... 65
    Kentucky Cent. Life Ins. Co. v. Fannin,
    
    575 S.W.2d 76
    (Tex. Civ. App.–Amarillo 1978, no writ) .................................. 46
    Kutch v. Del Mar College,
    
    831 S.W.2d 506
    (Tex. App.–Corpus Christi 1992, no writ)........................64, 65
    Lawrence v. Kohl,
    
    853 S.W.2d 697
    (Tex. App.–Houston [1st Dist.] 1993, no pet.) ....................... 66
    Low v. Henry, 
    221 S.W.3d 609
    (Tex. 2007) .......................................................... 66
    Luna v. Torres, 2009 Tex. App. LEXIS 6972
    (Tex. App.–Corpus Christi August 31, 2009, no pet.) ...................................... 61
    M.D. Anderson Hosp. & Tumor Inst. v. Felter,
    
    837 S.W.2d 245
    (Tex. App.–Houston [1st Dist.] 1992, no writ) ...................... 45
    McDonald v. Dankworth,
    
    212 S.W.3d 336
    (Tex. App.–Austin 2006, no pet.)......................................passim
    viii
    McGuffin v. Terrell,
    
    732 S.W.2d 425
    (Tex. Civ. App.–Fort Worth 1987, no writ) ......................57, 62
    Merrell Dow Pharms., Inc. v. Havner, 
    953 S.W.2d 706
    (Tex. 1997) .................... 42
    In re N.R.C.,
    
    94 S.W.3d 799
    (Tex. App.–Houston [14th Dist.] 2002, pet. denied) ............... 64
    Oakley v. C.E. Duke’s Wrecker Service,
    
    557 S.W.2d 810
    (Tex. Civ. App.–Houston [1st Dist.] 1977,
    writ ref’d n.r.e.) ...................................................................................................... 49
    Onstad v. Wright,
    
    54 S.W.3d 799
    (Tex. App.–Texarkana 2001, pet. denied) ................................ 64
    Pilkington v. Kornell,
    
    822 S.W.2d 223
    (Tex. App.–Dallas 1991, writ denied) ..................................... 52
    Plas-Tex, Inc. v. U.S. Steel Corp., 
    772 S.W.2d 442
    (Tex. 1989) ........................... 43
    Pool v. Ford Motor Co., 
    715 S.W.2d 629
    (Tex. 1986) ........................................... 43
    Public Util. Comm’n v. Cofer, 
    754 S.W.2d 121
    (Tex. 1988) ................................. 64
    Rash v. Whisennand,
    
    453 S.W.2d 353
    (Tex. Civ. App.–Houston [14th Dist.] 1970,
    writ ref’d n.r.e) ....................................................................................................... 49
    Raw Hide Oil & Gas, Inc. v. Maxus Expl. Co.,
    
    766 S.W.2d 264
    (Tex. App. 1988, writ denied) .................................................. 43
    Scott Bader, Inc. v. Sandstone Prods.,
    
    248 S.W.3d 802
    (Tex. App.–Houston [1st Dist.] 2008, no pet.) ....................... 67
    Silcott v. Oglesby, 
    721 S.W.2d 290
    (Tex. 1986) .................................................... 44
    ix
    State v. PR Invs.,
    
    180 S.W.3d 654
    (Tex. App.–Houston [14th Dist.] 2005) ................................... 67
    Thompson v. Davis, 
    901 S.W.2d 939
    (Tex. 1995) ................................................. 67
    TransAmerican v. Powell, 
    811 S.W.2d 913
    (Tex. 1991) ....................................... 67
    Traylor v. Goulding, 
    497 S.W.2d 944
    (Tex. 1973) ................................................ 44
    Vaughn v. Tex. Employment Comm’n,
    
    792 S.W.2d 139
    (Tex. App.–Houston [1st Dist.] 1990, no writ) ...................... 66
    Other Authorities
    Texas Rule of Appellate Procedure 38.1(a) ..........................................................i
    Texas Rule of Appellate Procedure 38.2(a)(1)(A) ................................................i
    TEX. R. CIV. P. 215................................................................................................... 66
    TEX. R. CIV. P. 215.3................................................................................................ 66
    x
    STATEMENT OF THE CASE
    This appeal arises from cause number D-1-GN-11-002136, styled
    Guillermo Ochoa-Cronfel v. Patrick C. Murray, pending in 345th Judicial
    District Court of Travis County, the Honorable Amy Clark Meachum
    presiding.   The underlying lawsuit arose out of a purported collision
    between Cronfel’s bicycle and Murray’s dog on July 23, 2009. [CR 5.]
    During the course of discovery, Cronfel was sanctioned $5,000.00 for failing
    to comply with its written orders and necessitating numerous motions,
    hearings, and court intervention. [CR 413.]
    Cronfel’s claims proceeded to trial on November 17, 2014. [I RR 1].
    The jury determined both Cronfel and Murray were negligent in causing
    the injuries at issue, attributed 55% of the responsibility to Murray and 45%
    to Cronfel, and determined Cronfel’s past and future damages to be
    $18,345.00 as a result of the accident. [V RR 52-54.] The trial court entered
    its final judgment on the jury’s verdict on January 28, 2015. [SCR 3-5.]
    Thereafter, Cronfel filed a motion for judgment notwithstanding the
    verdict [CR 519-21], which the trial court denied [VI RR 4-14]. Cronfel also
    filed a motion for new trial [CR 527-34], which the trial court denied [CR
    543]. Thereafter, Cronfel filed this appeal [CR 545-46].
    xi
    ISSUES PRESENTED FOR REVIEW
    Cronfel’s appeal presents the following issues for the Court’s review:
    1.    Was there legally and factually sufficient
    evidence to support the jury’s verdict
    attributing 45% of the responsibility for the
    accident to Cronfel?
    2.    Was there legally and factually sufficient
    evidence to support the jury’s verdict as to
    amounts which would fairly and reasonably
    compensate Cronfel for his injuries, if any,
    that resulted from accident at issue?
    3.    Did the trial court abuse its discretion in
    imposing a sanction against Cronfel?
    xii
    STATEMENT OF FACTS
    1.   Cronfel’s Lawsuit
    On July 14, 2011, Cronfel brought suit against Murray because of a
    collision between Murray’s dog and Cronfel’s bicycle, which occurred
    almost two years earlier (on July 23, 2009) (the “accident”).      [CR 4-8.]
    Cronfel subsequently filed his first amended petition (the live pleading),
    which described the accident as follows:
    7.    On or about July 23, 2009, [Cronfel] was
    riding his bicycle in his neighborhood . . .. On the
    same date and time, [Murray] was in the
    neighborhood walking his dog. [Murray’s] dog, a
    German Shorthair hunting breed, got out of
    [Murray’s] control and ran toward and jumped into
    [Cronfel’s] bicycle. The collision knocked the front
    wheel of [Cronfel’s] bicycle out from under him,
    causing him to fly off the bicycle and slam into the
    asphalt pavement, causing severe bodily injuries.
    8.    . . . [Murray] was the owner of the dog, that
    proximately caused [Cronfel’s] injuries and
    damages. [Murray] allowed the dog to roam the
    neighborhood freely, and failed to control his dog in
    accordance with City of Austin laws and the
    applicable deed restrictions governing [Murray’s]
    property within the Travis Country subdivision. As
    a result of [Murray’s] conduct, [Cronfel] has
    suffered severe personal injuries and will require
    multiple surgical interventions.
    [CR 13.]
    1
    Based on these factual allegations, Cronfel asserted negligence and
    negligence per se claims against Murray.        [CR 13-14.]   Cronfel further
    asserted the acts or omissions of Murray breached the homeowner’s
    association restrictive covenants and regulations regarding control of pets
    which also was a proximate cause of his alleged injuries. [Id. at 14.]
    2.    The Discovery Sanction
    The Clerk’s Record includes the final motion for death penalty
    sanctions or alternatively motion to enforce order [starting at CR 176] and
    its attached exhibits [CR 185-354].       The exhibits attached to the death
    penalty motion are:
    (1)   Murray’s initial motion to compel [CR 217-20]
    and its attached exhibits [CR 221-46];
    (2)   Murray’s amended motion to compel [CR
    248-52] and its attached exhibits [CR 253-325];
    and
    (3)   Murray’s motion to compel responses to the
    subpoena duces tecum served on Lown and
    motion to compel responses to Murray’s
    second request for production of documents
    [CR 340-43] and its attached exhibits [CR 344-
    54].
    2
    Additionally, the record contains following orders and directives
    from the trial court related to the discovery sanction at issue:
    (1)   the March 5, 2014 order granting Murray’s
    motion and amended motion to compel and
    expressly “ordered [Cronfel] to provide a
    fully executed, Authorization to Disclose
    Protected Health Information by March 6,
    2014 at noon and to further waive the notice
    period” [CR 327] (emphasis added);
    (2)   the March 21, 2014 correspondence from the
    Honorable Judge Stephen Yelenosky in
    response to Cronfel’s motion for emergency
    protection from discovery to protect
    privileged medical records wherein the trial
    court states:
    After my staff gave [Cronfel] a
    setting for this afternoon on
    [Cronfel’s] Emergency Motion for
    Protection from Discovery to
    Protect     Privileged     Medical
    Records, I reviewed the motion.
    [Cronfel] has known since Judge
    Triana signed her order that he
    was to provide the releases
    without the restrictions now
    sought. [Cronfel] is charged with
    knowing that his medical records
    would contain at least some
    irrelevant material. So there is no
    emergency that has just arisen.
    3
    Since the relief sought would be
    contrary to Judge Triana's Order
    Granting [Murray’s] Motion to
    Compel, she is the judge you
    should contact if you wish to
    request a setting with her on the
    Central Docket or otherwise at her
    direction.
    [CR 338] (emphasis added);
    (3)   the September 18, 2014 order instructing
    Cronfel to “produce a signed authorization
    releasing [Lown’s] complete medical chart for
    [Cronfel] by tomorrow September 19, 2014”
    [CR 187; 382] (emphasis added); and
    (4)   the October 31, 2014 order granting Murray’s
    motion for sanctions and awarding same
    $5,000.00 in attorneys’ fees to “cover the
    attorney's fees that [Murray] incurred in
    response to this motion and all prior
    underlying hearings on prior motions to
    compel, and in part as sanctions for
    objectionable conduct, including but not
    limited    to   [Cronfel’s]    altering  the
    authorization form attached to the Order of
    the Court, signed and filed on September 18,
    2014 [CR 413] (emphasis added).
    The tale of the discovery sanction begins with Murray’s initial set of
    discovery served on Cronfel. Cronfel responded to Murray’s initial set of
    discovery on August 6, 2012. [CR 202-15.] This discovery included the
    following interrogatory and response:
    4
    INTERROGATORY NO. 13: State the names,
    addresses and telephone number of all physicians
    or other practitioners of the medical arts who have
    examined or treated you in the past ten (10) years
    and please state for what ailment, disease, condition
    or injury you were treated by each such physician
    or practitioner and the approximate dates of such
    treatments.
    ANSWER:        [Cronfel] objects to Interrogatory
    number thirteen in that it requests [Cronfel’s]
    private information in requesting treatment for
    matters that have nothing to do with this claim.
    Such information is not relevant nor shall it lead to
    the discovery of admissible evidence. Further the
    request for such information is harassing and
    overbroad, vague and ambiguous. [Cronfel] had
    no prior injuries to his right forearm or right wrist.
    *            *            *
    INTERROGATORY NO. 16: Are you under the care
    of any physician or other health care providers at
    this time? lf so, please state the name, address and
    telephone number of all such physicians or health
    care providers.
    ANSWER:       [Cronfel] objects to Interrogatory
    number 16 in that it requests [Cronfel’s] private
    information in requesting information for matters
    that have nothing to do with this claim. Such
    information is not relevant nor shall it lead to the
    discovery of admissible evidence. Further the
    request for such information is harassing and
    overbroad, vague and ambiguous. [Cronfel] is
    currently under the care of [Ira Lown, M.D.
    (“Lown”)] related to this incident, and his medical
    5
    records will be provided.
    [CR 208-9; emphasis added.]
    This discovery also included the following request for production
    and response:
    4.    True and correct copies of the medical and/or
    employment authorization attached to the
    [Murray’s] First Set of Interrogatories to
    [Cronfel].
    [Cronfel] objects to RFP number four in that it
    requests [Cronfel’s] private information in
    requesting such information and that such
    information is not relevant nor shall it lead to
    the discovery of admissible evidence. Further
    the request for such information is harassing
    and overbroad, vague and ambiguous.
    [Cronfel] will produce all medical records
    and billing records in the form of business
    records affidavit and medical billing records
    affidavits.
    [CR 213; emphasis added.]
    By August 16, 2013, Cronfel had failed and refused to provide any
    medical records – despite his previous representation to contrary. [CR 177,
    218.] Accordingly, Murray was forced to prepare and file a motion to
    compel. [CR 217-46.] Prior to this hearing, however, Cronfel and Murray
    reached an agreement that Cronfel would produce a complete copy of all of
    6
    his medical records, including those of Lown. [CR 249.] Although Cronfel
    produced some records, it was clear Cronfel had cherry-picked his records
    and only produced those favorable to his claim. [Id.] Cronfel’s failure to
    fully respond became more apparent during the deposition of his medical
    expert, James Robison, IV, M.D., on February 18, 2014. [Id. at 249-50.]
    Based on Dr. Robison’s testimony, Murray served depositions on
    written questions on the medical providers identified by Dr. Robison. [CR
    250.] Murray also sent correspondence to Cronfel requesting he waive the
    notice period so the records sought could be retrieved prior to the rapidly
    approaching trial date.          [Id.]   Cronfel did not respond, necessitating a
    second amended motion to compel. [CR 248.]
    The trial court heard Murray’s original and amended motions to
    compel and entered an order directing Cronfel to execute an unrestricted
    medical authorization, entitling Murray to obtain the complete medical
    records from the medical providers identified by Dr. Robison.1 [CR 327.]
    Despite the trial court’s explicit directive, Cronfel failed to provide the
    authorization by the date specified in the order. [CR 178; 329-30.]
    1
    Dr. Walters (a hand specialist), Healthsound Hand Clinic, and Select Physical Therapy from
    January 2005 through the present (i.e., March 2014).
    7
    On March 7, 2014, Cronfel finally provided Murray with a limited
    medical authorization in violation of the trial court’s order. [Id.] Shortly
    thereafter, Cronfel sought to further limit Murray’s discovery by filing an
    emergency motion for protection. [CR 332-34.] Cronfel asked the trial
    court to protect certain records which were obtained pursuant to his prior
    authorization. [Id.] However, the trial court rejected Cronfel’s request
    stating Cronfel was fully aware since the entry of the prior order that he
    was to provide medical releases without the restrictions he was now
    seeking. [Id. at 338.] Critically, the medical records sought included those
    of Lown – Cronfel’s testifying medical expert.
    Murray then noticed Lown’s deposition and included a subpoena
    duces tecum, seeking his complete medical chart regarding Cronfel. [Id. at
    345-47.] However, Cronfel and Lown, although initially stating they would
    provide it [Id. at 349], later reneged on that promise and refused to provide
    the chart (as evidenced by Murray’s motion to compel) [Id. at 340-43].
    Thus, Murray filed a third motion to compel requesting the medical chart.
    [CR 176-84.] The trial court heard Murray’s third motion on September 18,
    2014, and ordered Cronfel “to produce a signed authorization releasing Dr.
    Ira Lown’s complete medical chart for [Cronfel] by tomorrow, September
    8
    19, 2014.” [CR 187; 382.]
    In addition to sending the foregoing order to Cronfel, the trial court
    went so far as to include the very medical authorization it directed him to
    sign. [Id.] Nevertheless, Cronfel chose to ignore the trial court’s explicit
    order – making unilateral handwritten changes to the authorization
    provided by the trial court (i.e., limiting the medical records to be released
    to Murray). [Id. at 190.]
    On October 7, 2014, Murray filed a motion for death penalty
    sanctions (with exhibits). [CR 176-354.] Included with this motion was
    Murray’s original motion to compel (with its exhibits) [Id. at 217-46], his
    amended motion to compel (with exhibits) [Id. at 248-325], and his third
    motion to compel (with exhibits) [Id. at 340-54].       Murray also filed a
    supplemental motion for death penalty sanctions. [Id. at 355-65.]
    After conducting a hearing, the trial court entered an order imposing
    a $5,000.00 sanction against Cronfel:
    IT IS ORDERED that the portion of [Murray’s]
    motion seeking death penalty sanctions is denied at
    this time, and the Court will instead award lesser
    monetary sanctions, in part to cover the attorney’s
    fees that [Murray] incurred in response to this
    motion and all prior underlying hearings on prior
    motions to compel, and in part as sanctions for
    9
    objectionable conduct, including but not limited to
    [Cronfel’s] altering the authorization form attached
    to the Order of the Court, signed and filed on
    September 18, 2014;
    [CR 413] (emphasis added).
    3.   The Trial & Jury Verdict
    The case was called to trial on November 17, 2014. [I RR 1.] After a
    three-day trial, the jury returned a verdict assessing Cronfel with 45% of
    the fault in causing his related injuries and placing 55% of the
    responsibility on Murray. [CR 498-99; V RR 53.] The Charge of the Court,
    which also reflects the jury’s verdict, included the following instructions
    and definitions, provides as follows:
    INSTRUCTIONS AND DEFINITIONS
    “Negligence” means failure to use ordinary care,
    that is, failing to do that which a person of ordinary
    prudence would have done under the same or
    similar circumstances or doing that which a person
    of ordinary prudence would not have done under
    the same or similar circumstances.
    “Ordinary care” means that degree of care that
    would be used by a person of ordinary prudence
    under the same or similar circumstances.
    “Proximate cause” means a cause that was a
    substantial factor in bringing about an event, and
    10
    without which cause such event would not have
    occurred. In order to be a proximate cause, the act
    or omission complained of must be such that a
    person using ordinary care would have foreseen
    that the event, or some similar event, might
    reasonably result therefrom. There may be more
    than one proximate cause of an event.
    Did the negligence, if any, of those named below
    proximately cause the injury in question?
    QUESTION 1
    Answer “Yes” or “No” for each of the following:
    1.   Patrick Murray                    YES
    2.   Guillermo Ochoa-Cronfel           YES
    If you have answered “Yes” to Question 1 for more
    than one of those named below, then answer the
    following question. Otherwise, do not answer the
    following question.
    Assign percentages of responsibility only to those
    you found caused or contributed to cause the
    injury. The percentages you find must total 100
    percent. The percentages must be expressed in
    whole numbers. The percentage of responsibility
    attributable to any one is not necessarily measured
    by the number of acts or omissions found. The
    percentage attributable to any one need not be the
    same percentage attributed to that one in answering
    another question.
    11
    QUESTION 2
    For each of those named below that you found
    caused or contributed to cause the injury, find the
    percentage of responsibility attributable to each:
    1.    Patrick Murray               55%
    2.    Guillermo Ochoa-Cronfel      45%
    Total                        100%
    [CR 497-99.]
    Additionally, the jury determined the following sums of money
    would reasonably and fairly compensate Cronfel for his injuries:
    1.    Physical pain and mental anguish sustained in
    the past.
    Answer: $2,500.00
    2.    Physical pain and mental anguish that, in
    reasonable probability, [Cronfel] will sustain
    in the future.
    Answer: $1,000.00
    3.    Physical impairment sustained
    Answer: $500.00
    4.    Physical impairment that, in reasonable
    probability, [Cronfel] will sustain in the
    future.
    12
    Answer: $2,000.00
    5.     Medical care expenses incurred in the past.
    Answer: $9345.00
    6.     Medical care expenses that, in reasonable
    probability, [Cronfel] will incur in the future.
    Answer: $3,000.00
    7.     Disfigurement sustained in the past.
    Answer: $ 0
    8.     Disfigurement that, in reasonable probability,
    [Cronfel] will sustain the future.
    Answer: $ 0
    [Id. at 500-01.]
    4.       Cronfel’s Expert Testified as to His Previous and Subsequent Wrist
    Injuries, as Well as History of Sporadic Treatment.
    At the outset of Dr. Lown’s2 cross-examination, the jury heard
    testimony that Cronfel had injured the same wrist, in the same manner, in a
    bicycle accident four years earlier. [IV RR 89-95.] Further, the jury learned
    Lown had not treated Cronfel until August of 2011, more than two years after
    the accident. [Id.] Indeed, the jury was also told Cronfel never sought to
    2
    Dr. Lown was Cronfel’s retained expert witness.
    13
    have his previously injured writ surgically repaired.
    Q:    And just so we're clear, you’ll recall you were
    asked questions that -- and I’m paraphrasing.
    But the idea was that it’s – it’s better to lay
    hands on a patient, to actually examine them
    to offer a more thorough opinion?
    A.    That’s correct.
    Q.    And that was kind of the nature of those
    questions. And you agree you never met
    [Cronfel] until August of 2011, correct?
    A.    That’s correct.
    Q.    That’s more than two years after the accident
    that forms the basis of this lawsuit, correct?
    A.    That’s correct.
    Q.    And it’s another three-and-a-half years before
    this event of 2005, correct?
    A.    Yes.
    Q.    And so whatever occurred right at the time of
    November of 2005, you did not lay hands on
    [Cronfel] and examine him in any way,
    correct?
    A.    That’s correct.
    Q.    You don’t -- you didn’t examine him, visit
    with him, take a history from him, review his
    actual films in connection with that 2005
    event, correct?
    14
    A.   That’s correct.
    Q.   All right. And, likewise, within the two years
    following the 2009 event, you did not lay
    hands on [Cronfel], examine him, review his
    films, for two years later?
    A.   That’s correct.
    Q.   Now -- but you agree we -- we talked about
    this in your deposition. [Cronfel] did, in fact,
    have an almost identical, certainly a very
    similar, bike wreck in November of 2005. You
    understand that’s true?
    A.   Yes
    *           *            *
    Q.   And you understand that [Cronfel] saw Dr.
    Walters following that fall, correct?
    A.   That’s correct.
    Q.   And Dr. Walters, he was a well-reputed hand
    surgeon in the local community before his
    untimely death, correct?
    A.   Yes, he was.
    Q.   He was a respected surgeon?
    A.   Yes.
    Q.   And you understood that Dr. Walters,
    following this fall and the history that
    15
    [Cronfel] gave, had [Cronfel] undergo a CT
    scan of his wrist, did he not?
    A.   That’s correct.
    Q.   And that CT scan, which I finally have been
    able to bring up on the screen -- well, let’s just
    go through it together and we can -- well, here
    we go, maybe. . . . . You talked about this a
    little bit with Mr. Cagle. That CT scan in
    November, it was taken November 16th of
    2005, showed this widening, mild, but albeit
    widening, at the scapholunate articulation,
    correct?
    A.   That’s correct.
    Q.   And that is the same widening that you had
    discussed that eventually -- or you had offered
    the opinion will lead to surgery in 2014-2015,
    correct?
    A.   That’s correct.
    Q.   And Dr. Walters, or this -- this CT scan also
    referenced a concern with a ligamentous -- is
    that how you say that?
    A.   That’s correct.
    Q.   Ligamentous injury, meaning an injury to the
    ligament, but it doesn’t show up – that’s the
    kind of thing that doesn't show up on a CT
    scan, right?
    A.   That’s correct.
    16
    Q.   So he referred [Cronfel] for an MRI, true?
    A.   That’s true.
    Q.   So [Cronfel] -- and, of course, you have not
    had the benefit of the actual review of that CT
    scan of November 16th, true?
    A.   That’s true.
    Q.   You haven’t seen the film?
    A.   I’ve seen the reports.
    Q.   And, likewise, you haven’t seen the MRI that
    was taken on December the 20th. Here it is.
    December 20th, the MRI that Dr. Walters
    wanted [Cronfel] to undergo, he did, in fact,
    have that MRI of his right wrist, correct?
    A.   That’s correct.
    Q.   And that MRI revealed this disruption, which
    is another word for tear, correct?
    A.   That’s correct.
    Q.   The MRI taken three-and-a-half years before
    the fall in July ‘09 showed that [Cronfel]
    already had a tear at this scapholunate
    ligament, true?
    A.   That’s correct, yes.
    Q.   It doesn’t say mild and it doesn’t say the
    location. It simply says disruption, correct?
    17
    A.   That’s correct.
    Q.   And, again, this particular tear is the topic or
    the subject that’s going to lead to this four-
    corner fusion that you want to perform?
    A.   That’s correct.
    Q.   And this tear is evidenced as far back as 2005,
    December of that year, correct?
    A.   Yes.
    Q.   2005 [Cronfel] already has a tear in this part of
    his wrist, as evidenced by this MRI, correct?
    A.   That’s correct.
    *           *            *
    Q.   And now that I finally got this working, just
    so that we’re clear, the initial record shows
    that [Cronfel] fell off bicycle. Tried to break
    fall with right hand. Pain along pinky down
    to the wrist. Limits use. Do you see that?
    A.   I do.
    Q.   And that’s what led to the CT scan and the
    MRI, which revealed the tear in his wrist,
    true?
    A.   True.
    Q.   And the tear that was evidenced in 2005 and
    the tear that was evidenced following 2009, as
    we sit here today in the end of 2014, five years
    18
    after this fall and nine years after the other
    fall, this tear still has not been addressed by
    [Cronfel], true, in a surgical way?
    A.    In a surgical way; that’s correct.
    [IV RR 89-95 (emphasis added).]
    In contrast to Cronfel’s testimony as to his purported physical pain
    and inability to perform routine activities, his medical records and the Dr.
    Lown’s testimony painted a much different picture.
    Q.    And within three months of treating with Dr.
    Windler, [Cronfel] appears there on October
    21st of 2009, and it says he’s got pain with
    activities of lifting and push-ups. Do you see
    that?
    A.    I do.
    Q.    So within three months of the fall in Travis
    Country that [Cronfel] had, he has resumed
    his push-ups and weight lifting, true, with
    pain?
    A.    True.
    Q.    And at that time, within three months of this
    accident, he has full motion of the wrist and
    no tenderness over the distal radial or ulnar
    joint at that time, true according to Dr.
    Windler’s records?
    A.    That’s true. . . .
    19
    Q.   But full range of motion, in any event, and no
    tenderness in those areas?
    A.   Yes.
    Q.   True.
    A.   Yes.
    Q.   And he appears a year later in 2010, now
    almost a year removed from this event in
    Travis Country. And at that time, he’s still
    having pain, but he’s reporting that he’s still
    doing his bench press, his pull-ups, and his
    push-ups, is he not?
    A.   He is.
    Q.   So, again, a year after this accident, [Cronfel]
    is still engaging in his weight lifting activities
    despite whatever’s going on in his wrist, true?
    A.   That’s correct.
    Q.   And then the June -- he gets a -- an X-ray on
    July 21st, 2010. And just so there’s no
    question, at that time, a year after this
    accident, there’s no change in the wrist X-ray
    compared to the prior wrist X-ray, the date
    after this accident, true?
    A.   That’s correct.
    Q.   So within a year of this accident, his wrist is
    unchanged, true?
    A.   True.
    20
    Q.   And then [Cronfel] begins to treat with
    [Lown] on August 11, 2011 and continues to
    treat with [Lown] . . . to date. But, in
    particular, he treats with you on February the
    2nd of 2012, does he not?
    A.   He does.
    Q.   And at that time, again, he is very physically
    active with a constant exercise regimen, true?
    A.   That’s true.
    *           *            *
    Q.   And at that time [Cronfel], I guess the -- it
    seems to me, my interpretation is the therapist
    is getting onto him that he's not icing, but he -
    - but he hurts after his exercise, this joint --
    this joint pain hand hurts after exercise, and
    he's not icing it.
    A.   That’s correct.
    Q.   That’s what’s reflected in this record?
    A.   Uh-huh.
    Q.   And the therapist tells him he needs to
    stretch, pre-strengthening at the gym, and he
    needs to use ice post-exercise and he’s not
    doing it.
    A.   That’s correct.
    21
    Q.    Is that what’s reflected in this record? And
    then he returns to either you or your physical
    therapist in March of 2012, and, again, he’s
    complaining that during a workout he
    torqued his right wrist forcing his shoulder
    into hyperextension, and I don’t know if ER
    means emergency room or not. But in any
    event, he torqued his right wrist while lifting,
    sometime immediately before Feb- -- pardon
    me, March 20th of 2012, true?
    A.    True.
    Q.    And, you know, with weight lifting, I mean,
    that’s certainly something that’s foreseeable.
    You can torque your wrist while lifting
    weights?
    A.    True.
    Q.    You can torque your wrist while lifting kettle
    bells, in particular, true?
    A.    True.
    Q.    And that’s what appears to have happened
    with [Cronfel] in March two years ago, true,
    according to this record, he torqued his right
    wrist?
    A.    Yes.
    [IV RR 95-99.]
    22
    By November of 2012 – approximately three years after the accident –
    the medical records (and testimony expert testimony) presented to the jury
    showed that Cronfel was physically able to go deer hunting, including
    loading all of his supplies and that he continued his rigorous physical
    fitness workout regimen. [CR 100.] In fact, Cronfel injured himself while
    working out with kettle weight-bells and heavy weights (against the
    specific advice of his physical therapist and Lown). [IV RR 95-99.]
    In March of 2013, Cronfel returned to see Dr. Lown, complaining of
    pain in his right hand – yet, the records reveal Cronfel’s complaints in his
    right hand or wrist were the result of a separate and distinct bicycle accident,
    which occurred in August of 2012 – i.e., over three years after the accident
    at issue.
    Q.    Now, [Cronfel], again, returns to your office
    on March 5th of 2013, this past year, and he’s
    talking about his right hand still hurts, but the
    left is better. Do you see that?
    A.    I do.
    Q.    And then he returns again two weeks later,
    and he's still complaining of this right hand
    pain. But here's what is interesting here: On
    your medical record, on March 29th, 2013, it
    contains a reference to HPI. And what does
    HPI stand for on your medical records?
    23
    A.   History of present illness.
    Q.   And so this was with respect to [Cronfel’s]
    right wrist. His history of present illness is
    what?
    A.   I’m sorry?
    Q.   What’s [Cronfel’s] history of present illness?
    A.   Bicycle riding August 5th, 2012.
    Q.   Okay. And just so we’re clear, according to
    your medical record from your office,
    [Cronfel] is complaining of right wrist pain,
    and the history provided for his right wrist
    pain last year, was a bicycle accident on
    August the 5th of -- bicycle riding on August
    the 5th of 2012, true?
    A.   That’s what it says.
    Q.   And then he returns again on August –
    pardon me, May 28th, and he had an event at
    the Westlake – or it took him to the Westlake
    Hospital. He comes to your office, and he’s
    talking about, he woke up on May 25th with
    swelling and pain in his right wrist. And,
    again, what is the history of his present
    illness?
    A.   August 5th, 2012.
    Q.   So, again, [Cronfel] woke up and, in fact -- let
    me just show you the record. He goes to
    Westlake      Hospital    emergency      room
    complaining of right wrist pain, and it’s
    24
    talking about, had soft tissue mobilization. I
    can’t make out a lot of this. But having
    painful swelling at right wrist, which – so
    painful that it took him to the ER at Westlake,
    correct?
    A.   Correct.
    Q.   And he follows up with your office again the
    next day, after having to go to the emergency
    room and the history of present illness. What
    took him to the emergency room was
    whatever happened bicycle riding on August
    5th of 2012, true?
    A.   That’s what the record says.
    Q.   And that’s what three other records before
    that say, do they not?
    A.   They do.
    Q.   As do subsequent records where he’s, again,
    complaining of right wrist pain, and your
    therapist reports, Patient doesn’t wear his
    splint very often because it gets in the way.
    Do you see that?
    A.   I do.
    Q.   And so he’s there treating, still for his right
    wrist with a history of present illness of
    August the 5th of 2012, true?
    A.   True.
    25
    Q.     And not to beat a dead horse, but this occurs
    again on -- on December 31st, he’s at your
    office complaining, same history. He’s there
    again in March of this year, same history.
    He’s there in July of this year, same history.
    He’s there in August, same history. And then
    you perform the surgery to the right wrist,
    this one you’ve described to this jury. And
    what does the narrative say? This is -- this is a
    couple of months ago, September 11th, 2014.
    At that time, this is the -- this is the history
    that you give in the narrative, correct?
    A.     Correct.
    Q.     What does it say? This is a 56-year-old male
    who is riding his bike and was hit by a car
    on August the 5th of 2012 and sustained a
    radial head fracture with some slight
    shortening after this heal. The report that you
    submitted, or the narrative report that you
    created in connection with your surgery done
    a couple of months ago, references a whole
    new third accident involving a car in 2012,
    does it not?
    [IV RR 101-04.]
    Incredibly, Dr. Lown blithely suggested the dozen or more references
    to Cronfel’s August 2012 collision with an automobile was a mistake or the
    fault of his medical assistant. [Id. at 105.] Further undermining Cronfel’s
    efforts to relate his recent complaints to the incident involving Murray’s
    dog in July of 2009 were the medical records Cronfel placed in evidence
    26
    demonstrated that by October of 2009, his right wrist had full range of
    motion and was found, upon examination, to be “normal.”
    Q.    And then he saw Dr. Windler, who saw him
    twice in August, once in September, and once
    in October of ‘09. You’re familiar with those
    records, correct?
    A.    Correct.
    Q.    And we already talked about the October ‘09.
    At the end of October, he’s got full range of
    motion in his wrist, true?
    A.    Correct.
    Q.    And essentially, at that time he had a normal
    exam, did he not?
    A.    I believe so.
    Q.    So -- just so we’re clear, on August 21st of
    2009, Dr. -- according to Dr. Windler’s
    records, [Cronfel’s] wrist exam was normal.
    A.    I believe so.
    Q.    And it was not as best I recall, he was not
    treated again for the right wrist until June of
    2010, some eight months later, where he had
    an injection in his wrist, correct?
    A.    Okay.
    Q.    Do you have any reason to disagree with that?
    27
    A.    No.
    [IV RR 107.]
    The jury also heard testimony that after Cronfel’s doctor advised him
    that his wrist was normal and that he had full range of motion, he did not
    seek further treatment for some eight months later, then went another nine
    months until seeking treatment, and then still another five months until
    going to see Dr. Lown for the first time (which is also just about the time
    suit was filed). [IV RR 108.]
    The inconsistencies Murray highlighted to the jury as to Cronfel’s
    assertion the 2009 accident was the sole cause of his wrist injury included:
    &     Prior Injury: the evidence showed Cronfel
    had sustained a virtually identical injury to
    the same wrist in 2005 [Record cited needed];
    &     No Surgery: the evidence showed Cronfel
    never sought surgery to repair the previously
    2005 injury to his right wrist [Record cited
    needed];
    &     Subsequent Injury: the evidence showed
    Cronfel had collided with an automobile
    while riding his bike, which injured the same
    wrist [Record cited needed];
    &     Full Range of Motion and the Wrist
    Medically Declared Normal in August 2009:
    the evidence showed Cronfel had regained
    28
    full range of motion and his wrist was
    declared    “normal”   by   Dr.   Windler
    approximately one month after the accident
    [Record cited needed];
    &     Sporadic and Inconsistent History of
    Treatment: the evidence showed Cronfel
    sought sporadic, at best, medical on his wrist,
    yet maintained an active lifestyle and
    strenuous exercise regimen, and missed no
    time from work [Record cited needed].
    5.    Cronfel’s Testimony Lacked Credibility.
    Subsequent to the Dr. Lown’s testimony, Cronfel testified that,
    contrary to what his medical records said, he never sustained a right wrist
    injury in 2005.
    Q.    And, of course, you remember giving your
    deposition long about a year ago, October of –
    of 2013, right?
    A.    Yes, sir.
    Q.    And you agree that in your sworn deposition,
    you told me back then that you had never
    injured your right wrist before the July 2009
    event, correct?
    A.    I think that later in that deposition I had sort
    of cleaned that up a little bit.
    Q.    But at least when I asked you the specific
    question, prior to the event that we are here
    for today, had you previously sustained an
    29
    injury to your right wrist, do you remember
    what your response was?
    A.    What you just said, sir.
    Q.    Never, correct?
    A.    Yes, sir.
    Q.    And you recall that I asked you, prior to the
    event that we are here for today involving Mr.
    Murray’s dog, have you ever seen a
    healthcare provider for the purpose of
    treating right elbow pain or right wrist pain,
    and you answered that I remember, no,
    correct?
    A.    Correct.
    *            *          *
    Q.    And you didn’t -- when I took your
    deposition, you didn’t remember having any
    therapy in 2005, and we know that not to be
    true as well, correct?
    A.    That’s true.
    *            *          *
    Q.   And you do agree that you did, in fact, have a
    ligament injury in 2005, correct?
    A.    That’s what the medical records say, yes, sir.
    Q.    And you did have treatment to your right
    wrist in 2005 with Dr. Walters, correct?
    
    30 A. I
    don't remember whether I had treatment
    with him in 2005 for my wrist.
    [IV RR 174-77.]
    Significantly, Cronfel also testified that he injured his right hand and
    wrist in a 2007 bicycle accident:
    Q.    And, you just testified you had another
    bicycle accident in 2007 where you went over
    the handlebars and you hurt your right hand,
    correct?
    A.    Yes, sir.
    Q.    And very similarly -- and as a result of that
    injury, you also had some difficulty typing,
    difficulty gripping, difficulty writing, correct?
    A.    If that’s what it says, it's true.
    [Id. at 177-78.]
    Additionally, Cronfel’s cross-examination yielded the following
    telling testimony:
    Q.    Now, this accident occurred, you’ve talked
    about this, it was on July the 23rd of 2009
    around 6:00 to 7:00 p.m., correct?
    A.    Somewhere in there, yes, sir.
    Q.    And you’re on a street that you’re familiar
    with and that you rode often, correct?
    31
    A.   Yes, sir. That’s correct.
    Q.   And prior -- this was -- you talked about this
    earlier. This was your neighborhood. You
    rode it. You had two or three routes in the
    neighborhood you rode hundreds of times,
    correct?
    A.   That’s correct, sir.
    *              *        *
    Q.   You agree that -- that wherever the contact, if
    any, was, it was at your front wheel, not
    against you and not at your back wheel?
    A.   Right. It was the front wheel, yes, you’re
    right, sir.
    Q.   And, of course, you were on a road bike?
    A.   Yes, sir.
    Q.   And the road bikes are such you actually have
    to clip into your pedals where your shoes are
    attached to your pedals, right?
    A.   Correct, sir.
    Q.   And at the time of the accident, you were
    coming up on parked cars, right?
    A.   Correct, sir.
    Q.   And you agree you were going pretty fast?
    
    32 A. I
    was trying to pick up speed, yes, sir.
    Q.   And I think the term you might have used
    before is, you were revving up, correct?
    A.   Yes, sir. That’s correct.
    Q.   You were going pretty fast and revving up
    beside the parked cars, correct?
    A.   That is true.
    Q.   And you agree that the rules of the road apply
    to bicyclists just like they do to automobile
    drivers, correct?
    A.   I would think so.
    Q.   The rules of the road apply to bicyclists, true?
    A.   I think so, yeah.
    Q.   And a bicyclist, like anybody operating a
    motor vehicle on a public street, you’ve got a
    duty to keep a proper lookout, right?
    A.   Right.
    Q.   You’ve got to look at your surroundings,
    right?
    A.   Right.
    Q.   Well, in fact, on a bicycle, you’re even more
    vulnerable, and so you’ve got to have this
    heightened sense of everything that’s going on
    33
    around you, true?
    A.   True.
    Q.   And I can’t bring that picture back up, but
    you would agree, this roadway is pretty open,
    fairly flat, correct?
    A.   It’s kind of an uphill.
    Q.   A gradual uphill?
    A.   Yes, sir.
    Q.   And other than cars parked along the street,
    there’s nothing there to block your view, no
    curves, no big hump in the road, anything like
    that, correct?
    A.   Yes, sir.
    Q.   It's your testimony and contention, you never
    saw Mr. Murray or his dog at any moment
    before the dog came out in -- in front of you or
    into your path?
    A.   Yes, sir.
    Q.   And as you were going pretty fast and
    starting to rev up, you never noticed Mr.
    Murray over in the yard, correct?
    A.   Yes, sir. That’s correct.
    Q.   And we’ve already talked about this, but the
    collision, if any, occurred between your front
    wheel and the animal?
    34
    A.   Yes, sir.
    *          *           *
    Q.   Do you know the distance separating you and
    Magnum, the dog, as you noticed that
    something may occur?
    A.   He was on top of me when I noticed. It was
    already -- he was already on top of me
    practically.
    Q.   Now, when you say on top of you, you don’t
    literally mean on you?
    A.   No. He came out from behind a car, or, you
    know, he was coming out from behind a car.
    When I noticed him, he was already almost
    making contact with the bike. It was a very
    short distance.
    Q.   I thought I understood earlier, you felt like
    you were far enough out in the roadway that
    you were not concerned about a swinging
    door of a parked car?
    A.   Yes, sir.
    Q.   So what distance is that? What distance made
    you feel safe far enough away from those
    parked cars?
    A.   You know, three, four feet - something like
    that.
    Q.   So in any event, the dog, Magnum, would
    have had to have come out three or four feet
    35
    in order to get up to your path, fair?
    A.   I guess so.
    Q.   So the dog would have had to move three or
    four feet within your point of view before any
    contact could have been made?
    A.   No. Because that’s assuming that I’m seeing
    him come in front of me. He came -- as I was
    passing that car and came from the side this
    way.
    Q.   I thought we agreed it was between your
    front wheel and the dog, if at all, the contact?
    I mean, it’s not as if he’s coming into you.
    He’s coming into your front wheel?
    A.   He came into my front wheel from the side,
    sir.
    Q.   As you’re going pretty fast and revving up,
    the dog has an opportunity to travel four feet
    into the side of your wheel, three feet out
    from a parked car as you traveled up this
    roadway?
    A.   You know, you can come up with numbers.
    All I can tell you is that he came into my bike
    from the side, and I had no chance to react or
    avoid him.
    Q.   And you agree you did not react; you did not
    shift to the left or the right; brake; do anything
    to avoid the accident?
    A.   I had no chance.
    36
    Q.    And you did not do so, true?
    A.    True.
    [IV RR 178-85.]
    Later in the trial, the jury heard Murray’s testimony as to where
    Cronfel was immediately after the claimed collision with Magnum, the
    dog:
    Q.    And when you went out there, you heard the
    commotion behind you, you turned, you go to
    see what has occurred. Where did you find
    [Cronfel]?
    A.    In the middle of the street.
    Q.    Was he up against that white car?
    A.    No, no. He was three, four feet, at least, to the
    left of it. He wasn’t even with the car. He
    was a little forward of the car.
    Q.    He was forward of the car and out in the
    middle of the street?
    A.    Correct.
    Q.    And that’s where -- based on what you saw
    immediately thereafter, that’s where he came
    to rest?
    A.    That’s correct.
    Q.    In the middle of the street?
    37
    A.     Correct.
    [IV RR 223-24.]
    Thus, the jury heard testimony from Cronfel that he had a duty to
    keep a lookout, was riding very fast in the middle of the road, never saw
    Magnum, and did nothing to avoid colliding with the dog.
    38
    SUMMARY OF THE ARGUMENT
    The jury concluded Murry was 55% responsible for Cronfel’s injuries
    as a result of his bike-dog collision and Cronfel bore 45% of the
    responsibility. The jury also concluded $18,345.00 would fairly compensate
    Cronfel for the injuries proximately caused by this collision.         Given
    Cronfel’s high-speed cycling on a residential street at the time of the
    collision and Cronfel’s history of injuries before and after the incident, the
    jury’s verdict was clearly supported by the evidence. Of course, the jury
    was the sole judge of the credibility of the witnesses – e.g., Cronfel and Dr.
    Lown – and the weight, if any, to be given to their testimony. Indeed,
    Cronfel’s appeal as to the sufficiency of the evidence supporting the jury’s
    verdict boarders on the frivolous.
    As for the trial court’s $5,000.00 sanction for Cronfel’s willful and
    conscious disregard of its discovery order, the record fully supports such a
    sanction, that it was imposed to secure compliance with discovery rules
    and to enforce the orders entered by the trial court, and therefore, does not
    represent an abuse of discretion.
    39
    ARGUMENTS AND AUTHORITIES
    A.    The Standard of Review
    1.        Legal Sufficiency
    It is well established that a reviewing court will sustain a legal
    sufficiency point if the record reveals: (a) the complete absence of a vital
    fact; (b) the law precludes giving any weight to the only evidence offered to
    prove a vital fact; (c) the evidence offered to prove a vital fact is no more
    than a mere scintilla; or (d) the evidence establishes conclusively the
    opposite of the vital fact. City of Keller v. Wilson, 
    168 S.W.3d 802
    , 810 (Tex.
    2005) (citing Robert W. Calvert, “NO EVIDENCE” & “INSUFFICIENT EVIDENCE”
    POINTS     OF   ERROR, 
    38 Tex. L. Rev. 361
    , 362-63 (1960)). Ultimately, a legal
    sufficiency assessment determines whether the evidence at trial would
    enable reasonable people to reach the verdict under review. 
    Id. at 827.
    When the evidence offered to prove a vital fact is so weak as to do no
    more than create a mere surmise or suspicion of its existence, the evidence
    is less than a scintilla and, in legal effect, is no evidence. Ford Motor Co. v.
    Ridgway, 
    135 S.W.3d 598
    , 601 (Tex. 2004) (citing Kindred v. Con/Chem, Inc.,
    
    650 S.W.2d 61
    , 63 (Tex. 1983)). But more than a scintilla of evidence exists if
    the evidence rises to a level that would enable reasonable and fair-minded
    40
    people to differ in their conclusions. 
    Ridgway, 135 S.W.3d at 601
    (citing
    Merrell Dow Pharm., Inc. v. Havner, 
    953 S.W.2d 706
    , 711 (Tex. 1997)). As this
    Court is well aware, the reviewing court reviews the evidence in the light
    most favorable to the verdict, crediting favorable evidence, and
    disregarding contrary evidence. 
    Wilson, 168 S.W.3d at 807
    .
    Moreover, as this Court acknowledged in McDonald v. Dankworth, 
    212 S.W.3d 336
    , 339 (Tex. App.–Austin 2006, no pet.), jurors are the sole judges
    of the credibility of the witnesses and the weight to give their testimony.
    When there is conflicting evidence, it is the province of the jury to resolve
    such conflicts. 
    Wilson, 168 S.W.3d at 820
    . If conflicting inferences can be
    drawn from the evidence, Texas courts assume jurors made all inferences
    in favor of their verdict if reasonable minds could, and disregard all other
    inferences. 
    Id. at 821.
    But if the evidence allows only one inference, the
    court may not disregard it. 
    Id. As long
    as the evidence falls within a zone
    of reasonable disagreement, the reviewing court cannot substitute its
    judgment for that of the trier-of-fact. 
    Id. at 822.
    Because Cronfel is attacking the legal sufficiency of an adverse
    finding on the issue of his negligence, he must demonstrate that there is no
    evidence to support the adverse finding. Croucher v. Croucher, 
    660 S.W.2d 41
    55, 58 (Tex. 1983); Ins. Network of Tex. v. Kloesel, 
    266 S.W.3d 456
    , 469-70 (Tex.
    App.--Corpus Christi 2008, pet. denied). In determining this no-evidence
    issue, the Court views all of the evidence in the light most favorable to the
    jury’s finding of contributory negligence, consider only the evidence and
    inferences which tend to support the jury’s finding of contributory
    negligence, and disregard all evidence and inferences to the contrary.
    Bradford v. Vento, 
    48 S.W.3d 749
    , 754 (Tex. 2001); Merrell Dow Pharms., Inc. v.
    Havner, 
    953 S.W.2d 706
    , 711 (Tex. 1997); Burroughs Wellcome Co. v. Crye, 
    907 S.W.2d 497
    , 499 (Tex. 1995); Hooper v. Smallwood, 
    270 S.W.3d 234
    (Tex.
    App.--Texarkana 2008, pet. denied).
    2.    Factual Sufficiency – Against the Great Weight and Preponderance of
    the Evidence
    When a party attacks the factual sufficiency of an adverse finding on
    an issue on which he has the burden of proof, he 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); Croucher v. Croucher, 
    660 S.W.2d 55
    , 58 (Tex. 1983). The
    reviewing court 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
    42
    the great weight and preponderance of the evidence that it is clearly wrong
    and unjust. Pool v. Ford Motor Co., 
    715 S.W.2d 629
    , 635 (Tex. 1986). In
    doing so, the court of appeals must “detail the evidence relevant to the
    issue” and “state in what regard the contrary evidence greatly outweighs
    the evidence in support of the verdict.” 
    Id. at 635.
    When reviewing a challenge to the factual sufficiency of the evidence,
    the court of appeals considers all of the evidence introduced at trial. Plas-
    Tex, Inc. v. U.S. Steel Corp., 
    772 S.W.2d 442
    , 445 (Tex. 1989). The appellate
    court, in reviewing a factually insufficient evidence challenge, must
    examine the entire record to determine if there is some probative evidence
    to support the jury’s verdict and, if there is, determine whether the
    evidence supporting the finding is so weak or the jury’s answer so contrary
    to the overwhelming weight of the evidence as to be clearly wrong and
    manifestly unjust. Garza v. Alviar, 
    395 S.W.2d 821
    , 823 (Tex. 1965).
    “Factual sufficiency [issues] concedes conflicting evidence on an
    issue, yet maintain that the evidence against the jury’s finding is so great as
    to make the finding [clearly] erroneous.” Raw Hide Oil & Gas, Inc. v. Maxus
    Expl. Co., 
    766 S.W.2d 264
    , 275 (Tex. App. 1988, writ denied). For Cronfel to
    succeed on his factual sufficiency challenge, the Court must determine
    43
    from a review of the entire record whether the jury’s findings are
    manifestly unjust and against the great weight and preponderance of the
    evidence. Traylor v. Goulding, 
    497 S.W.2d 944
    , 945 (Tex. 1973).
    3.     A Court May Not Substitute Its Judgment for that of the Jury’s
    Jurors are the sole judges of the credibility of the witnesses and the
    weight to give their testimony. Golden Eagle Archery, Inc. v. Jackson, 
    116 S.W.3d 757
    , 761 (Tex. 2003); City of 
    Keller, 168 S.W.2d at 819
    . The jury may
    choose to believe one witness and disbelieve another. Silcott v. Oglesby, 
    721 S.W.2d 290
    , 293 (Tex. 1986) (jurors alone “resolve conflicts and
    inconsistencies in the testimony of any one witness as well as in the
    testimony of different witnesses”); City of Keller v. Wilson, 
    168 S.W.3d 802
    ,
    819 (Tex. 2005). In deferring to the jury’s judgment, an appellate court
    must assume the jury decided all credibility questions in favor of the
    verdict and disbelieved testimony contrary to their decision. 
    Id. Further, in
    every circumstance in which reasonable jurors could
    resolve conflicting evidence either way, the reviewing court must presume
    the jury did so in favor of its verdict, and disregarded all conflicting
    evidence, as it is the province of the jury to resolve conflicts in the
    evidence.   Dresser Indus., Inc. v. Lee, 
    880 S.W.2d 750
    , 754 (Tex. 1993).
    44
    Furthermore, the court of appeals cannot summarily disregard
    evidence or to substitute its judgment for the jury’s. Clancy v. Zale Corp.,
    
    705 S.W.2d 820
    , 826 (Tex. App.–Dallas 1986, writ ref’d n.r.e.). A reviewing
    court does not act as a fact finder, and may not pass upon the credibility of
    witnesses or substitute its judgment for that of the trier-of-fact, even if the
    evidence would support a different result. 
    Id. Instead, the
    court of appeals
    is called on to apply a legal analysis to the evidence and avoid summary
    conclusions.
    As part of the appellate court’s review of a factual sufficiency
    challenge, appellate courts are to be mindful of the fact the jury was not
    convinced to find in favor of the complaining party by a preponderance of
    the evidence at trial. Herbert v. Herbert, 
    754 S.W.2d 141
    , 144 (Tex. 1988).
    Moreover, the reviewing court may not reverse simply because it
    concludes that “the evidence preponderates toward” an answer different
    than the one rendered by the jury. Id.; and see, M.D. Anderson Hosp. &
    Tumor Inst. v. Felter, 
    837 S.W.2d 245
    ,247 (Tex. App.–Houston [1st Dist.]
    1992, no writ).
    A jury finding may be based on inferences fairly drawn from the
    evidence. Briones v. Levine’s Dep’t Store, Inc., 
    446 S.W.2d 7
    , 10 (Tex. 1969).
    45
    In making its finding, the jury is privileged to believe all, part or none of
    the witnesses’ testimony and draw reasonable inferences from facts
    proved. Kentucky Cent. Life Ins. Co. v. Fannin, 
    575 S.W.2d 76
    , 80 (Tex. Civ.
    App.–Amarillo 1978, no writ).       The jury, as the fact finder, had the
    opportunity to view the witnesses and was the sole judge of their
    credibility and the weight to give to their testimony. Eberle v. Adams, 
    73 S.W.3d 322
    , 327 (Tex. App.–Houston [1st Dist.] 2001, pet. denied).
    In the end, the seminal inquiry for the reviewing court is after
    considering all the evidence, was the jury’s finding so contrary to the
    overwhelming weight of the evidence as to be clearly wrong and
    manifestly unjust. Cain v. Bain, 
    709 S.W.2d 175
    , 176 (Tex. 1986).
    B.   The Jury’s Negligence Finding as to Cronfel Is Supported By Legally
    and Factually Sufficient Evidence
    On similar facts, this Court upheld a remarkably similar verdict in
    McDonald v. Dankworth, 
    212 S.W.3d 336
    (Tex. App.–Austin 2006, no pet.).
    There, Diana Dankworth (“Dankworth”) rear-ended David McDonald
    (“McDonald”). As this Court explained:
    Shortly before 1:00 p.m. on Saturday, February 9,
    2002, the three were in a line of northbound traffic
    on U.S. Highway 183 in Cedar Park. [Michael]
    Mazza (“Mazza”), driving a minivan, was in front
    46
    of McDonald, who was driving a 2002 Chevrolet
    Silverado pickup. Dankworth, then sixteen, was
    behind McDonald, driving a Plymouth Sundance.
    The three vehicles were in the far-left northbound
    lane of an undivided portion of 183. The pavement
    was dry and visibility was clear.
    Initially, the line of vehicles was stopped at a red
    light at the intersection of 183 and Cypress Creek.
    There was a considerable amount of traffic, and it
    was estimated that there were as many as thirty
    other cars, or 400 feet, between Mazza’s car and the
    intersection. Mazza and Dankworth testified that
    the light turned green, and all three witnesses agree
    that traffic began to move, then stopped again, at
    which time Dankworth rear-ended McDonald.
    
    McDonald, 212 S.W.3d at 340-41
    .
    Dankworth conceded her negligence contributed to the collision, but
    contended McDonald was also responsible because he made an
    “unexpected” or “sudden” stop in front of her.       The jury found both
    Dankworth’s and McDonald’s negligence proximately caused the
    occurrence, allocated 50% of the responsibility to each, and found that
    McDonald was entitled to recover $4,549.57 in past medical expenses,
    $1,497.54 in lost wages, and nothing for physical impairment, physical pain
    and mental anguish. The trial court rendered judgment on the verdict,
    awarding McDonald $3,023.55 (50% of the damages the jury had found).
    47
    Just as in this matter, McDonald contended on appeal that (1) there
    was legally or factually insufficient evidence to support the jury’s findings
    that his negligence was a proximate cause of the collision; (2) the evidence
    conclusively established that McDonald incurred $31,348.87 in medical
    expenses as a result of the collision, or, alternatively, that the jury’s award
    of only $4,549.57 in past medical expenses is against the great weight and
    preponderance of the evidence; and (3) the jury’s zero damage findings for
    physical pain and mental anguish and physical impairment were against
    the great weight and preponderance of the evidence.
    After reviewing the testimony of Dankworth and McDonald, the
    court of appeals concluded that the evidence did not conclusively establish
    that Dankworth’s negligence was the sole proximate cause of the collision.
    
    Id. at 344.
       This Court considered other evidence (separate from that
    describing the manner in which the collision occurred), focusing on the
    events leading up to the collision and determined it was sufficient to
    present the issue of whether McDonald’s negligence caused or contributed
    to the accident. In upholding the jury’s verdict, this Court noted:
    McDonald and Mazza testified that Mazza did not
    stop suddenly or unsafely, but made what
    McDonald termed a “normal stop.” The jury could
    48
    have credited this testimony, and doing so would
    have made more probable than not that either: (1)
    McDonald stopped more suddenly and abruptly
    than was necessary to avoid hitting Mazza, cf. Rash
    v. Whisennand, 
    453 S.W.2d 353
    , 358-59 (Tex. Civ.
    App.—Houston [14th Dist.] 1970, writ ref’d n.r.e.)
    (finding fact issue regarding negligence where there
    was evidence that lead driver slammed on brakes
    one and one-half car lengths behind the next car in
    front); or (2) McDonald’s sudden stop was made
    necessary by his negligence in following too closely
    behind Mazza. Cf. Oakley v. C.E. Duke’s Wrecker
    Service, 
    557 S.W.2d 810
    , 813 (Tex. Civ. App.—
    Houston [1st Dist.] 1977, writ ref’d n.r.e.) (evidence
    that lead driver had negligently created situation
    that required her to make sudden stop).
    
    McDonald, 212 S.W.3d at 344-45
    .
    Much like in McDonald, the jury here heard testimony from which it
    could have found Cronfel was negligent (i.e., comparatively at fault) in that
    the evidence was undisputed that Cronfel was traveling at a high rate of
    speed adjacent to and in close proximity to cars parked on the side of the
    road [IV RR 179-80], that although Cronfel admitted he had a duty to keep
    a proper lookout and, as a bicyclist, to have a heightened awareness of his
    surroundings, he never saw Magnum [Id. at 180-84], that Magnum collided
    with the side of his front wheel, and that he did not take any evasive action
    to avoid the collision [Id. at 185]. Moreover, the jury heard testimony that
    49
    Cronfel was going so fast that he did not see or have time to react despite
    the fact Magnum had to travel in excess of four feet from the parked cars
    before he could have possibly made contact with the side of Cronfel’s front
    wheel. [Id. at 183-84.]
    The jury likewise heard testimony from Murray that Cronfel was in
    the middle of the road and past the parked cars when the collision with
    Magnum took place [Id. at 223-24] – yet, Cronfel (1) admitted he never saw
    Magnum and (2) did not even attempt to avoid the collision [Id. at 183-85].
    Much like in McDonald, the evidence presented to the jury supported the
    conclusion that Cronfel failed to keep a proper lookout (a duty he admitted
    to having), and that Cronfel was traveling too fast under the circumstances,
    or that due to his speed and failure to keep a proper lookout, Cronfel failed
    to take any evasive action or attempt to avoid the collision. All of which,
    either taken together or separately, is legally sufficient evidence to support
    the jury’s finding of negligence on Cronfel’s part.
    Just as Cronfel’s legal sufficiency challenge fails, his factual
    sufficiency challenge also fails.   The jury was presented with evidence
    which called Cronfel’s credibility into question and from which the jury
    could have found him untrustworthy. [See IV RR 174-77.] Further, the jury
    50
    heard testimony from Cronfel himself that he was going at such a
    breakneck speed that, despite admitting a duty to do so, failed to see
    Magnum, and because of his high rate of speed failed to take any evasive
    action to avoid colliding with Magnum. [Id. at 180-185.]
    The jury was also shown a picture of the where the collision took
    place from which it could have surmised Cronfel was negligent in failing to
    keep a proper lookout or was traveling too fast under the circumstances,
    either of which or both, were causes or contributing factors to the accident.
    In this regard, the picture plainly demonstrated that Magnum would have
    had to travel more than twenty feet before reaching the roadway – and
    then another four feet to collide with Cronfel – during which Cronfel never
    saw the dog (i.e., failed to keep a proper lookout). It is also true that the
    jury might have noted Cronfel would be high enough up so that he should
    have seen the dog or noticed it in his peripheral vision and taken evasive
    action to avoid the collision. [VII RR 7.]
    Based on the evidence presented, the jury was justified in finding that
    Cronfel’s conduct constituted negligence. Regardless, the evidence is not
    so one-sided such that the jury’s finding of comparative negligence was
    clearly wrong or manifestly unjust.
    51
    C.   The Evidence Is Factually Sufficient to Support the Jury’s Damage
    Awards
    Again, McDonald is instructive as to whether the evidence was legally
    sufficient to support the damage amounts awarded Cronfel by the jury. In
    McDonald this Court held:
    [T]he amount of damages for physical pain and
    suffering, mental anguish, and physical impairment
    are inherently subjective and uniquely within the
    jury’s province, see Dawson v. Briggs, 
    107 S.W.3d 739
    , 750-51 (Tex. App.--Fort Worth 2002, no pet.), no
    such amount can be conclusively established in the
    evidence as a matter of law, and therefore an
    appellate court cannot render judgment awarding
    such an amount. See Pilkington v. Kornell, 
    822 S.W.2d 223
    , 225 fn. 1 (Tex. App.--Dallas 1991, writ
    denied). We accordingly will construe McDonald’s
    issues concerning the jury’s zero damages awards
    for pain and suffering, mental anguish, and
    physical impairment as solely factual sufficiency
    challenges; i.e., that the zero damages awards are
    against the great weight and preponderance of the
    evidence.
    
    McDonald, 212 S.W.3d at 346
    fn. 12.
    Much like in McDonald, Murray vigorously disputed whether all of
    Cronfel’s medical treatment and expenses, purported physical pain and
    suffering, mental anguish, and alleged impairment were caused by the
    accident at issue. With respect to the evidence submitted supporting the
    52
    jury’s award of $9,345.00 in past medical expenses and $3,000.00 in future
    medical expenses, Murray presented evidence that:
    ˜     Dr. Lown did not see or begin to treat Cronfel
    until approximately two years after the
    accident involving Magnum [IV RR 90];
    ˜     Lown admitted Cronfel injured the same
    wrist in 2005 in a bicycle accident [Id. at 91];
    ˜     The same injury complained of after the 2009
    accident actually occurred because of the 2005
    accident [Id. at 92];
    ˜     A MRI taken three-and-a-half years prior to
    the 2009 accident showed that Cronfel had a
    tear in the same ligament in the same wrist
    because of the 2005 accident [Id. at 93];
    ˜     Cronfel never had surgery to repair the
    ligament tear dating back to 2005 [Id. at 95];
    ˜     Within one-month after the 2009 accident,
    Cronfel had full range of motion and his wrist
    was declared medically “normal” by Dr.
    Windler and that Cronfel did not seek any
    further treatment until ten months later,
    during which time Cronfel had resumed his
    regimen of lifting weights and other physical
    activities [Id. at 107];
    ˜     Within three months after the 2009 accident,
    Cronfel had full range of motion, no
    tenderness in the wrist, and had resumed his
    regimen of heavy weight lifting, including
    bench press, pull-ups, and push-ups [Id. at 95-
    53
    96];
    ˜   In the months after the accident, Cronfel was
    engaging in strenuous workouts to such a
    degree that his physical therapist advised him
    his routine was causing him joint pain in his
    hand and wrist [Id. at 97];
    ˜   Cronfel complained in 2012 that he injured his
    right wrist during a weight lifting session, and
    he was in another bicycle accident, going over
    the handlebars, in the same year [Id. at 98-99];
    ˜   Cronfel was engaging in physical activities in
    the latter part of 2012, such as water skiing,
    deer hunting, and his continued weight lifting
    routine – as to which his therapist again
    warned him he was overdoing it and was
    risking serious injury [Id. at 99-100];
    ˜   Cronfel was in another bicycle accident in
    August of 2012 in which he injured his right
    wrist to such a degree that he went to the
    emergency room for treatment and then to Dr.
    Lown [Id. at 102-04];
    ˜   Cronfel had a history of sporadic and
    intermittent medical treatment [Id. at 107-09];
    and
    ˜   Cronfel did not seek any further medical
    treatment for ten months after Dr. Windler
    examined him, at which time (in July of 2010)
    an x-ray showed his wrist was unchanged;
    ˜   Another nine months elapsed before Cronfel
    received an injection in March 2011;
    54
    ˜    Another five months passed before Cronfel
    saw Dr. Lown in August 2011; and
    ˜    Between July 23, 2009 and August 2011 – a
    total of 749 days – Cronfel sought treatment
    for his wrist four to five times, all while
    maintaining an active lifestyle, a strenuous
    exercise regimen, and did not miss any time
    from work.
    The evidence here parallels that in McDonald, on which this Court
    held the evidence was factually sufficient to support the jury’s damage
    awards. That is, in McDonald, this Court noted that Dankworth presented
    evidence that McDonald’s complained of injuries and pain which could
    have been caused by something which occurred prior to the rear-end
    collision, that McDonald had received medical treatment prior to the
    accident, but had not undertaken any surgical procedure to remedy his
    issue, and that Dankworth:
    also elicited evidence that McDonald had
    disregarded doctor’s orders regarding his workload
    after the collision, that he had delayed seeking
    medical treatment, and that he wore a heavy
    motorcycle helmet on his job. Finally, Dankworth
    emphasized that McDonald had not complained of
    pain at the accident scene, that his x-rays were
    normal, and that his claimed injuries had caused
    relatively little interruption to his work schedule.
    55
    A rational jury could infer from the evidence that
    the expenses associated with Dr. Fyfe and his
    suspicion of a carotid artery dissection did not
    result from the collision, but from the discovery of
    the retention cyst, a condition unrelated to the
    collision. A rational jury could further infer that
    McDonald’s own actions caused or contributed to
    his symptoms.
    McDonald, 
    212 S.W.3d 348-49
    .
    Here, Murray presented evidence the complained of injury to
    Cronfel’s right wrist existed prior to the 2009 accident, that Cronfel had not
    had surgery to correct the ligament tear, that Dr. Windler declared his wrist
    normal one-month after the accident, that Cronfel’s x-rays three-months
    after the accident showed his wrist was normal, that Cronfel had not
    missed any work and was not seeking lost wages, that the purported wrist
    injury had not interrupted his workout routine or active lifestyle, and that
    his complaints of pain may have been caused by something other than the
    2009 accident.
    As in McDonald, the evidence in the matter sub judice fails to
    conclusively establish the amount of medical expenses Cronfel sought to
    recover was incurred solely because of the 2009 accident.          Hence, the
    evidence is factually sufficient to support the amount of medical expenses
    56
    actually awarded by the jury.
    Cronfel also complains on appeal the evidence is not factually
    sufficient to support the jury’s award of damages as to his claims of
    physical pain and suffering, mental anguish, physical impairment, and
    disfigurement.   However, just as in McDonald, the jury could have
    reasonably attributed his pain and suffering, mental anguish, impairment,
    and disfigurement, if any, to something other than the accident. Again, the
    jury was keenly aware of Cronfel’s other bicycling accidents and workout
    routine, as possible explanations for any subjective complaints he had.
    In McGuffin v. Terrell, 
    732 S.W.2d 425
    (Tex. Civ. App.–Fort Worth
    1987, no writ), the Fort Worth Court of Appeals found that injuries to the
    shoulder and neck of the plaintiff who claimed they resulted from an auto
    accident were subjective injuries and affirmed a zero damages award.
    Much like this matter, the McGuffin jury heard McGuffin’s testimony as to
    the extent and severity of her purported injuries, and from the treating
    physician as to the cause of them. 
    Id. at 426.
    McGuffin also provided
    medical reports from her treating physician and expense statements of
    various physicians who examined her, as well as the records from a
    physical therapist to whom she was referred for treatment. 
    Id. 57 McGuffin
    did not complain of any injuries at the scene.                             
    Id. McGuffin’s testimony
    was that she first started to experience pain in her
    neck and shoulder several hours after the accident. 
    Id. The next
    day,
    McGuffin saw her family doctor.                
    Id. After several
    follow up visits,
    McGuffin was referred to a physical therapist for treatment of her
    subjective injuries (i.e., a sore neck and muscle pain). 
    Id. When her
    pain did not subside, McGuffin was referred to an
    orthopedic surgeon who found no objective symptoms which would cause
    the pain of which she complained. 
    Id. Thereafter, a
    neurosurgeon ran an
    Electromyography test on McGuffin.3                  
    Id. McGuffin also
    underwent a
    computerized tomography test, commonly referred to as a CAT scan,
    which much like the EMG test, is a diagnostic test which (using x-rays)
    produces a cross-sectional image, which can be interpreted by a specialist.
    
    Id. None of
    these examinations revealed any objective symptoms of injury.
    
    Id. The jury
    found Terrell negligent in causing the accident, but only
    awarded McGuffin $50.00 in medical expenses and zero damages for all
    other damage claims. 
    Id. at 426-27.
    3
    Electromyography (“EMG”) is a diagnostic procedure to assess the health of muscles and the
    nerve cells that control them (motor neurons). Motor neurons transmit electrical signals which
    cause the muscles to contract. An EMG translates these signals into graphs, sounds or numerical
    values which a specialist interprets. See MAYO CLINIC WEBSITE.
    58
    Just like Cronfel, McGuffin argued on appeal the zero-damage
    awards as to pain and suffering, mental anguish, and impairment were
    against the great weight and preponderance of the evidence. 
    Id. at 427.
    The Fort Worth Court of Appeals disagreed, noting McGuffin’s complaints
    were subjective, which the jury was free to disbelieve:
    [T]he opinions [relied on by McGuffin] recite that
    examination of the parties complaining of injury
    revealed objective symptoms such as fracture,
    laceration, bruise, hematoma or muscle spasm. In
    the present case, there were no findings of objective
    symptoms until approximately three weeks after
    the accident, when after several office visits, Dr.
    Murphy noted muscle spasm. All of the reports of
    other examining physicians indicated no objective
    symptoms were present. . . .
    The jury must have also believed that her injury did
    not require all of the examinations and treatment
    received by [McGuffin]. The jury was free to
    disbelieve, and apparently did disbelieve, Dr.
    Murphy’s opinion that the treatment and
    medication received by [McGuffin] was necessary
    for the injury sustained. Un-contradicted testimony
    of expert witnesses must be taken as true insofar as
    it establishes facts, however, opinions as to
    deductions from those facts are not binding on the
    jury. Opinion testimony does not establish material
    facts as a matter of law. The jury was accorded the
    privilege of considering medical reports indicating
    no objective symptoms and were not compelled to
    accept Dr. Murphy’s opinion deductions. The jury
    apparently did not believe [McGuffin’s] testimony
    59
    as to the severity of her injuries nor her alleged pain
    and disability.      The jury may disbelieve an
    interested witness even if un-contradicted.
    Substantially all of the evidence concerning
    [McGuffin’s] pain and suffering and the extent of
    her alleged injuries came from [McGuffin] or from
    Dr. Murphy to whom she had related her alleged
    pain and suffering. The jury had the duty to
    consider this testimony, the reports of medical
    findings and diagnosis by others who examined
    [McGuffin]. The jury likewise could accept or reject
    any part or all of the evidence and reconcile any
    inconsistencies therein.       Apparently, the jury
    determined that the findings of some of the
    examining physicians were inconsistent with
    [McGuffin’s] complaints and the deduction opinion
    made by Dr. Murphy. The jury resolved these
    inconsistencies against [McGuffin]. The jury had a
    duty to fix an amount it believed was reasonable
    and necessary for the treatment of any injury
    received by [McGuffin] which it may have found
    resulted from the collision. Apparently the jury
    determined the extent of any injury [McGuffin] may
    have received from the collision was quite minimal
    and that only the sum of $ 50.00 was a reasonable
    and necessary amount for the examination and
    treatment of [McGuffin] for such injury. If the
    opinion of Dr. Murphy did not comport with the
    jury’s idea of sound logic, it had the right to so find.
    
    Id. at 428
    (internal citations omitted).
    Much like in McGuffin, the only evidence concerning Cronfel’s pain
    and suffering came from Cronfel (or Lown to whom Cronfel related his
    alleged injuries and pain and suffering). Thus, just as in McGuffin, the jury
    60
    was “free to disbelieve, and apparently did disbelieve,” Cronfel’s
    complaints or whether his complaints were caused by the accident versus
    something else to which the jury heard evidence.
    Another instructive case is Luna v. Torres, 2009 Tex. App. LEXIS 6972
    (Tex. App.–Corpus Christi August 31, 2009, no pet.), wherein the court of
    appeals found the jury’s zero-damage award was not against the great
    weight and preponderance of the evidence.
    The police report written at the collision site
    indicated no injuries to either Cesar or Luna. No
    ambulance was requested, and neither appellant
    went to a hospital at any time. The alleged
    whiplash type injuries were at most soft tissue
    injuries resulting in negative x-rays. No work
    restrictions were given, and no prescription pain
    medications were either prescribed or taken.
    Neither appellant missed time from work. No
    doctor testified to any injury or objective medical
    findings. . . . .
    The mere fact of injury does not prove compensable
    pain and suffering or impairment. A jury may
    award “zero damages” when the injuries sustained
    are subjective in nature or there is both subjective
    and objective evidence of damages. The evidence
    concerning whether appellants suffered pain as a
    result of the accident is almost entirely subjective,
    primarily based on appellants’ own personal
    reports of pain to doctors, and their own testimony.
    61
    The un-contradicted testimony of an interested
    witness cannot be considered as doing more than
    raising an issue of fact unless that testimony is
    clear, direct, and positive, and there are no
    circumstances in evidence tending to discredit or
    impeach such testimony.
    
    Id. at *12-13
    (emphasis added; internal citations omitted).
    Texas jurisprudence has long held that when the evidence is
    controverted or the injury is predominantly subjective, Texas courts must
    uphold jury findings of no damages despite a finding of liability and
    evidence of injury and damages. E.g., Crow v. Burnett, 
    951 S.W.2d 894
    , 899
    (Tex. App.–Waco 1997, writ denied); Barrajas v. VIA Metro. Transit Auth.,
    
    945 S.W.2d 207
    , 209-10 (Tex. App.–San Antonio 1997, no writ); Hyler v.
    Boytor, 
    823 S.W.2d 425
    , 427 (Tex. App.–Houston [1st Dist.] 1992, no writ);
    McGuffin v. Terrell, 
    732 S.W.2d 425
    , 428-29 (Tex. App.–Fort Worth 1987, no
    writ).
    Moreover, where the evidence of pain is conflicting, scant, or more
    subjective than objective, a jury’s zero-damages finding is not against the
    great weight and preponderance of the evidence. Gonzalez v. Wal-Mart
    Stores, Inc., 
    143 S.W.3d 118
    , 123 (Tex. App.–San Antonio 2004, no pet.); see
    also Barrios v. King Fisher Marine Serv., L.P., 2010 Tex. App. LEXIS 3955 *10
    62
    (Tex. App.–Corpus Christi May 27, 2010, pet. denied).
    Clearly, the jury either did not believe all of Cronfel’s complaints of
    pain and suffering (and other “injuries”), or was not convinced they were
    caused by the 2009 accident. There was significant evidence Cronfel had
    injured the same wrist on at least one occasion prior to the 2009 incident.
    The jury also heard evidence Cronfel may have injured his wrist during his
    workout routine and weightlifting regimen. All of these possible sources
    are wholly unrelated to the collision with Murray’s dog, Magnum.
    Additionally, Cronfel continued to engage in activities which were or could
    have been the cause of his physical complaints (e.g., water skiing, bicycling,
    and weightlifting). In sum, the jury’s verdict was unquestionably within
    the law and based on the evidence presented.
    D.   The Trial Court’s Discovery Sanction Was Not an Abuse of Discretion
    Cronfel appears to argue on appeal that he should not have been
    sanctioned ($5,000.00) for three reasons: (1) he complied with what he
    thought the order from the trial court should have been – and not what the
    trial court actually ordered; (2) it was based on his refusal to disclose
    privileged mental health records – which were not even requested by
    Murray; and (3) $5,000.00 was excessive and not explained to Cronfel’s
    63
    satisfaction.
    All of Cronfel’s contentions are misguided and fail when viewed in
    the light of the entire history of the litigation. Specifically, the Court must
    take into consideration the multiple motions to compel, multiple hearings,
    Cronfel’s refusal to comply with two separate orders, Cronfel’s unilateral
    change to the medical authorization he was ordered to sign, and his
    mischaracterization of the medical records being sought.
    The inherent powers of a trial court are those which it may call upon
    to aid in the exercise of its jurisdiction, in the administration of justice, in
    the preservation of its independence and integrity, and to prevent any
    significant interference with the traditional core functions of Texas courts.
    Public Util. Comm’n v. Cofer, 
    754 S.W.2d 121
    , 124 (Tex. 1988); Kutch v. Del
    Mar College, 
    831 S.W.2d 506
    , 510 (Tex. App.–Corpus Christi 1992, no writ).
    “By rule, statute, and their own inherent power, trial courts have
    broad authority to sanction litigants for specific misconduct.” In re Does 1-
    10, 
    242 S.W.3d 805
    , 817 (Tex. App.–Texarkana 2007, no pet.); In re N.R.C., 
    94 S.W.3d 799
    , 807 fn. 4 (Tex. App.–Houston [14th Dist.] 2002, pet. denied); see
    also Onstad v. Wright, 
    54 S.W.3d 799
    , 804 (Tex. App.–Texarkana 2001, pet.
    denied).    A trial court has inherent power to sanction to the extent
    64
    necessary to deter, alleviate, and counteract bad faith abuse of the judicial
    process. In re Bennett, 
    960 S.W.2d 35
    , 40 (Tex. 1997); Dallas County Constable
    v. Kingvision Pay-Per-View, 
    219 S.W.3d 602
    , 610 (Tex. App.–Dallas 2007, no
    pet.). To support the entry of sanctions under a court’s inherent powers,
    the trial judge must find that the party caused significant interference with
    the legitimate exercise of the traditional core functions of the court.
    Eichelberger v. Eichelberger, 
    582 S.W.2d 395
    , 398 (Tex. 1979); IFC Credit Corp.
    v. Specialty Optical Sys., 
    252 S.W.3d 761
    , 772 (Tex. App.–Dallas 2008, pet.
    denied).
    The core functions of the judiciary are to hear evidence, decide issues
    of fact raised by pleadings, decide questions of law, enter final judgments,
    and enforce those judgments. Armadillo Bail Bonds v. State, 
    802 S.W.2d 237
    ,
    239-40 (Tex. Crim. App. 1990); Finlan v. Peavy, 
    205 S.W.3d 647
    , 652-53 (Tex.
    App.–Waco 2006, no pet.). Additionally, a trial court’s core functions
    include “the management of its docket and the issuance and enforcement of
    its orders.” See In re K.A.R., 
    171 S.W.3d 705
    , 715 (Tex. App.–d Houston
    [14th Dist.] 2005, no pet.) (emphasis added).
    The review of a trial court’s sanction based on its inherent power is
    conducted under an abuse of discretion standard. 
    Kutch, 831 S.W.2d at 512
    .
    65
    Moreover, the reviewing court must review the entire record and view the
    evidence most favorably to the trial court’s ruling. Id.; Vaughn v. Tex.
    Employment Comm’n, 
    792 S.W.2d 139
    , 143 (Tex. App.–Houston [1st Dist.]
    1990, no writ); see also Lawrence v. Kohl, 
    853 S.W.2d 697
    , 700-701 (Tex. App.–
    Houston [1st Dist.] 1993, no pet.).
    Furthermore, a court may impose sanctions for a party’s failure to
    fully comply with a discovery request. See generally TEX. R. CIV. P. 215. If
    the court finds a party is abusing the discovery process in seeking, making
    or resisting discovery, the court may impose an “appropriate” sanction.
    TEX. R. CIV. P. 215.3. The Texas Supreme Court has stated that this rule
    gives “trial courts broad authority to curb [discovery] abuse.” Braden v.
    Downey, 
    811 S.W.2d 922
    , 930 (Tex. 1991). There are three purposes for
    discovery sanctions: (1) to secure compliance with discovery rules; (2) to
    deter other litigants from similar misconduct; and (3) to punish violators.
    Chrysler Corp. v. Blackmon, 
    841 S.W.2d 844
    , 849 (Tex. 1992).
    Of course, a sanction cannot be excessive and should not be assessed
    without appropriate guidelines. See Low v. Henry, 
    221 S.W.3d 609
    , 620 (Tex.
    2007) (discussing limitations on sanctions under Texas Rule of Civil
    Procedure 215 and chapter 10 of the Texas Civil Practice and Remedies
    66
    Code); Greiner v. Jameson, 
    865 S.W.2d 493
    , 499 (Tex. App.–Dallas 1993, writ
    denied) (noting that the rule 215 requirement that sanctions be just also
    applies to the court’s inherent power to sanction); see also State v. PR Invs.,
    
    180 S.W.3d 654
    , 673 (Tex. App.–Houston [14th Dist.] 2005), aff’d, 
    251 S.W.3d 472
    (Tex. 2008).
    In order for a sanction to be just, there must be a direct relationship
    between the offensive conduct and the sanction imposed; and the sanction
    imposed must not be excessive. TransAmerican v. Powell, 
    811 S.W.2d 913
    ,
    916 (Tex. 1991). In other words, the punishment should fit the crime; the
    sanction must be directed against the abuse and toward remedying the
    prejudice caused to the innocent party. Thompson v. Davis, 
    901 S.W.2d 939
    ,
    940 (Tex. 1995).
    On review, the appellate court must recognize that, in assessing
    sanctions, the trial court is entitled to consider the entire course of the
    litigation. Scott Bader, Inc. v. Sandstone Prods., 
    248 S.W.3d 802
    , 814 (Tex.
    App.–Houston [1st Dist.] 2008, no pet.); Broesche v. Jacobson, 
    218 S.W.3d 267
    ,
    (Tex. App.–Houston [14th Dist.] 2007, pet. denied); see Berry-Parks Rental
    Equip. Co. v. Sinsheimer, 
    842 S.W.2d 754
    , 757 (Tex. App.–Houston [1st Dist.]
    1992, no writ).
    67
    Here, the record is replete with evidence of Murray’s efforts to obtain
    the medical records (and specifically of those of Lown) needed to defend
    himself against Cronfel’s allegations and the damages Cronfel sought to
    have assessed against him.     Beginning with simple interrogatories and
    requests for production, this discovery tale unnecessarily mushroomed
    into depositions on written questions, numerous motions to compel,
    broken agreements to produce the records, multiple hearings, and two
    court orders – both of which Cronfel failed to follow. To suggest the trial
    court abused its discretion in imposing a $5,000.00 sanction – at the end of
    this trail of waste of resources (on the part of Murray and the trial court) –
    is wholly without merit.
    CONCLUSION AND PRAYER
    For the foregoing reasons, Murray asks the Court to affirm the trial
    court’s final judgment, as well as its discovery sanction against Cronfel, in
    all respects and for such further and other relief to which he is justly
    entitled.
    68
    Respectfully submitted,
    WALTERS, BALIDO & CRAIN, L.L.P.
    ___/s/ Gregory R. Ave_________
    GREGORY R. AVE
    State Bar No. 01448900
    JAY R. HARRIS
    State Bar No. 00793907
    Meadow Park Tower, Suite 1500
    10440 North Central Expressway
    Dallas, Texas 75231
    Telephone Number (214) 347-8310
    Facsimile Number (214) 347-8311
    greg.ave@wbclawfirm.com
    jay.harris@wbclawfirm.com
    ATTORNEYS FOR APPELLEE
    PATRICK C. MURRAY
    69
    CERTIFICATE OF COMPLIANCE
    Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the
    undersigned certifies that this brief complies with the type-volume
    limitations of Texas Rule of Appellate Procedure 9.4(i)(2)(B).
    Exclusive of the exempt portions identified by Texas Rule of
    Appellate Procedure 9.4(i)(1), this brief contains 13,054 words, including
    footnotes, headings, and quotations, and this certificate and the certificate
    of service which follows. In providing this word-count, the undersigned is
    relying the word count generated by the computer program used to
    prepare the motion.
    This brief has been prepared in proportionally spaced type, 14-point
    text, and in Book Antiqua font, using the computer program known as
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    Acknowledged: November 13, 2015.
    __/s/ Gregory R. Ave__
    Gregory R. Ave
    70
    CERTIFICATE OF SERVICE
    On November 13, 2015, a true and correct copy of the foregoing was
    sent to all parties and counsel of record in accordance with the Texas Rules
    of Civil Procedure:
    Paul T. Morin, Esquire                               Via E-Serve
    Paul T. Morin, P.C.
    503 West 14th Street
    Austin, Texas 78701
    Guillermo Ochoa-Cronfel, Esquire                     Via E-Serve
    The Cronfel Law Firm
    2700 Bee Caves Road, Suite 103
    Austin, Texas 78746
    ATTORNEYS FOR APPELLANT
    GUILLERMO OCHOA-CRONFEL
    __/s/ Gregory R. Ave___
    Gregory R. Ave
    71