Sharon Huston v. United Parcel Service, Inc. , 434 S.W.3d 630 ( 2014 )

Opinion issued April 29, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00387-CV
———————————
SHARON HUSTON, Appellant
V.
UNITED PARCEL SERVICE, INC., Appellee
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Case No. 2009-59257
OPINION
Sharon Huston sued United Parcel Service, Inc. (“UPS”) for negligence after
one of UPS’s drivers allegedly rear-ended her in an automobile collision. The trial
court granted summary judgment in favor of Huston on liability, and the case
proceeded to trial solely on damages. The jury awarded Huston a total of $96,000
in damages, which the trial court reduced to $33,000 pursuant to Texas Rule of
Civil Procedure 167. In three issues, Huston contends that (1) the trial court
erroneously denied her the opportunity to effectively cross-examine a key defense
witness; (2) the trial court erroneously limited the evidence of her past medical
expenses to the amounts that a third-party company paid to several of Huston’s
medical providers for their accounts receivables; and (3) the jury’s award of zero
damages for past and future disfigurement, lost future earning capacity, future
physical impairment, and future medical expenses was against the great weight and
preponderance of the evidence.
We affirm.
Background
On January 8, 2009, Huston stopped at a red light on the frontage road of I-
45 South and Bellfort. Gabriel Haskin, a driver for UPS, stopped directly behind
her in a package truck. According to Haskin, the traffic light turned green and he
started to drive forward, but a driver to the left of him honked and distracted him.
When he turned back and looked ahead of him, he noticed that Huston had not
started driving forward into the intersection. Haskin slammed on his brakes but
was unable to avoid hitting the rear of Huston’s car. The trial court granted partial
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summary judgment in favor of Huston on liability, and the parties proceeded to
trial solely on the issue of damages.
At trial, the parties sharply disputed both the severity of the crash and the
severity and extent of Huston’s subsequent injuries. Huston testified that she
started to move forward as soon as the light turned green, but, before she could
accelerate, Haskin rear-ended her with such force that the collision “shot [her] like
six lanes” across the road. She stated that her head “bashed” the steering wheel
during the collision, and, as a result, she still had a mark on her forehead at the
time of trial, nearly three years after the collision. 1 She also testified that, in the
crash, she jammed her wrist, her knee hit the dashboard, her ankles “jammed into
the gas pedal,” and she had lower back pain. Huston stated that she still had pain
in her back, hips, and neck, that she had trouble sitting for long periods of time,
and that she was taking several medications each day. She testified that her
understanding was that she might never fully recover from her injuries.
Huston consulted several doctors after the collision. Among her medical
procedures after the collision were steroid injections, neck surgery, arthroscopic
surgery on her knee, back surgery, and carpal tunnel surgery on her left hand. She
testified that, in addition to the scar on her forehead, she has other scars from her
surgery, including a visible one on her neck.
1
On cross-examination, she testified that hitting her head on the steering wheel left
a bruise but not a cut.
3
In contrast to Huston’s testimony that the crash was severe, Haskin
estimated that he was traveling approximately five miles per hour when his truck
collided with Huston’s car. Dr. John Laughlin, Huston’s own biomedical
engineering expert who performed accident reconstruction services, estimated that
Haskin was traveling between seven and eleven miles per hour at the time of the
collision. Haskin characterized the damage to Huston’s vehicle as “minimal
damage to where she can drive it,” and he stated that his truck sustained no damage
at all.
UPS retained Dr. Thomas Grieder, an orthopedic surgeon, to review
Huston’s medical records. Dr. Grieder testified via video deposition that the
records from the Ben Taub General Hospital emergency room, where Huston went
several hours after the collision, were consistent with Haskin’s testimony that the
collision occurred at a low speed. He noted that Huston presented inconsistent
accounts of the collision to different doctors over the course of her medical care.
He testified that, in addition to Huston’s medical records following the collision at
issue in this case, he also reviewed medical records from a car accident that Huston
had in 2008, the year before the accident at issue in this case. He stated that x-rays
of Huston’s neck taken at that time revealed degenerative disc disease. He also
testified that the medical records from the collision at issue revealed degenerative
changes in Huston’s knee, noticeable on x-rays the day after the collision. He
4
stated that degenerative changes could not occur because of trauma within that
short a period of time.
Dr. Grieder testified that the medical records he reviewed revealed “no
evidence that Ms. Huston sustained an identifiable injury to her right knee” as a
result of the collision. He opined that Huston’s problems leading to her knee
surgery were not caused by the collision at issue and that she did not have an injury
that necessitated the physical therapy that one of her doctors prescribed for her
knee. He further testified that, several days after the collision, Huston’s lumbar
spine x-rays appeared normal and showed no injuries. He testified that Huston’s
cervical spine x-rays, taken two months after the collision, revealed degenerative
disc disease, which could not be caused by an auto accident or whiplash. Dr.
Grieder also testified that the neck and back surgeries that Huston underwent were
not warranted because he was “not aware of any injury that she sustained in her
neck or back that would—that would benefit from surgery.” He stated, “My
opinion is I have no evidence that [Huston] required any of that treatment to treat
any injuries sustained in this accident.” Dr. Grieder ultimately concluded that
Huston sustained no permanent injury as a result of the collision, that she did not
need further medical treatment, and that, in seeking treatment and recovery of
damages, she was motivated by secondary gain, and not the primary goal of
restoration of good health.
5
Huston also alleged that she suffered from traumatic brain injury as a result
of the collision. UPS retained Dr. Francisco Perez, a neuropsychologist, to
evaluate this claim. During his examination of her, Huston secretly recorded the
encounter, and then played a portion of this recording at Dr. Perez’s deposition in
an attempt to challenge his recollection of how his session with her had ended.
Huston subsequently moved to strike Dr. Perez’s testimony on grounds of perjury.
The trial court denied this motion.
The parties later submitted their page/line designations for the excerpts from
Dr. Perez’s video deposition that each party desired to publish to the jury at trial.
At a pre-trial hearing, the trial court ruled on these designations. It is undisputed
that, at this hearing, the trial court made a ruling limiting Huston’s cross-
examination of Dr. Perez. The parties strongly disagree, however, regarding the
scope of that ruling and whether the ruling applied solely to the excerpts of Dr.
Perez’s deposition testimony or whether it would apply if Huston called Dr. Perez
to testify live. Huston did not request a reporter’s record of this pre-trial hearing
and none was made. Therefore, the trial court’s specific ruling on this question
does not appear in the appellate record.
Huston also testified concerning her earning capacity. She stated that she
had previously worked in auto sales and had been twice terminated by a dealership,
but then she was told to report for work the next day and received a raise. She
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testified that she could no longer physically perform this work due to the amount
of walking involved with being a car salesperson. Shortly before the accident,
Huston had entered into a contract to perform photography work for $4,000 per
month. She agreed with UPS’s counsel that she made approximately $8,000 in
2007 and $11,000 in 2008.
The trial court admitted a surveillance video that UPS obtained after the
collision, reflecting that, despite her medical problems, Huston was able to move
around normally. Dr. Jose Rodriguez, Huston’s own orthopedic surgeon, testified
that she should not still be using a walker to move around, as she had at trial, and
that he expected that, by the end of the year, Huston could return to “sedentary”
type work. Kenneth McCoin, Huston’s economic expert, agreed on cross-
examination that if Huston had had some medical event that was not related to the
collision at issue and that event had caused her injuries affecting her ability to
work, she would not have lost future wages because of the collision.
After the collision, Huston entered into an agreement with a company called
A/R Net, which purchased the accounts receivable for some of Huston’s medical
providers at a discounted rate. 2 Under the contract between Huston and A/R Net,
Huston remained liable to A/R Net for the full amount of the medical services
billed by her medical providers, not the discounted rate at which A/R Net
2
The record does not contain any of the accounts-receivable purchase agreements
entered into between A/R Net and Huston’s medical providers.
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purchased the accounts. The receivables purchased by A/R Net totaled
$240,849.44, for which it paid a total of $81,589.
Before trial, the parties disagreed over the amount of Huston’s medical bills
that should be submitted to the jury. Huston argued that she was entitled to present
the gross total amount of her medical bills. UPS argued, in contrast, that, with
respect to the bills of medical providers who had sold their accounts receivable to
A/R Net, pursuant to Civil Practice and Remedies Code section 41.0105, Huston’s
recovery of damages and the evidence that she should be allowed to present to the
jury on damages should be limited to the amount that A/R Net paid those providers
for their receivables, and should not be the gross bill amounts. 3 The trial court
agreed with UPS. The parties then stipulated, subject to Huston’s objection, that
the total amount Huston’s medical providers had been paid or were entitled to be
paid was $206,146.62.
The jury awarded Huston $15,000 for past pain and mental anguish, $15,000
for future pain and mental anguish, $15,000 for loss of earning capacity in the past,
$1,000 for past physical impairment, and $50,000 for past medical expenses. The
jury awarded Huston $0 for loss of earning capacity in the future, past and future
3
See TEX. CIV. PRAC. & REM. CODE ANN. § 41.0105 (Vernon 2008) (“In addition to
any other limitation under law, recovery of medical or health care expenses
incurred is limited to the amount actually paid or incurred by or on behalf of the
claimant.”).
8
disfigurement, physical impairment in the future, and future medical expenses.
The jury thus awarded Huston a total of $96,000 in damages.
In its final judgment, the trial court noted that UPS had made a pre-trial offer
to settle the case for $300,000. Because the amount ultimately awarded to Huston
by the jury was less than eighty percent of the amount of the settlement offer, and
thus the jury award was “significantly less favorable” to Huston than the offer, the
trial court applied Texas Rule of Civil Procedure 167 and ruled that UPS was
entitled to a set-off for its litigation costs. The trial court applied a $64,000 set off
and rendered judgment that Huston recover $33,000 from UPS, plus post-judgment
interest. This appeal followed.
Limitation of Cross Examination
In her first issue, Huston contends that the trial court denied her an
“effective opportunity to cross-examine a key witness,” Dr. Perez, the
neuropsychologist retained by UPS to evaluate Huston. UPS argues that Huston
failed to preserve this complaint for appellate review because she failed to bring
forth on appeal a record of the trial court’s adverse ruling. We agree with UPS.
To preserve a complaint for appellate review, the record must show that the
complaining party made a complaint to the trial court by timely request, objection,
or motion and that the trial court ruled on the request, objection, or motion. See
TEX. R. APP. P. 33.1(a). The appellant bears the burden to bring forward on appeal
9
a sufficient record to show the error committed by the trial court. See Nicholson v.
Fifth Third Bank, 226 S.W.3d 581, 583 (Tex. App.—Houston [1st Dist.] 2007, no
pet.); see also Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (per
curiam) (“The burden is on the appellant to see that a sufficient record is presented
to show error requiring reversal.”). The trial court has broad discretion regarding
the extent of cross-examination allowed. Harris Cnty. v. Inter Nos, Ltd., 199
S.W.3d 363, 368 (Tex. App.—Houston [1st Dist.] 2006, no pet.). The appellant’s
failure to obtain a reporter’s record containing a challenged ruling makes it
impossible for the appellate court to determine that the trial court abused its
discretion in making the ruling. See Brown Mech. Servs., Inc. v. Mountbatten Sur.
Co., Inc., 377 S.W.3d 40, 44 n.1 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
An appellant may be entitled to a new trial due to a lost or destroyed portion
of the reporter’s record if (1) she timely requested a reporter’s record; (2) without
her fault, a significant portion of the court reporter’s notes and records of the
proceedings has been lost or destroyed; (3) the lost or destroyed portion of the
record is necessary to the appeal’s resolution; and (4) the lost or destroyed portion
of the reporter’s record cannot be replaced by agreement of the parties. See TEX.
R. APP. P. 34.6(f); Villagomez Invs., L.L.C. v. Magee, 294 S.W.3d 687, 688 (Tex.
App.—Houston [1st Dist.] 2009, no pet.).
10
Dr. Perez testified at trial by video deposition. In her opening appellate
brief, Huston argued that the trial court allowed her to play only the portion of Dr.
Perez’s deposition relating to his fees and improperly excluded the remainder of
her cross-examination. In response, UPS agreed that the trial court made a ruling
concerning Huston’s cross-examination of Dr. Perez, but it disputed the scope of
that ruling, arguing that the ruling was not as restrictive as Huston represented and
did not prevent Huston from calling Dr. Perez as a witness and cross-examining
him live before the jury. UPS also argued that Huston failed to preserve her
complaint for appellate review, pointing out that no portion of the existing
appellate record contained the ruling at issue. According to UPS, Huston thus
failed to meet her burden to present a record of the challenged adverse ruling. In
reply, Huston argued that she was entitled to a new trial under Rule 34.6(f) because
the portion of the record containing the relevant ruling on Dr. Perez’s cross-
examination had been lost. She supplied the affidavits of her two trial attorneys as
support that she had requested that the court reporter record the hearing at which
the trial court made the relevant ruling.
Because of this dispute, we abated the appeal and directed the trial court to
hold a hearing and make several findings of fact, including a finding on whether
Huston had requested that the court reporter record the pretrial hearing at which the
11
trial court made its ruling concerning the cross-examination of Dr. Perez. The trial
court held the requested hearing and made the following finding of fact:
Despite Plaintiff’s Counsel’s testimony to the contrary, the evidence
indicates that Huston did not request that the pretrial hearing at which
the trial court made the ruling concerning cross-examination of Dr.
Perez be transcribed by a court reporter. Furthermore, it is the Court’s
practice and procedure to allow any party a record upon request.
The court made a separate finding that “[t]he hearing was not recorded and Huston
did not timely request the reporter’s record of that hearing.” We conclude that
because Huston did not timely request a reporter’s record of the pretrial hearing at
issue, and no such record was ever made, she is not entitled to a new trial pursuant
to Rule 34.6(f). See TEX. R. APP. P. 34.6(f) (requiring, as condition for being
entitled to new trial due to lost or destroyed record, that appellant has timely
requested reporter’s record); Villagomez Invs., 294 S.W.3d at 688.
We further conclude that because Huston has not presented a record
containing the trial court’s ruling on the cross-examination of Dr. Perez, which she
challenges on appeal, she has not met her burden to bring forward a sufficient
record demonstrating error by the trial court. See Christiansen, 782 S.W.2d at 843;
Nicholson, 226 S.W.3d at 583; see also Brown Mech. Servs., 377 S.W.3d at 44 n.1
(holding that failure to obtain reporter’s record makes it impossible for appellate
court to determine whether trial court abused its discretion); Inter Nos Ltd., 199
S.W.3d at 368 (holding that trial court has “broad discretion” in determining extent
12
of cross-examination). We hold that Huston has failed to preserve this complaint
for appellate review.
We overrule Huston’s first issue.
Evidence of Medical Expenses
In her second issue, Huston contends that she incurred the full amount of
expenses billed by her medical providers because A/R Net, which purchased
certain accounts receivable, is legally entitled to recover the full amount of the
charges billed, and Huston is contractually obligated to pay the full amount to A/R
Net. She contends, therefore, that the trial court erroneously limited the evidence
of her past medical expenses to the discounted amount that A/R Net paid to the
providers to purchase the accounts receivable.
Civil Practice and Remedies Code section 41.0105 provides, “In addition to
any other limitation under law, recovery of medical or health care expenses
incurred is limited to the amount actually paid or incurred by or on behalf of the
claimant.” TEX. CIV. PRAC. & REM. CODE ANN. § 41.0105 (Vernon 2008). The
Texas Supreme Court construed this provision in Haygood v. De Escabedo and
held that “this statute limits recovery, and consequently the evidence at trial, to
expenses that the [medical] provider has a legal right to be paid.” 356 S.W.3d 390,
391 (Tex. 2011). In Haygood, twelve different health care providers billed
Haygood, who was covered by Medicare Part B, a total of $110,069.12. Id. at 392.
13
Pursuant to federal regulations that prohibited providers from charging patients
more than Medicare had determined to be reasonable, Haygood’s providers applied
$82,329.69 in adjustments, leaving a total of $27,739.43 to be paid. Id. At trial,
the trial court allowed Haygood to introduce evidence of the full, gross amounts
billed by his providers, and the jury awarded the full amounts billed as past
medical expenses. Id. The Tyler Court of Appeals reversed, holding that “section
41.0105 precluded evidence or recovery of expenses that ‘neither the claimant nor
anyone acting on his behalf will ultimately be liable for paying.’” Id.
In affirming the court of appeals, the Texas Supreme Court first discussed
the general rationale behind the recovery of compensatory damages, which are
“intended to make the plaintiff ‘whole’ from any losses resulting from the
defendant’s interference with the plaintiff’s rights,” and the collateral source rule,
which “precludes any reduction in a tortfeasor’s liability because of benefits
received by the plaintiff from someone else.” Id. at 394 (quoting Transp. Ins. Co.
v. Moriel, 879 S.W.2d 10, 16 (Tex. 1994)). The supreme court disagreed with
Haygood that an adjustment to medical bills required by an insurer is not a
collateral benefit, holding instead that “[a]n adjustment in the amount of those
charges to arrive at the amount owed is a benefit to the insurer, one it obtains from
the provider for itself, not for the insured.” Id. at 395. The court acknowledged
the collateral source rule, which operates to prevent windfalls to tortfeasors, but
14
also noted that “impos[ing] liability for medical expenses that a health care
provider is not entitled to charge does not prevent a windfall to a tortfeasor; it
creates one for a claimant.” Id. The court therefore concluded that the collateral-
source rule “does not allow recovery as damages of medical expenses a health care
provider is not entitled to charge.” Id. at 396.
The supreme court then turned to the text of section 41.0105 and reasoned
that “actually paid and incurred,” as used in the statute, “means expenses that have
been or will be paid, and excludes the difference between such amount and charges
the service provider bills but has no right to be paid.” Id. at 396–97. It reiterated
that a tortfeasor is not liable to a health care provider or to the claimant for medical
expenses that the claimant was not required to pay to the provider because to hold
otherwise would allow the claimant to recover a windfall. Id. at 397. The court
therefore concluded that section 41.0105 “limits a claimant’s recovery of medical
expenses to those which have been or must be paid by or for the claimant.” Id. at
398. The court then held that because a claimant is not allowed to recover medical
expenses that the provider is not entitled to be paid, “evidence of such charges is
irrelevant to the issue of damages” and is inadmissible. Id. The court ultimately
concluded that “only evidence of recoverable medical expenses is admissible at
trial” and that the court of appeals correctly held that the trial court erred in
15
allowing Haygood to present evidence of the full amount of medical expenses
billed to him. Id. at 399–400.
Huston argues that section 41.0105 and the Texas Supreme Court’s decision
in Haygood have no effect on her recovery because, although A/R Net purchased
select accounts receivables at a discounted rate, she is contractually obligated to
pay A/R Net the full amount of the expenses that the medical providers billed her,
and A/R Net is entitled to recover the full amount of those expenses. Thus, under
these circumstances, restricting Huston’s recovery and the evidence of medical
bills presented at trial to the amount that A/R Net paid to the providers does not
create a windfall in her favor but instead leaves her “grossly undercompensated
because she is still liable to A/R Net for the entire amount.” UPS argues, in
contrast, that Haygood clearly limits a plaintiff’s recovery to the amount that the
medical providers have a right to be paid, which, here, is the amount for which
A/R Net purchased the accounts receivable from the providers. As such, according
to UPS, the trial court correctly excluded evidence of medical expenses other than
what the medical providers had the right to be paid.
Assuming, without deciding, that the trial court erroneously limited the
evidence of Huston’s past medical expenses to the amounts that the medical
providers had the right to be paid instead of allowing evidence of the full amount
of medical expenses billed to Huston, we agree with UPS that, in this case, such an
16
error is harmless. To obtain reversal on this issue, Huston had to establish that the
trial court’s error probably caused the rendition of an improper judgment. TEX. R.
APP. P. 44.1(a). After the trial court’s ruling limiting the amount of past medical
expenses that Huston could present to the jury pursuant to section 41.0105 and
Haygood, the parties stipulated, over Huston’s objection, that she had incurred
$206,146.62 in past medical expenses. The jury ultimately awarded Huston only
$50,000 in damages for past medical expenses, less than twenty-five percent of the
amount for which she had presented evidence. Huston has not demonstrated that,
had she been allowed to present the full amount of the medical expenses for which
she was billed, the jury would have awarded her that amount or any amount greater
than the $50,000 that it did award.
We therefore conclude that Huston has not established that the trial court
committed reversible error when it limited the evidence of past medical expenses
to the amount that the medical providers, as opposed to A/R Net, had a legal right
to collect.
We overrule Huston’s second issue.
Sufficiency of Evidence of Damages Award
In her third issue, Huston contends that the jury’s award of zero damages for
past and future disfigurement, loss of future earning capacity, future physical
17
impairment, and future medical expenses was against the great weight and
preponderance of the evidence.
In reviewing a challenge to the factual sufficiency of the evidence, we “must
consider and weigh all of the evidence and should set aside the judgment only if it
is so contrary to the overwhelming weight of the evidence as to be clearly wrong
and unjust.” Arias v. Brookstone, L.P., 265 S.W.3d 459, 468 (Tex. App.—Houston
[1st Dist.] 2007, pet. denied) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex.
1986) (per curiam)); see also Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242
(Tex. 2001) (holding same). The fact-finder is the sole judge of the witnesses’
credibility, and it may choose to believe one witness over another, and a reviewing
court may not impose its own opinion to the contrary. City of Keller v. Wilson, 168
S.W.3d 802, 819 (Tex. 2005); Arias, 265 S.W.3d at 468; see also Lanier v. E.
Founds., Inc., 401 S.W.3d 445, 455 (Tex. App.—Dallas 2013, no pet.) (“When we
review the evidence, we may not reweigh it and set aside the verdict merely
because we feel a different result is more reasonable.”). Because it is the fact-
finder’s province to resolve conflicts in the evidence, we assume that it resolved all
such conflicts in favor of the verdict if reasonable people could do so. City of
Keller, 168 S.W.3d at 819; Arias, 265 S.W.3d at 468.
Generally, the jury has great discretion in considering evidence relevant to
the issue of damages. See Lanier, 401 S.W.3d at 455 (citing McGalliard v.
18
Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986)). Issues such as physical impairment
are necessarily speculative, “and it is particularly within the jury’s province to
resolve these matters and determine the amounts attributable thereto.” Id.;
Figueroa v. Davis, 318 S.W.3d 53, 62 (Tex. App.—Houston [1st Dist.] 2010, no
pet.) (“The amount of damages awarded for pain and suffering and disfigurement
are necessarily speculative and each case must be judged on its own facts.”).
Courts have defined disfigurement as “that which impairs the appearance of a
person, or that which renders unsightly, misshapen or imperfect, or deforms in
some manner.” Figueroa, 318 S.W.3d at 64 (quoting Doctor v. Pardue, 186
S.W.3d 4, 18 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)). Future
disfigurement is “necessarily speculative” and “there is no mathematical yardstick
by which one can measure damages for it.” Id. (quoting Tri-State Motor Transit
Co. v. Nicar, 765 S.W.2d 486, 494 (Tex. App.—Houston [14th Dist.] 1989, no
writ)).
Lost earning capacity is an assessment of the plaintiff’s capacity to earn a
livelihood prior to injury and the extent to which the injury impaired that capacity.
Scott’s Marina at Lake Grapevine, Ltd. v. Brown, 365 S.W.3d 146, 158–59 (Tex.
App.—Amarillo 2012, pet. denied). This measure of damages is not measured by
what a person actually earned before the injury but by the person’s capacity to
earn, even if she had never worked in that capacity in the past. Id.; Gen. Motors
19
Corp. v. Burry, 203 S.W.3d 514, 553 (Tex. App.—Fort Worth 2006, pet. denied).
Loss of future earning capacity is the plaintiff’s diminished capacity to earn a
living after trial. Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21, 35 (Tex.
App.—Tyler 2003, pet. denied). Proof of lost earning capacity is always uncertain
and is left largely to the jury’s discretion. Rigdon Marine Corp. v. Roberts, 270
S.W.3d 220, 232 (Tex. App.—Texarkana 2008, pet. denied). To support an award
for damages for lost earning capacity, the plaintiff must present evidence sufficient
to permit a jury to reasonably measure earning capacity in monetary terms. Tagle
v. Galvan, 155 S.W.3d 510, 519–20 (Tex. App.—San Antonio 2004, no pet.).
Non-exclusive factors to consider include evidence of past earnings and the
plaintiff’s stamina, efficiency, ability to work with pain, and work-life expectancy.
Big Bird Tree Servs. v. Gallegos, 365 S.W.3d 173, 178 (Tex. App.—Dallas 2012,
pet. denied). There must be some evidence that the plaintiff had the capacity to
work prior to the injury and that that capacity was impaired as a result of the
injury. Reynolds, 127 S.W.3d at 36.
“When there is conflicting evidence about the severity of the injuries or
about whether the injuries were caused by the collision, the jury has the discretion
to resolve the conflicts, determine which version of the evidence to accept, and
refuse to award damages.” Lanier, 401 S.W.3d at 455. The jury may determine
that only part of the injuries were caused by the defendant’s conduct at issue and
20
may award damages accordingly. Id. Courts have upheld jury awards of zero
damages even when subjective and objective evidence of injuries existed so long
as the verdict was not so against the great weight of the evidence as to be
manifestly unjust. See id. at 456.
Huston contends that the jury’s award of zero damages for past
disfigurement is against the great weight and preponderance of the evidence
because she presented evidence that she hit her head on the steering wheel of her
car in the collision, that she had a “prominent scar” on her forehead that was still
visible at the time of trial, and that she had scars on her throat, knee, and back from
the multiple surgeries that she had had following the collision.
UPS, however, presented evidence that the injuries for which Huston
requested damages were not actually caused by the collision. Huston testified that
she hit her head on her steering wheel, which caused a bruise, but she admitted on
cross-examination that she did not cut her forehead. Gabriel Haskin testified that
he was going approximately five miles an hour when he rear-ended Huston, and
thus the collision occurred at a low speed. Huston’s own biomechanical
engineering expert concluded that Haskin’s truck was traveling between seven and
eleven miles per hour at the time of the collision. Dr. Grieder, an orthopedic
surgeon, testified that he reviewed Huston’s medical records, and he stated that
21
Huston’s initial emergency-room complaints of a headache and neck pain were
consistent with a low-speed collision.
Dr. Grieder also noted that Huston saw numerous doctors after the collision
and that she presented inconsistent accounts of what had happened in the accident
and her initial symptoms. He also noted that Huston had been in a car accident
approximately one year before the accident at issue and that x-rays taken after that
incident and before the incident that forms the basis of this case indicated that
Huston had degenerative disc disease in her neck. Dr. Grieder further testified that
diagnostic tests conducted after the collision at issue in this case revealed that
Huston had degeneration in her knee, which could not have been caused by the
collision. He stated that he saw “no evidence” that Huston “sustained an
identifiable injury to her right knee” in the collision. Dr. Grieder concluded that
the condition leading to Huston’s knee surgery was not caused by the collision. He
also noted that a lumbar-spine x-ray taken three or four days after the collision was
normal and showed no injuries. 4 He stated, “So, we have a lady here that’s
4
On cross-examination of Dr. Rodriguez, Huston’s treating orthopedic surgeon, the
following exchange occurred:
[UPS’s counsel]: So you would have to change your
opinion that you gave earlier that the low
back was caused because of the accident
with UPS. You can’t say that now that
you’ve seen all the records, true?
[Dr. Rodriguez]: That’s correct.
22
complaining of painful things; but we have no other objective data to confirm what
she is telling us is true.” He further stated, “I’m not aware of any injury that she
sustained in her neck or back that would—that would benefit from surgery.”
Huston undisputedly had surgery that resulted in several surgical scars.
However, UPS presented evidence disputing Huston’s contention that UPS’s
conduct caused those injuries. It is within the jury’s province as the fact finder to
consider the credibility of the witnesses and weigh the evidence. City of Keller,
168 S.W.3d at 819; Arias, 265 S.W.3d at 468. The jury also has discretion to
determine that only part of the injuries at issue were caused by the defendant’s
conduct, and it may award damages accordingly. See Lanier, 401 S.W.3d at 455.
In this situation, in which conflicting evidence exists concerning the severity of
Huston’s injuries and the cause of those injuries, the jury has the discretion to
resolve the conflicts in the evidence, to choose which version of the evidence to
accept, and to refuse to award damages. See id. Here, the jury resolved the
conflicts in the evidence in favor of UPS, and we conclude that the jury’s failure to
award damages for past and future disfigurement was not against the great weight
and preponderance of the evidence.
In challenging the jury’s award of zero damages for loss of future earning
capacity, Huston argues that “[i]t is abundantly clear that [she] has lost earnings in
the past and in the future” and notes that “she had just started a job with a contract
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for $4,000 per month that she was only able to perform for one week before the
collision.” She presents no further argument for why the jury’s award of no
damages was against the great weight and preponderance of the evidence, and she
does not address the factors that courts consider when reviewing an award of
damages for loss of future earning capacity, such as her stamina, efficiency, ability
to work through pain, and work-life expectancy. See Big Bird Tree Servs., 365
S.W.3d at 178; see also TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and
concise argument for the contentions made, with appropriate citations to authorities
and to the record.”). Although Huston presented evidence that she was unable to
return to the photography job that she had just started at the time of the collision,
and economic evidence suggesting that she could expect diminished future
earnings as a result of the collision, UPS presented evidence in the form of a
surveillance video that indicated Huston was able to move around normally. Dr.
Rodriguez, Huston’s own orthopedic surgeon, testified that Huston should not use
a walker to move around and that he would expect that, by the end of the year,
Huston could return to a “sedentary type” of work. Kenneth McCoin, Huston’s
economic expert, agreed on cross-examination that, if Huston had “some medical
event in her life that is not in anyway tethered to this car wreck and . . . is not
influenced by this car wreck,” then she would have no lost future wages because of
the collision.
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We conclude that the jury resolved the conflicting evidence in favor of UPS
and that the jury’s award of zero damages for loss of future earning capacity was
not against the great weight and preponderance of the evidence. City of Keller,
168 S.W.3d at 819; Arias, 265 S.W.3d at 468.
Huston further challenges the jury’s award of zero damages with respect to
physical impairment in the future and future medical expenses. On appeal, Huston
presents no argument in support of this challenge beyond stating, “With respect to
the jury’s awards of no damages for . . . physical impairment in the future, and
medical expenses in the future, clearly there was more than sufficient evidence to
demonstrate such losses.” Huston has not identified any testimony relevant to
medical expenses that she expects to incur in the future. We conclude that Huston
has waived these challenges for failure to adequately brief these contentions. See
TEX. R. APP. P. 38.1(i).
When we consider all the evidence, we conclude that the jury’s award of
zero damages for past and future disfigurement, loss of future earning capacity,
physical impairment in the future, and future medical expenses is not so against the
great weight and preponderance of the evidence that the verdict is manifestly
unjust. See Dow Chem. Co., 46 S.W.3d at 242; Arias, 265 S.W.3d at 468.
We overrule Huston’s third issue.
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Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Bland, Brown.
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