Arturo Rodriguez v. Browning-Ferris Industries, Inc., Browning-Ferris Services, Inc., AKA, BFI, Inc. ( 2007 )


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  •                                  NO. 07-06-0368-CV
    IN THE COURT OF APPEALS
    FOR THE SEVENTH DISTRICT OF TEXAS
    AT AMARILLO
    PANEL C
    JULY 24, 2007
    ______________________________
    ARTURO RODRIGUEZ, APPELLANT
    V.
    BROWNING-FERRIS INDUSTRIES, INC.,
    BROWNING-FERRIS SERVICES, INC., A/K/A BFI, INC., APPELLEES
    _________________________________
    FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;
    NO. CI-05H-109; HONORABLE ROLAND SAUL, JUDGE
    _______________________________
    Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
    MEMORANDUM OPINION
    Appellant, Arturo Rodriguez, appeals the judgment entered in this cause following
    a jury verdict rendered against Appellee, BFI Waste Services of Texas, L.P. (hereinafter
    “BFI”),1 for personal injuries. A jury found both parties were equally negligent in causing
    Rodriguez’s injuries and awarded Rodriguez $20,000 for lost wages, but nothing for
    physical pain, mental anguish, or medical expenses. Presenting two issues, Rodriguez
    contends the jury’s failure to award damages for (1) physical pain, mental anguish, and (2)
    medical expenses was against the great weight and preponderance of the evidence. We
    affirm.
    Background Facts
    Rodriguez was injured on September 2, 2003, when a lid on a dumpster owned by
    BFI struck him in the head as he was emptying trash. The following day, Rodriguez went
    to the emergency room complaining of headaches and neck pain. After an examination
    and x-rays, the emergency room physician concluded that he was suffering from a head
    contusion and neck strain. On September 5, Rodriguez followed up with his primary care
    physician, Dr. Howard Johnson. Dr. Johnson concurred with the initial diagnosis and
    prescribed muscle relaxants for his neck. He then released Rodriguez to resume his
    normal activities.
    1
    Originally, Rodriguez sued Browning-Ferris Industries, Inc. and Browning-Ferris
    Services, Inc., a/k/a BFI, Inc. In the Original Answer and the Amended Original Answer
    the defendant pointed out that the proper defendant was BFI Waste Services of Texas,
    L.P. Thereafter, Rodriguez amended his petition to name BFI Waste Services of Texas,
    L.P. as the only defendant. Despite requesting that the case be re-styled, Rodriguez never
    obtained an order from the trial court granting that request. As a consequence, the
    incorrect style of the case has remained. The trial court clerk, the notice of appeal, and the
    Clerk of this Court have each carried the style of the case as noted hereinabove.
    2
    Four days later, Rodriguez returned to the doctor complaining of numbness and
    tingling in his left arm. This time, Dr. Johnson ordered an MRI of Rodriguez’s cervical
    spine. The MRI results revealed signs of degenerative disk disease and a herniated disk
    asserting pressure on the nerves in his neck. Based on the MRI, Dr. Johnson referred
    Rodriguez to Dr. Luiz Cesar, a neurosurgeon in Amarillo. Dr. Cesar reviewed the MRI
    results on October 8, 2003. He immediately confirmed the disk herniation and observed
    other signs of “chronic wear and tear.” He also observed narrowing in the spinal canal. To
    alleviate Rodriguez’s problems, he recommended surgery to repair the herniated disk and
    alleviate the compression on the spinal cord. The surgery was performed on November
    3, and Rodriguez was discharged three days later. Despite the surgery, Rodriguez was
    left with a permanent decrease in mobility in his neck.
    Rodriguez subsequently sued BFI for negligence alleging that it failed to maintain
    or repair the dumpster lid and failed to warn him of a potentially dangerous situation. At
    the conclusion of the evidence, the jury attributed both parties 50 percent of the negligence
    and awarded a total of $20,000 for lost wages. The jury awarded zero damages for past
    and future physical pain and mental anguish, past and future medical care, and future lost
    3
    wages.2 Following a judgment on the verdict, the trial court denied Rodriguez’s motion for
    new trial and Rodriguez filed this appeal.
    2
    In relevant part, the charge read as follows:
    Question Three
    What sum of money, if paid now in cash would fairly and reasonably
    compensate Arturo Rodriguez for his injuries, if any, that resulted from the
    occurrence in question?
    Consider the elements of damages listed below and none other. Consider
    each element separately. Do not include damages for one element and (sic)
    any other element. Do not include interest on any amount of damages you
    may find.
    Do not reduce the amounts, if any, in your answers because of the
    negligence, if any, of Arturo Rodriguez.
    Answer separately, in dollars and cents, for damages, if any.
    a.   Physical pain and mental anguish sustained in the past.
    ANSWER: 0
    b.        Physical pain and mental anguish that, in reasonable
    probability, Arturo Rodriguez will sustain in the future.
    ANSWER: 0
    c.        Medical care in the past.
    ANSWER: 0
    d.        Medical care that, in reasonable probability, Arturo Rodriguez
    will sustain in the future.
    ANSWER: 0
    e.        Lost wages sustained in the past.
    ANSWER: $20,000
    f.        Future wages that, in reasonable probability, Arturo Rodriguez
    will sustain in the future.
    ANSWER: 0
    4
    By his issues, Rodriguez claims that the jury erroneously disregarded the objective
    evidence of his injuries and the uncontroverted testimony that he experienced pain as a
    result thereof. He also claims the jury erred by disregarding the evidence of medical
    expenses attributable to the accident in question. Therefore, Rodriguez maintains that the
    jury’s failure to award him damages for physical pain, mental anguish, and medical
    expenses was against the great weight and preponderance of the evidence. We disagree.
    Standard of Review
    A party attacking the sufficiency of an adverse jury finding on which it had the
    burden of proof must demonstrate that the finding was against the great weight and
    preponderance of the evidence. Dow Chemical Co. v. Francis, 
    46 S.W.3d 237
    , 242 (Tex.
    2001); Pool v. Ford Motor Co., 
    715 S.W.2d 629
    , 635 (Tex. 1986). We must consider and
    weigh all of the evidence, not just the evidence which supports the verdict. Maritime
    Overseas Corp. v. Ellis, 
    971 S.W.2d 402
    , 406-07 (Tex. 1998). At the same time, we must
    be cognizant of the fact that the jury is the sole judge of the credibility of witnesses and the
    weight to be given their testimony. Golden Eagle Archery, Inc. v. Jackson, 
    116 S.W.3d 757
    , 761 (Tex. 2003). We may set aside the verdict only if it is so contrary to the
    overwhelming weight of the evidence that it is clearly wrong and manifestly unjust. Cain v.
    Bain, 
    709 S.W.2d 175
    , 176 (Tex. 1986).
    5
    Analysis
    Reviewing the evidence in the present case, the record clearly reflects that
    Rodriguez suffered some injury when he was struck by the dumpster lid. There is
    conflicting evidence, however, as to whether this injury resulted in the damages sought at
    trial because Rodriguez did not attempt to marshal his evidence or his arguments in such
    a way as to differentiate damages resulting from this injury and damages resulting from a
    preexisting condition. The emergency room records indicate that Rodriguez suffered a
    head contusion and neck strain. This diagnosis was confirmed by Dr. Johnson. But when
    Rodriguez complained of numbness and tingling in his left arm, an MRI revealed multiple
    signs of degenerative disk disease in addition to a herniated disk. Both Dr. Johnson and
    Dr. Cesar testified that such degenerative changes occur naturally over time as part of the
    aging process.3 Both also stated that without having examined Rodriguez prior to the
    injury, there was no way of ascertaining whether the herniated disk was caused by the
    impact of the dumpster lid, although such an injury was conceivable. Dr. Cesar also
    remarked that the narrowing of Rodriguez’s spinal canal was probably “of congenital
    nature.”
    There is also evidence that Rodriguez had previously sought medical treatment for
    complications similar to those alleged to have been caused by the falling dumpster lid. Dr.
    Johnson testified that Rodriguez had come to his office prior to September 2003
    3
    Dr. Cesar’s testimony at trial was by video deposition.
    6
    complaining of pain in his right shoulder and numbness in his hand. Rodriguez was
    subsequently diagnosed with osteoarthritis. Dr. Johnson also testified, and Rodriguez
    acknowledged, that he occasionally suffered from bouts of back pain, sleep apnea,
    dizziness, and headaches. Rodriguez, however, claims that none of these ailments
    prevented him from performing his employment duties, and he was never restricted from
    working.
    “Zero Damages Rule”
    To further support his position, Rodriguez implicitly asks us to invoke the legal
    principle commonly referred to as the “zero damages rule.” This “rule” provides that when
    there is objective evidence of an injury, a jury’s failure to award some monetary amount for
    each element of damages proved is per se against the great weight and preponderance
    of the evidence.4 See generally W. Wendell Hall, Standards of Review in Texas, 38 St.
    Mary’s L.J. 217, 217-18 (2006). However, this rule, and its various applications, has been
    repeatedly criticized for being inconsistent with the standard of review articulated in 
    Pool, 715 S.W.2d at 635
    . See, e.g., Golden Eagle 
    Archery, 116 S.W.3d at 777
    (O’Neill, J.,
    concurring) (suggesting that the Court should “expressly disavow it”); Davis v. Davison, 
    905 S.W.2d 789
    , 792 (Tex.App.–Beaumont 1995, no writ) (Stover, J., concurring); Srite v.
    4
    The “zero damages rule” is not a rule of damages. Rather, it is a common name
    for a challenge to negative jury findings as to damages based on the great weight and
    preponderance of the evidence. Perez v. Lopez, 
    74 S.W.3d 60
    , 65 n. 1 (Tex.App.–El Paso
    2002, no pet.); Estrada v. Dillon, 
    23 S.W.3d 422
    , 426 (Tex.App.–Amarillo 2000), reversed
    in part on other grounds, 
    44 S.W.3d 558
    (Tex. 2001).
    7
    Owens-Illinois, Inc., 
    870 S.W.2d 556
    , 558 (Tex.App.–Houston [1st Dist.] 1993), rev’d in part
    on other grounds, 
    897 S.W.2d 765
    (Tex. 1995). Consequently, strict application of the rule
    has been disavowed or expressly rejected by a majority of the intermediate appellate
    courts, including this Court.    E.g., McDonald v. Dankworth, 
    212 S.W.3d 336
    , 349
    (Tex.App.–Austin 2006, no pet.); Gonzalez v. Wal-Mart Stores, Inc., 
    143 S.W.3d 118
    , 124
    (Tex.App.–San Antonio 2004, no pet.); Dunn v. Bank-Tec South, 
    134 S.W.3d 315
    , 325-26
    (Tex.App.–Amarillo 2003, no pet.); Perez v. Lopez, 
    74 S.W.3d 60
    , 65 (Tex.App.–El Paso
    2002, no pet.); Waltrip v. Bilbon Corp., 
    38 S.W.3d 873
    , 880 n.2 (Tex.App.–Beaumont 2001,
    pet. denied); Water Doctors Intern., Inc. v. Lux, 
    957 S.W.2d 869
    , 870 n.1 (Tex.App.–Tyler
    1997, no pet.); Pilkington v. Kornell, 
    822 S.W.2d 223
    , 225 (Tex.App.–Dallas 1991, writ
    denied). Despite Rodriguez’s contentions, the relevant inquiry remains simply whether the
    verdict is so contrary to the overwhelming weight of the evidence that it is clearly wrong and
    manifestly unjust. See Golden Eagle 
    Archery, 116 S.W.3d at 761
    .
    Conclusion
    Here, although there is objective evidence of injury, the jury simply may not have
    believed that Rodriguez’s pain and suffering were due to the occurrence in question, but
    were instead due to his preexisting condition. As previously stated, the jury is the sole
    judge of the credibility of the witnesses and it is within its province to weigh the evidence
    and resolve any conflicts. The jury heard testimony from multiple witnesses and it was its
    function to accept or reject any, part, or all of the witnesses’ testimony and the evidence.
    8
    See McGalliard v. Kuhlmann, 
    722 S.W.2d 694
    , 697 (Tex. 1986). Considering that neither
    doctor could testify to a sole cause of Rodriguez’s neck injury, we cannot say that the jury’s
    failure to award damages for physical pain and mental anguish was so contrary to the great
    weight and preponderance of the evidence as to be manifestly unjust. The same analysis
    applies to the jury’s failure to award damages for past medical expenses. Therefore,
    Rodriguez’s issues are overruled.
    Accordingly, the trial court’s judgment is affirmed.
    Patrick A. Pirtle
    Justice
    9