JLG Trucking LLC v. Lauren R. Garza , 461 S.W.3d 554 ( 2013 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-13-00043-CV
JLG TRUCKING LLC,
Appellant
v.
Lauren R.
Lauren R. GARZA,
Appellee
From the 49th Judicial District Court, Zapata County, Texas
Trial Court No. 7459
Honorable Jose A. Lopez, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: October 9, 2013
AFFIRMED
A jury awarded Lauren R. Garza $1,166,264.38 in damages for injuries she sustained as a
result of an automobile accident which the jury found was caused by the negligence of an employee
of JLG Trucking LLC. JLG does not challenge the jury’s liability finding on appeal. JLG does
challenge: (1) the trial court’s exclusion of evidence of Garza’s involvement in a second
automobile accident; (2) the trial court’s admission of certain expert testimony; and (3) the legal
sufficiency of the evidence to support the jury’s award of damages Garza will incur or sustain in
the future. We affirm the trial court’s judgment.
04-13-00043-CV
EXCLUSION OF EVIDENCE OF SECOND ACCIDENT
In its first three issues, JLG asserts the trial court erred in excluding evidence that Garza
was in a second automobile accident three months after the accident involving JLG’s employee.
JLG contends the jury should have been allowed to consider this evidence in determining whether
some or all of the injuries sustained by Garza were attributable to the second accident.
1. Standard of Review
“The admission and exclusion of evidence is committed to the trial court’s sound
discretion.” City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). A trial court
abuses its discretion if it acts without reference to any guiding rules or principles or acts in an
arbitrary or unreasonable manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-
42 (Tex. 1985).
2. Necessity of Expert Testimony on Causation
In Guevara v. Ferrer, 247 S.W.3d 662, 663 (Tex. 2007), the Texas Supreme Court
addressed the issue of when expert testimony is required to support a finding of causation in a case
involving an automobile accident. The court concluded, “expert medical evidence is required to
prove causation unless competent evidence supports a finding that the conditions in question, the
causal relationship between the conditions and the accident, and the necessity of the particular
medical treatments for the conditions are within the common knowledge and experience of
laypersons.” Id. In that case, the court recognized that “basic conditions following an automobile
collision can be within the common experience of lay jurors.” Id. at 668 (emphasis added). Where
a party’s injuries could be linked to more than one cause, however, expert testimony is required to
determine the proper causal link. See Guevara, 247 S.W.3d at 669 (expert proof of conditions and
causes necessary when independent causes could have caused patient’s conditions); State Office
of Risk Mgmt. v. Adkins, 347 S.W.3d 394, 401 (Tex. App.—Dallas 2011, no pet.) (expert testimony
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was required to establish that twisting of neck at work aggravated pre-existing injury to neck
caused by automobile accident); Bowler v. Metropolitan Transit Auth. of Harris County, No. 01-
06-00553-CV, 2007 WL 1299803, at *2 (Tex. App.—Houston [1st Dist.] May 3, 2007, no pet.)
(citing cases holding that “expert medical testimony is required when the record identifies more
than one cause of the plaintiff’s injuries”) (mem. op.); Praytor v. Ford Motor Co., 97 S.W.3d 237,
241 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (expert testimony on causation required
where medical condition could have several causes).
3. Analysis
In July of 2008, the 18-wheeler truck driven by JLG’s employee rear-ended the pick-up
truck driven by Garza. JLG sought to introduce evidence that Garza was in a second collision
involving two automobiles in October of 2008. JLG offered the evidence to show that this second
accident could be the cause of some or all of the injuries to Garza’s neck.
During the trial court’s hearing on Garza’s motion to exclude the evidence of the second
accident, the trial court was informed that Garza’s treating physician would testify at trial that all
of Garza’s injuries were attributable to the first collision. The trial court was further informed that
the radiologist that JLG had designated as an expert would testify that the MRI of Garza’s neck
showed only one possible herniation that was not caused by trauma but by degenerative disease.
Therefore, no expert testimony was proffered to establish that the second collision caused any of
Garza’s injuries. Because expert testimony would be required to establish any such causal link
between the second collision and Garza’s injuries, the trial court did not abuse its discretion in
excluding the evidence of the second collision.
SUPPLEMENTATION OF DISCOVERY
In its fourth, fifth, and sixth issues, JLG asserts the trial court erred in admitting the
testimony of Garza’s treating physician, a vocational rehabilitation counselor, and an economist
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because their deposition testimony was materially different from the disclosures that were
previously made and the reports that were previously provided. Garza responds that the changes
in the testimony were refinements, not material changes.
Pursuant to Rule 194.2(f), Garza disclosed the requisite information for her retained
testifying experts. The disclosure stated that Richard Cortez, a certified public accountant and
economist, would testify regarding Garza’s loss of earning capacity, and Donna Johnson, a
licensed professional rehabilitation counselor, would testify regarding Garza’s life care plan,
vocational rehabilitation, future work options, work disability rating, psychological issues, and
causation. Garza’s treating physician, Dr. Guillermo Pechero, also was properly disclosed as a
testifying expert.
It appears JLG is arguing that Garza failed to timely amend or supplement these disclosures
pursuant to Rule 193.5 of the Texas Rules of Civil Procedure. Rule 193.5 requires supplementation
if a party’s response “was incomplete or incorrect when made, or, although complete and correct
when made, is no longer complete and correct.” TEX. R. CIV. P. 193.5(a). JLG argues that
Johnson’s designation “did not contain any numbers or specific numerical level of disability
assumed by the witness;” however, in her deposition that was taken less than 30 days before trial,
Johnson “amended her opinion to state that [Garza] would be incapable of working a full time job”
and “her work would be reduced 5 to 20 hours per week.” With regard to Cortez, JLG argues
Cortez’s initial projection of loss of earning capacity was based on minimum wage earnings;
however, Garza untimely produced a revised report from Cortez with projections based on an
accountant’s wages. Finally, JLG argues that Garza’s discovery response did not disclose any
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amount for future medical expenses; however, in his deposition which was taken one week before
trial, Dr. Pechero testified about Garza’s possible need for future surgery. 1
With regard to Dr. Pechero, JLG provides no citations to support its contention that Garza
was required to disclose future medical expenses in response to a request for a disclosure regarding
the method of calculating economic damages. In addition, JLG provides no record citation to
support its contention that Garza’s disclosures did not contain this information. Accordingly,
JLG’s contention is inadequately briefed. See TEX. R. APP. P. 38.1(g), (i). Moreover, Garza’s
disclosures stated that Dr. Pechero would testify regarding Garza’s treatment, prognosis, diagnosis,
and causes of her injuries, and Garza’s need for future surgery is part of her prognosis. Even
assuming that Garza was required to disclose an amount for future medical expenses in her
response, JLG cannot demonstrate that it was harmed by the admission of Dr. Pechero’s testimony
in this regard because, as discussed later in this opinion, the evidence is legally sufficient to support
the jury’s award of future medical expenses even absent his testimony. See TEX. R. APP. P. 44.1(a)
(reversal not required unless error probably caused the rendition of an improper judgment); GTE
Southwest, Inc. v. Bruce, 998 S.W.2d 605, 620 (Tex. 1999) (erroneous admission of expert
testimony harmless where other testimony established same fact).
With regard to the testimony of Johnson and Cortez, “[o]ur rules do not prevent experts
from refining calculations and perfecting reports through the time of trial.” Exxon Corp. v. West
1
With regard to preservation of error, JLG contends that it filed two pretrial motions to exclude or limit the testimony
it challenges. The problem with this contention is that JLG actually filed a motion to exclude, challenging the
testimony of Cortez and Johnson under Rule 702 based on Dr. Pechero’s testimony that Garza’s surgery was
successful. JLG then filed an amended motion to exclude, challenging Cortez’s use of an accountant’s salary in his
damages model and Dr. Pechero’s testimony regarding the need for a second surgery. In general, an amended motion
completely supersedes and supplants the earlier-filed motion. See Retzlaff v. Tex. Dept. of Crim. Justice, 135 S.W.3d
737, 738 (Tex. App.—Houston [1st Dist.] 2003, no pet.); TEX. R. CIV. P. 64, 65. At the hearing on the motion to
exclude, however, the trial court was aware of the substance of JLG’s complaint; therefore, we will assume for
purposes of this opinion that error was properly preserved.
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Tex. Gathering Co., 868 S.W.2d 299, 304 (Tex. 1993). Although Cortez recalculated Garza’s
future earning capacity based on information that she was steadily working toward completing her
accounting degree, his methodology and the formula he used to make his calculations did not
change. See Pilgrim’s Pride Corp. v. Smoak, 134 S.W.3d 880, 902 (Tex. App.—Texarkana 2004,
pet. denied) (expert’s change to post-accident wages variable was a refinement in calculations or
an expansion on already disclosed subject); Koko Motel, Inc. v. Mayo, 91 S.W.3d 41, 51 (Tex.
App.—Amarillo 2002, pet. denied) (trial court did not abuse its discretion in allowing expert to
testify by applying different data appearing of record into old methodology or formulas to voice
an alternate opinion). Similarly, Garza disclosed that Johnson would testify regarding future work
options and work disability ratings. See Norfolk Southern Ry. Co. v. Bailey, 92 S.W.3d 577, 581
(Tex. App.—Austin 2002, no pet.) (noting expert may expand on already disclosed subject).
Johnson’s deposition testimony refined her opinion to add specific numbers. Neither Cortez nor
Johnson made “the kinds of fundamental alterations that would constitute a surprise attack on the
opposing side.” Lubbock County v. Strube, 953 S.W.3d 847, 856 (Tex. App.—Austin 1997, pet.
denied). Therefore, the trial court did not abuse its discretion in concluding that the rules did not
prevent Cortez or Johnson from refining their testimony.
SUFFICIENCY OF THE EVIDENCE
In its seventh through tenth issues, JLG challenges the legal sufficiency of the evidence to
support the jury’s award of future damages. JLG does not challenge the jury’s award of past
damages.
A. Standard of Review
We review a legal sufficiency or “no evidence” challenge under the well-established
principles set forth in City of Keller v. Wilson, 168 S.W.3d 802 (Tex.2005). Reviewing the
evidence in the light most favorable to the finding and indulging every inference that would
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support it, we sustain a no-evidence challenge only if: (1) the record reveals a complete absence
of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight
to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is
no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of the vital
fact. Id. at 810, 822. The trier of fact is the sole judge of the credibility of the witnesses and the
weight to be given to their testimony. Id. at 819.
B. Future Medical Expenses
“In Texas, the ‘reasonable probability’ rule is followed for damages for future medical
expenses.” Saeco Elec. & Util., Ltd. v. Gonzales, 392 S.W.3d 803, 808 (Tex. App.—San Antonio
2012, pet. granted, judgm’t vacated w.r.m.). “To recover future medical expenses, a plaintiff must
show there is a ‘reasonable probability’ that such expenses will be incurred in the future.” Id.
“While the preferred practice is to establish future medical expenses through expert medical
testimony, the rule does not require this.” Id. “Instead, a jury can make an award for future medical
expenses based on the nature of the plaintiff’s injuries, medical care rendered to a plaintiff before
trial, and the condition of the plaintiff at the time of trial.” Id. “Furthermore, a jury’s award of
future medical expenses lies mostly within the jury’s discretion.” Id. “‘Because issues such as
life expectancy, medical advances, and the future costs of products and services are, by their very
nature, uncertain, appellate courts are particularly reluctant to disturb a jury’s award of these
damages.’” Id.
In this case, Garza was twenty-two-years-old at the time of trial. Both she and Dr. Pechero
testified regarding the nature of her neck injury, her efforts to recover with conservative care, and
her ultimate decision to undergo the operation which left her with the permanent placement of
metal plates in her neck. Garza underwent the surgery in January of 2012, and the case was tried
in October of 2012. Although both Garza and Dr. Pechero considered the surgery a success and
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Garza’s conditions had improved, Garza testified that she was not in the same condition as she was
before the accident. Garza stated that she still experienced pain and could not sit for long periods
of time or the muscles in her neck become stiff. Garza further stated that Dr. Pechero had talked
about surgery sometime in the future. 2 Johnson also testified that pain worsens as people age, and
people with surgery tend to develop arthritis in the area where the surgery was performed. Johnson
stated that this type of arthritis will be an issue for Garza in the future.
Based on the foregoing testimony, the jury could have determined that a reasonable
medical probability exists that Garza will incur medical expenses in the future based on her neck
injury, which could include an additional surgery. Accordingly, the evidence is legally sufficient
to support the jury’s award of future medical expenses.
C. Future Physical Pain
“[E]vidence of continuing pain can support an award of future physical pain.” Gibbins v.
Berlin, 162 S.W.3d 335, 344 (Tex. App.—Fort Worth 2005, no pet.). As previously noted, Garza
testified regarding her on-going pain and described the discomfort she experiences when she sits
for prolonged periods of time. The jury also heard about the metal plates that were permanently
placed in Garza’s neck which Dr. Pechero acknowledged would affect her flexibility. This
testimony is sufficient to support the jury’s award for future physical pain.
D. Future Physical Impairment
The jury charge defined “physical impairment” as the loss of Garza’s former lifestyle. See
Pierre v. Swearingen, 331 S.W.3d 150, 156 (Tex. App.—Dallas 2011, no pet.) (noting physical
impairment includes limitations on physical activities and the inability to participate in physical
activities engaged in before an accident). The charge further stated, “It can encompass both
2
Although Dr. Pechero also testified that Garza could require an additional surgery in the future, we do not rely on
his testimony in our analysis for the reasons previously stated in this opinion.
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economic and non-economic losses, and can include hedonic damages, or loss of enjoyment of
life.” See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 772 (Tex. 2003) (noting loss
of enjoyment of life may be compensated as physical impairment).
In this case, Garza testified that she could no longer ride roller coasters due to risk of
additional injury. She also can no longer play tennis because the swinging motion and other
required movements cause a stinging sensation that is very discomforting and painful. Garza also
can no longer bowl, ride in a boat, or go hunting due to the risk of injury to her neck. Garza also
can no longer go dancing or carry her niece and nephew because of their weight. Garza also
expressed concern with her ability to carry her own children in the future. This testimony is
sufficient to support the jury’s damage award for future physical impairment.
JLG relies heavily on Dollison v. Hayes, 79 S.W.3d 246 (Tex. App.—Texarkana 2002, no
pet.), to support its position that Dr. Pechero’s testimony that Garza’s surgery was a success
precluded the jury from awarding damages to Garza for future physical impairment. In that case,
however, the appellate court was reviewing the sufficiency of the evidence to support the jury’s
award of zero damages for physical impairment. Id. at 248. Moreover, the plaintiff was released
to work after approximately two months of physical therapy and had never seen the orthopedic
surgeon since his release. Id. The opinion does not refer to any testimony by the plaintiff regarding
the effect of the injury on his life activities; instead, the plaintiff argued the jury was required to
award some damages for physical impairment since it awarded him damages for lost wages. Id.
Accordingly, Dollison is clearly distinguishable from the instant case in which Garza had metal
plates permanently implanted in her neck and testified regarding the life activities in which she
could no longer engage.
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E. Future Loss of Earning Capacity
JLG contends the evidence is insufficient to support the award of future loss of earning
capacity because Dr. Pechero testified that Garza’s surgery was successful and did not testify that
she was unable to work. This argument ignores the testimony of Garza’s two retained experts.
Johnson, a licensed vocational rehabilitation counselor with forty-two years of experience, testified
regarding the limitations on Garza’s ability to work in the future based on her injuries. Although
Johnson testified that Dr. Pechero’s opinion regarding Garza’s future ability to work would have
been helpful in her analysis, she stated that she could reach her opinion even in the absence of that
testimony. Furthermore, Cortez provided the jury with a mathematical formula to apply in
calculating Garza’s future loss of earning capacity. This testimony is sufficient to support the
jury’s damage award for loss of future earning capacity.
RULE 702
In its final issue on appeal, JLG contends the trial court erred in allowing Cortez and
Johnson to testify regarding Garza’s loss of earning capacity because Dr. Pechero testified that
Garza’s surgery was a success. As previously noted, however, Johnson’s qualifications enabled
her to testify regarding the manner in which Garza’s injuries will limit her in working in the future
independent of Dr. Pechero’s testimony. JLG appears to interpret Dr. Pechero’s testimony as
evidence that Garza has been returned to her pre-accident physical condition. Garza’s testimony,
however, clearly allowed the jury to find to the contrary.
JLG also contends that because Garza had only held minimum wage jobs before her
injuries, her loss of future earning capacity had to be based on minimum wage. This misconstrues
the concept of future earning capacity. “Lost earning capacity is not measured by what a person
actually earned before an injury but by what the person’s capacity to earn a livelihood actually was
even if he or she had never worked at that capacity in the past.” General Motors Corp. v. Burry,
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203 S.W.3d 514, 553 (Tex. App.—Fort Worth 2006, pet. denied). “In order to recover diminished
earning capacity in a particular occupation, it is not always necessary for the plaintiff to have been
working in and deriving earnings from that occupation before injury, as long as earnings from that
occupation would provide a true measure of that plaintiff’s earning capacity.” Id.
In this case, Garza was pursuing a degree in accounting when she was injured, and Johnson
testified regarding the likelihood that Garza would complete her degree given her self-motivation.
Garza also testified about her intentions to complete her degree. This evidence supported Cortez’s
use of an accountant’s salary in calculating Garza’s loss of future earning capacity.
CONCLUSION
The trial court’s judgment is affirmed.
Catherine Stone, Chief Justice
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