Bobbie Gill v. Robert Slovak ( 2005 )

                                    NUMBER 13-02-582-CV

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

BOBBIE GILL,                                                                                   Appellant,

                                                             v.

ROBERT SLOVAK,                                                                            Appellee.

                On appeal from the County Court at Law No.4

                                        of Nueces County, Texas.

              MEMORANDUM OPINION ON MOTION FOR REHEARING

     Before Chief Justice Valdez and Justices Rodriguez and Garza

      Opinion by Chief Justice Valdez  

Appellant, Bobbie Gill, appeals from the verdict in a jury trial resulting from a car accident caused by appellee, Robert Slovak.  We grant the motion for rehearing filed by appellant, withdraw our previous opinion dated December 22, 2004, and substitute the following as the opinion of this Court.  We affirm the judgment of the trial court.

Background

Gill and Slovak were involved in a two-car collision in 1996.  Slovak ran a red light at an intersection and his car collided with Gill=s car.  Gill then sued Slovak for negligence and claimed that the accident had aggravated her pre-existing neck and back injuries so that she was required to undergo surgery and incur significant medical expenses as well as suffer ongoing physical impairment. 

Before trial, Gill filed a Robinson challenge to exclude the testimony of Slovak=s accident-reconstruction expert, Thomas McNish, M.D.  The trial court held a pre-trial Robinson hearing and issued a written order overruling Gill=s objections to Dr. McNish who was then able to testify at trial as to his findings.

At trial, Slovak stipulated to his liability for negligence in the accident.  The jury was charged only with determining the proper amount of damages to award Gill for her injuries.  The jury returned a verdict awarding total damages of $29,218 to Gill. 

Gill filed a motion for new trial, asserting that the damage findings were inadequate.  Her motion was overruled, and she appealed the findings to this Court.  On appeal, Gill asserts that (1) the testimony of Slovak=s accident-reconstruction expert was inadmissible expert testimony under Robinson, (2) Dr. McNish=s testimony was also incompetent and constituted Ano evidence@ under Havner, (3) there was legally insufficient evidence to support the jury=s damage award, and (4) the trial court erred in refusing to allow cross-examination of Dr. McNish regarding bias. 

Robinson Challenge

By her first issue, Gill argues that Dr. McNish=s testimony was inadmissible because it failed to meet the reliability requirements of Robinson. 

A trial court=s decision to admit or deny evidence, including the testimony of expert witnesses, is reviewed on appeal for an abuse of discretion.  Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex. 2002).

For an expert's testimony to be admissible under the rules of evidence and the Robinson standard, (1) the expert must be qualified, and the expert's opinion must be (2) relevant to the issues in the case and (3) based upon a reliable foundation. Tex. R. Evid. 702; Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 720 (Tex. 1998); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). A party preserves her Robinson challenge to the evidence by raising it at the trial level or in a pre-trial motion.  See Guadalupe‑Blanco River Auth. v. Kraft, 77 S.W.3d 805, 807 (Tex. 2002); Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998). However, once the trial court makes a ruling, a party may not then introduce the complained-of evidence herself and still maintain on appeal that she has preserved her Robinson challenge to admissibility.  See Southwestern Elec. Power Co. v. Burlington N. R.R., 966 S.W.2d 467, 473 (Tex. 1998); McInnes v. Yamaha Motor Corp., U.S.A., 673 S.W.2d 185, 188 (Tex. 1984) (appellant cannot complain of admission of improper evidence introduced by himself).  Furthermore, when a party elicits testimony from a witness, that party typically may not later complain of the admission of the unfavorable testimony.  See Varel Mfg. Co. v. Acetylene Oxygen Co., 990 S.W.2d 486, 499 (Tex. App.BCorpus Christi 1999, no pet.).  This rule also holds true in the context of expert witnesses.  See Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194, 208 (Tex. App.BTexarkana 2000, pet. denied) (ABecause the Huckabys permitted [the expert] testimony about the very matter of accident reconstruction about which they now complain on appeal, they have waived any alleged error.@).

In the present case, Gill called Dr. McNish to testify in her case in chief.  Through counsel, Gill introduced the very expert testimony on the topic of accident reconstruction that she now seeks to have stricken.  Although Dr. McNish was originally hired as Slovak=s expert, he was called on direct examination by Gill, as Slovak=s counsel pointed out at trial: A[W]e=ve got a crazy situation here because [Gill=s counsel]=s called my witness as an adverse witness, okay.  So he=s called my witness B he subpoenaed him from San Antonio and asked him to come down here, okay.  This is not as if I=m on direct examination . . . .@           Although Gill properly preserved her Robinson objection at the pre-trial hearing, she then waived this objection by directly examining the witness herself.  See McInnes, 673 S.W.2d at 188.  Accordingly, we consider this complaint waived and her first issue overruled.

Havner Challenge

By her second issue, Gill argues that the trial court erred in refusing to find that Dr. McNish=s expert testimony was tantamount to Ano evidence@ and incompetent under Havner.

Under Havner, a party may complain on appeal that scientific evidence is unreliable and constitutes no evidence to support a judgment.  See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).  When reviewing a no‑evidence challenge, we usually "view the evidence in a light that tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary."  Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001). 

Havner recognizes that a no evidence complaint may be sustained when the record shows one of the following:  (a) a complete absence of a vital fact; (b) the reviewing court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more that a mere scintilla; or (d) the evidence establishes conclusively the opposite of the vital fact.  See id. at 711.  In determining whether an expert's testimony constitutes no evidence or some evidence under Havner, however, "an expert's bare opinion will not suffice" and "the substance of the testimony must be considered." Havner, 953 S.W.2d at 711.  Furthermore, "the underlying data should be independently evaluated in determining if the opinion itself is reliable."  Id. at 713; see Guadalupe‑Blanco River Auth. v. Kraft, 77 S.W.3d 805, 808 (Tex. 2002).  If the expert's testimony is not reliable, it is not evidence.  Havner, 953 S.W.2d at 713. 

Slovak asserts on appeal that because Gill elicited the complained-of testimony from Dr. McNish, she has waived any error relating to her Havner no-evidence objection in addition to having waived her Robinson-related error.  We disagree.  The Texas Supreme Court has clarified the distinction between a Havner no-evidence challenge to the testimony of an expert based on speculative or conclusory testimony elicited at trial, for which no trial court objection is necessary, and a Robinson complaint as to the methodology or qualifications of the expert which must be objected to before or during trial to preserve error. See Coastal Transp. Co., Inc. v. Crown Central Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004).  When a party challenges the testimony of an expert not under Robinson but instead for its substantive value, Athen a party may challenge the legal sufficiency of the evidence even in the absence of any objection to its admissibility.@  Id.  Thus, despite our conclusion that she has waived any Robinson-related error from Dr. McNish=s testimony, Gill may still object to the substance of the evidence as being legally insufficient to support the verdict.

Turning to the no evidence review of Dr. McNish=s testimony, we see that Dr. McNish testified that he conducted an injury causation analysis based on physics and biomechanics in order to determine what forces were exerted on Gill=s body during the accident and what bodily injuries that impact may have caused.  Dr. McNish utilized the following underlying data:  (1) photographs of the damaged vehicles; (2) information from the Motor Vehicle Manufacturers= Association on the weight, center of gravity, dimensions, and other properties of the vehicles; (3) testimony of Gill regarding the circumstances of the accident; (4) testimony of Slovak regarding the circumstances of the accident; (5) the police accident report; (6) aerial photographs of the accident site; (7) diagrams of the intersection; (8) repair estimates on both Gill and Slovak=s vehicles; (9) the depositions of Gill=s various physicians from before and after the accident; and (10) Gill=s medical records from both before and after the accident.  Dr. McNish used the data gleaned from these sources to create numerical data that was then inputted into a computer program that simulated the accident and predicted the resulting injuries. 

Based on his evaluation of the information available and covering any informational gaps by inserting estimates that would be most favorable to Gill, Dr. McNish testified that he believed the forces and direction of the forces involved in this accident could not have caused the condition that led to Gill=s surgeries after the accident.  He concluded instead that the forces involved in the accident would only have caused minor bruising and muscle strain.  Dr. McNish explained each of the estimates he made and the various assumptions he made when developing his estimates, all of which the jury was able to weigh or reject. See Barrajas v. Via Metropolitan Transit Auth., 945 S.W.2d 207, 209 (Tex. App.BSan Antonio 1997, no writ) (A[A] jury may choose to be guided by expert testimony . . . but it is not bound by it [and] the jury may disbelieve a witness, including a physician, even though his testimony is not contradicted.@).

Gill argues that Dr. McNish did not properly account for her preexisting back and neck injuries when applying his conclusions to her physical reaction; however, in our review of Dr. McNish=s testimony we see that he in fact directly addressed her preexisting condition throughout his discussion of the accident and took it specifically into account when developing his conclusions.^[1] 

Havner requires us to determine whether the evidence conclusively established the opposite of Dr. McNish=s conclusion, in which case his testimony would be considered no evidence.  Havner, 953 S.W.2d at 711.  Dr. McNish adequately supported the conclusion he drew from the evidence, that is, that Gill=s preexisting injuries were not aggravated by the forces of the accident.  Gill called several additional expert witnesses to the stand; however, only one of these witnesses responded to the causation testimony proffered by Dr. McNish.  Gilbert Meadows, Ph.D., who had treated Gill for back injuries following the 1996 accident, did note that there was a herniation in Gill=s neck after the 1996 accident with Slovak that had not been present before the accident. However, another physician who had previously treated Gill for her back problems noted that, AI think had she never had another injury at all, I think sooner or later in her lifetime she would have required surgery, based on what I saw back in 1991.@

In light of all the evidence adduced at trial, we see that the evidence at best raised a factual dispute as to Dr. McNish=s findings but failed to conclusively establish the opposite of his conclusion.  We conclude that Dr. McNish=s testimony met the Havner test and was properly considered to be some evidence of the circumstances of the accident and its effect on Gill=s health.  See id.  Gill=s second issue is overruled.

Jury Award

By her third issue on appeal, Gill argues that the jury=s damage award is supported by legally insufficient evidence.  Specifically, she argues that the amounts awarded in each of the various categories of damages were against the great weight and preponderance of the evidence because (1) with respect to causation, Dr. McNish=s testimony is incompetent and constitutes no evidence, and (2) with respect to the amount of damages, the undisputed evidence supports amounts substantially greater than those awarded by the jury.  Because we have determined that Dr. McNish=s testimony satisfied Havner and could properly be considered evidence relating to causation, we consider only the latter of Gill=s complaints about the adequacy of the jury award. 

When we review a legal-sufficiency point, we must consider all of the record evidence in a light most favorable to the party in whose favor the verdict has been rendered and indulge in that party=s favor every reasonable inference deducible from the evidence.  See Formosa Plastics Corp. U.S.A. v. Presidio Eng=rs & Contractors, Inc., 960  S.W.2d 41, 48 (Tex. 1998). We disregard all contrary evidence that a reasonable jury could have disbelieved.  See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). 

The amount of damages to be awarded in negligence cases is primarily a matter for the jury to determine.  SunBridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 247 (Tex. App.BTexarkana 2005, no pet.); Dico Tire, Inc. v. Cisneros, 953 S.W.2d 776, 791-92 (Tex. App.BCorpus Christi 1997, writ denied).   Each case must be measured by its own facts, and considerable discretion and latitude must be given to the jury's award.  Weidner v. Sanchez, 14 S.W.3d 353, 372 (Tex. App.BHouston [14th Dist.] 2000, no pet.).  In considering and weighing the evidence, we must defer to the fact‑finder as the final determiner of the credibility of witnesses and the weight to give their testimony.  See SunBridge Healthcare, 160 S.W.3d at 247.   Conflicts in the evidence and inferences to be drawn from them are for the jury to resolve.  Dico Tire, 953 S.W.2d at 791; Hughes v. Thrash, 832 S.W.2d 779, 786 (Tex. App.BHouston [1st Dist.] 1992, no writ).  When the elements of damages considered by the jury include the more amorphous, discretionary damages, such as mental anguish, pain and suffering, physical impairment, and disfigurement, any amount awarded above the more definitive past medical expenses and lost wages will be left to the discretion of the jury.  Dico Tire, 953 S.W.2d at 791-92.  The determination of the amount of money that will compensate the plaintiff for physical injuries, impairment, and mental anguish involves a consideration of elements for which no mathematical standard exists except what an honest or impartial jury may deem adequate.  Id. at 792.

A verdict will be set aside on appeal only where the record clearly indicates that the award was based on passion, prejudice, or improper motive, or is so excessive as to shock the conscience.   See SunBridge Healthcare, 160 S.W.3d at 247-48.  As long as sufficient probative evidence exists to support the jury's verdict, this Court will not substitute its judgment for that of the jury. Id. at 248 & n. 11; Dico Tire, 953 S.W.2d at 792. 

The jury awarded the following damages:

Medical care in the past:                                          $6,920.00

Medical care in the future:                                        $1.00

Loss of earnings in the past:                                    $1,530.00

Loss of earnings in the future:                                  $1.00

Household services in the past:                              $1.00

Disfigurement in the past:                                        $1.00

Disfigurement in the future:                          $1.00

Physical impairment in the past:                             $1.00

Physical impairment in the future:               $1.00

Physical pain and mental anguish in the past:       $20,760.00

Physical pain and mental anguish in the future: $1.00

Because Gill asserts that Dr. McNish=s testimony was incompetent and inadmissible, she characterizes the testimony of her own witnesses as undisputed.  However, as we have concluded that Dr. McNish=s testimony was admissible, we do not consider Gill=s evidence alone. Gill also asserts that the amount of damages was undisputed; however, we note that although the total amount of medical expenses claimed by Gill appears to be undisputed, the fraction of this total amount owed by Slovak is still in dispute between the parties and Slovak never stipulated that he was liable for the whole amount.

As previously noted, Dr. McNish testified that Gill=s injuries and pain were not caused or aggravated by the accident with Slovak.  Gill=s witnesses, who included Gill herself, her mother and sister, and several doctors, disagreed and claimed that all or most of Gill=s post-accident expenses were caused by the Slovak accident.  Dr. Meadows, as noted, stated that it was Ano question there was a herniation after the accident.@  Gill=s neuropsychologist, Philip Gasquione, Ph.D., reported that Gill scored high on a hypochrondrial scale and that there was a Astrong psychological component@ to her reported physical pain.  Warren Neely, M.D., a neurological surgeon who had previously treated Gill, noted that she already had a series of earlier back injuries and pain and opined that additional surgery on Gill=s back would have been inevitable even without the aggravation to her pre-existing condition from the Slovak accident.  Gill admitted that she had refilled a prescription for pain medication shortly before the accident although she denied that she had actually been in pain. Gill also testified at length regarding her deteriorating physical condition and additional pain and suffering following the accident with Slovak. 

As fact-finder, the jury was free to evaluate and accept or reject the testimony it heard. Dico Tire, 953 S.W.2d at 791. The jury clearly accepted some, but not all, of the testimony, as the ultimate amount of damages awarded, $29,218, was both greater than that requested by Slovak but less than that claimed by Gill. There is no indication in the record that the jury was improperly motivated by passion or prejudice, and the award is not so excessively large or small as to shock the conscience.  See SunBridge Healthcare, 160 S.W.3d at 247-48. Furthermore, there was evidence presented on all the damage categories presented to the jury: past and future medical care, past and future earnings losses, previous losses of household services, past and future disfigurement and physical impairment, and past and future physical pain and mental anguish.  Disregarding all unreasonable contrary evidence, we conclude the evidence is legally sufficient to support the jury=s findings on damages.  See City of Keller, 168 S.W.3d at 819.  We overrule appellant=s third issue on appeal.

Evidence of Bias

By her fourth issue on appeal, Gill asserts that the trial court erred in refusing to admit evidence regarding Dr. McNish=s alleged bias. Dr. McNish stated in his testimony that he was employed by Biodynamics Research Corporation and was also a two percent shareholder in the company.  Gill sought to examine Dr. McNish regarding over a million dollars in fees paid to Biodynamics by Slovak=s insurance provider over the five years prior to this case, alleging that this would impeach Dr. McNish=s testimony by demonstrating bias.  The trial court refused to allow this line of questioning, although Gill was able to question Dr. McNish regarding $40,000 in fees he had charged for his involvement in the current case.  Gill now argues on appeal that the exclusion of the evidence of bias was erroneous and probably led to the rendition of an improper judgment.   

The decision whether to admit or exclude evidence is within the discretion of the trial court. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995).  To be admissible, evidence must be relevant and must not be more prejudicial than probative.  See Tex. R. Evid. 402, 403.  To obtain reversal of a judgment based upon an evidentiary error in the trial court, an appellant must also establish that the error probably caused rendition of an improper judgment in the case or probably prevented the appellant from properly presenting the case to the appellate court. See Tex. R. App. P. 44.1(a); James v. Kloos, 75 S.W.3d 153, 159 (Tex. App.BFort Worth 2002, no pet.).  Furthermore, before harm may be established, the entire record must be examined to determine whether any excluded evidence was controlling on a material issue and not cumulative of other evidence.  See Williams Distrib. Co., v. Franklin, 898 S.W.2d 816, 817 (Tex. 1995).

To preserve error in the exclusion of evidence, a party must make the following showing: (1) attempt during the evidentiary portion of the trial to introduce the evidence; (2) if an objection is lodged, specify the purpose for which the evidence is offered and give the trial judge reasons why the evidence is admissible; (3) obtain a ruling from the court; and (4) if the judge rules the evidence is inadmissible, make a record, through a bill of exceptions, of the precise evidence the party desires admitted. Estate of Veale v. Teledyne Indus., Inc., 899 S.W.2d 239, 242 (Tex. App.BHouston [14th Dist.] 1995, writ denied) (citations omitted).

Here, after the trial court ruled against allowing the alleged bias evidence, Gill made a bill of exceptions.  In her bill, she attempted to make a record of the precise evidence she desired admitted, that is, Dr. McNish=s bias due to the payments made by Slovak=s insurer to Dr. McNish=s employer. The following exchange occurred:

Counsel:         Dr. McNish, isn=t it true that Allstate has paid Biodynamics Research Corporation for the year 1996 through 2001 between one million and two million dollars directly to Biodynamics Research Corporation?

Dr. McNish:    I don=t know.

. . . .

Counsel:         Okay. And having been made aware of the fact that Biodynamics Research Corporation has received from Allstate, the company paying the bills in this case for the defense, that that would give some bias to the testimony that you=re offering?

Dr. McNish:    Well, since I didn=t even know until you told me, it couldn=t very well have biased me.

Given that Dr. McNish denied all knowledge of any relation between his company and Slovak=s insurance provider, we see that Gill failed to establish bias evidence in the bill for the record.  Furthermore, the various exhibits filed in conjunction with the bill which, she alleges, further establish bias by demonstrating the payments made by Slovak=s insurer to Biodynamics, are not included in the appellate record.  We are therefore unable to determine whether they independently served to establish Dr. McNish=s bias.  See Tex. R. App. P. 38.1. 

Given the evidence available to us, we see that Gill would have been unable to establish Dr. McNish=s personal bias had the trial court allowed Gill to examine Dr. McNish as she desired on the question of payments made to his company.  Dr. McNish did not admit to any bias or to any knowledge of the underlying facts which allegedly established his bias.  Therefore, we conclude that the examination of Dr. McNish on the question of bias would not have been material to the outcome of the case, and regardless of whether the exclusion of this evidence was erroneous, it could not have caused the rendition of an improper judgment in the case.  See James, 75 S.W.3d at 159.  Gill=s fourth issue is overruled. 

Conclusion

The judgment of the trial court is affirmed.

                                                                                                      Rogelio Valdez,

Chief Justice

Memorandum Opinion delivered and filed

this 27^th day of October, 2005.

---

^[1]For example, Dr. McNish made the following statements throughout his testimony:

[T]he forces of the accident do not put any extra stress on that abnormality that she had in her back. . . . . [T]he forces of the accident do not do anything to make this condition that she=s had for years worse. . . .  I found significant in the medical records that Ms. Gill had had low back problems for a long time; that recommendation had been made for surgery; that as far back as 1981 she had had neck pain documents in her medical records . . . . [I]t is my opinion that the stress to her neck from this event did not have anything to do with either causing or worsening the problem for which she underwent surgery sometime later. . . . We know she was on anti-anxiety medication, so someone with a high anxiety level would be likely to tense up more than someone else. . . .