Jeremy Oney and Horizon Cable Service, Inc. v. William Crist and Heather Crist , 517 S.W.3d 882 ( 2017 )

NO. 12-16-00045-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JEREMY ONEY AND HORIZON § APPEAL FROM THE 124TH
CABLE SERVICE, INC.,
APPELLANTS
V. § JUDICIAL DISTRICT COURT
WILLIAM CRIST AND HEATHER
CRIST,
APPELLEES § GREGG COUNTY, TEXAS
OPINION
Jeremy Oney and Horizon Cable Service, Inc. appeal from a judgment against them and
in favor of William “Chip” Crist and Heather Crist. Oney and Horizon present ten issues
challenging the trial court’s judgment. We affirm in part and reverse and render in part.
BACKGROUND
The Crists were injured when their vehicle was struck by a Horizon “spooling” truck
driven by Oney. According to Oney, the truck weighs approximately 32,000 to 52,000 pounds
and is “governed,” i.e., it can travel no more than seventy-five miles per hour. On the day of the
collision, Oney was traveling in the right lane with the cruise control set on seventy miles per
hour. The road was wet from rain. An Escalade, driven by Chip and occupied by Heather,
Taylor White, and White’s wife, traveled in front of Oney.
Jarron Marshall, who was driving a pickup truck in front of the Crists, lost control of his
vehicle and landed in a ditch. Oney and Chip both applied their brakes. Oney decreased his
speed to approximately forty-five to fifty miles per hour and locked the truck’s axles. Knowing
that a collision was inevitable, he slowed down as much as possible, veered left to avoid hitting
the Escalade straight on, and clipped the Escalade’s left corner. The collision thrust the Escalade
forward near a bridge, but the Escalade did not leave the road or collide with other traffic. Oney
testified that his truck entered the ditch and struck Marshall’s vehicle.
The Crists sued both Oney and Horizon for injuries sustained as a result of the accident.
The jury found that (1) the negligence of Oney and Horizon, but not Marshall, proximately
caused the accident; (2) Chip was entitled to $103,898.35 for past medical care, $334,146 for
future medical care, $100,000 for past physical pain and mental anguish, $400,000 for future
physical pain and mental anguish, $150,000 for past physical impairment, and $600,000 for
future physical impairment; (3) Heather was entitled to $105,185.84 for past medical care,
$300,000 for future medical care, $100,000 for past physical pain and mental anguish, $400,000
for future physical pain and mental anguish, $250,000 for past physical impairment, and
$600,000 for future physical impairment; and (4) Oney and Horizon were grossly negligent. The
jury found that Chip and Heather were each entitled to $300,000 in exemplary damages. This
appeal followed.
MARSHALL’S NEGLIGENCE
In issues one and two, Horizon challenges the legal and factual sufficiency of the
evidence to support the jury’s finding that Marshall was not negligent. According to Horizon,
Marshall’s negligence led to his loss of control and was the primary, proximate cause of the
accident.
Standard of Review and Applicable Law
When reviewing the legal sufficiency of the evidence, we consider the evidence in the
light most favorable to the verdict. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).
We credit favorable evidence if a reasonable juror could, and disregard contrary evidence unless
a reasonable juror could not. Id. at 807. “The final test for legal sufficiency must always be
whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict
under review.” Id. at 827. When reviewing the factual sufficiency of the evidence, we consider
and weigh all of the evidence. Id. at 826. We will set aside the verdict only if it is so against the
great weight and preponderance of the evidence that it is clearly wrong and unjust. Id. Jurors
are the sole judges of the witnesses’ credibility and the weight to give their testimony. Id. at
819. They are entitled to believe one witness and disbelieve another. Id. We are not permitted
to impose our own opinions to the contrary. Id.
2
To establish negligence, a plaintiff must prove (1) a legal duty owed by the defendant to
the plaintiff, (2) a breach of that duty, and (3) damages proximately caused by the breach. Lee
Lewis Constr. Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). Proximate cause is comprised
of cause-in-fact and foreseeability. Id. at 784. “The test for cause-in-fact is whether the act or
omission was a substantial factor in causing the injury ‘without which the harm would not have
occurred.’” Id. (quoting Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477
(Tex.1995)). Foreseeability means that a person of ordinary intelligence should have anticipated
the dangers that his negligence created for others. Id. at 785. The “injury need only be of a
general character that the actor might reasonably anticipate.” Id. “More than one act may be the
proximate cause of the same injury.” Id. at 784.
Analysis
The jury found that Oney and Horizon were negligent, but that Marshall was not. The
record demonstrates that Marshall lost control of his vehicle. White testified that Marshall
“gunned it” just before losing control. According to Marshall, his vehicle began “fishtailing.”
Having heard a “pop,” he believed that one of his tires had blown out. However, Texas State
Trooper Robbie Dillard testified that his report contained no documentation of a blow-out and he
found no evidence of a blow-out at the scene. Oney testified that, after the accident, Marshall
apologized and told him that he had “spun out” and installed a “souped-up” motor in his truck.
Oney guessed that the truck “got away from [Marshall]” as a result of “over-acceleration.”
White testified that Marshall’s truck had a V8 engine, which White testified is a large engine.
He testified that he recorded a conversation immediately after the accident, but he could not
locate the recording and did not recall any specific statements made on the recording. He
believed that admissions of fault by Oney and Marshall would have been on the recording. Chip
testified that White gave him a copy of the recording, but the recording would not play.
Trooper Dillard testified that Marshall lost control because he was driving at an unsafe
speed during wet road conditions, which started the chain of events that led to the collision. He
acknowledged that there is no reason to believe that Oney would have struck the Crists had
Marshall not lost control of his vehicle. Marshall acknowledged that his loss of control possibly
set in motion the events of that day.
The jury also heard Trooper Dillard testify that, regardless of Marshall’s actions, there
would not have been a collision between the Horizon truck and the Escalade had Oney controlled
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his speed. Dillard cited Oney for failure to control his speed because Oney could not control his
vehicle and avoid striking the Escalade. He explained that failure to control speed occurs when a
vehicle’s speed is unreasonable under the circumstances or conditions, and the driver’s lack of
control results in a collision. He agreed that Oney needed to drive at a distance sufficient to
avoid striking another vehicle and should not have been driving too fast, too close, on a wet road,
and with his cruise control set on seventy miles per hour. Dillard testified that, in his experience,
a driver does not set the cruise control in wet road conditions. Additionally, the jury heard
evidence that, although the Crists were driving directly behind Marshall, they were able to avoid
either leaving the roadway or striking another vehicle when Marshall lost control. White
believed that if Oney had driven as reasonably as Chip, the accident would not have happened.
Ronald Dean Savage, II, Horizon’s assistant general manager and former safety director,
acknowledged that a driver must decrease his speed when driving in the rain, and keep a
sufficient distance between himself and the vehicle in front of him so that he can avoid a
collision. Oney admitted that a reasonable, prudent driver has a duty to drive a vehicle in such a
way as to be able to stop before colliding with another vehicle. He also agreed that it was not a
good idea to set the cruise control while driving in wet conditions. Shane Risley, Horizon’s
general manager and vice-president, agreed that the accident appeared to be Oney’s fault.
As sole judge of the weight and credibility of the evidence, the jury could reasonably
conclude that, despite Marshall’s actions, Oney should have anticipated the dangers of driving
too fast and too close to the Crists in wet road conditions. See Harrison, 70 S.W.3d at 785.
Accordingly, the jury could also reasonably conclude that Oney’s conduct was a substantial
factor in causing the Crists’ injuries and that, absent Oney’s failure to control his speed, harm
would not have occurred to the Crists. See Wilson, 168 S.W.3d at 819; see also Harrison, 70
S.W.3d at 784. Furthermore, the jury could reasonably conclude that Marshall’s conduct did not
cause the Crists’ injuries. Viewing the evidence in the light most favorable to the verdict, we
conclude that the evidence is legally sufficient to support the jury’s conclusion that Oney, not
Marshall, was negligent. See Wilson, 168 S.W.3d at 824. The jury’s finding is not so against the
great weight and preponderance of the evidence as to be clearly wrong and unjust. See id. at
826. We overrule issues one and two.
4
NEGLIGENT ENTRUSTMENT
In issue three, Horizon challenges the legal sufficiency of the evidence to support
negligent entrustment. Specifically, Horizon maintains that the evidence fails to establish that
(1) Oney was an incompetent or reckless driver, and (2) Horizon knew or should have known
that Oney was an incompetent or reckless driver.
Applicable Law
To establish negligent entrustment, a plaintiff must show (1) entrustment of a vehicle by
the owner; (2) to an unlicensed, incompetent, or reckless driver; (3) that the owner knew or
should have known to be unlicensed, incompetent, or reckless; (4) that the driver was negligent
on the occasion in question; and (5) that the driver’s negligence proximately caused the accident.
Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex. 1987). “For entrustment
to be a proximate cause, the defendant entrustor should be shown to be reasonably able to
anticipate that an injury would result as a natural and probable consequence of the entrustment.”
Id. The plaintiff must prove that the risk that caused the entrustment to be negligent caused the
accident at issue. TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 240 (Tex. 2010).
Incompetence or recklessness may be established by the employee’s driving record and
habits, as well as his condition, situation, or state at the time he is loaned the vehicle. Revisore v.
West, 450 S.W.2d 361, 364 (Tex. Civ. App.—Houston [14th Dist.] 1970, no pet.). Entrustment
may be negligent when the employee is physically or mentally incapacitated, intoxicated, or
lacking in judgment or perception. Id.
Facts
Regarding Oney’s driving history and habits, Oney testified that he has a commercial
driver’s license, which has never been revoked, and several years of experience driving various
trucks. He admitted being terminated by previous employers, but only one involved a driving
infraction. Specifically, he was terminated after striking a fence post. Oney included his
employment history on his job application with Horizon. Savage testified that Oney has a clean
driving record and there have been no complaints regarding his driving.
Oney also admitted that his driver’s license lists a restriction that he is to drive while
wearing corrective lenses, but he gave conflicting statements as to whether he wore those lenses
on the day of the collision. He further admitted having a previous “conviction” for possession of
an open container of alcohol while in an eighteen-wheeler. But, he explained that he was never
5
arrested, cited, or appeared in court for the offense. The offense occurred five or six years before
Oney applied for the job at Horizon and was listed on Oney’s job application. The record
indicates that Horizon did not have Oney drug tested until several hours after the collision, even
though testing was available. However, Trooper Dillard testified that Oney did not appear to be
intoxicated at the scene of the collision. Savage testified that Oney’s drug tests have all been
negative.
Regarding Oney’s training and experience, the record indicates that Oney had worked for
Horizon approximately thirty four days before the collision. According to Savage, Oney
completed an employment application while Horizon’s CDL driver, Joseph Modisette, was on
another job. Horizon’s yard manager, Jody Nolen, who does not hold a CDL, administered
Oney’s driving test. Savage explained that Nolen understood the truck’s logistics and merely
gave Oney a small test drive. The record indicates that Nolen was eventually terminated for
various reasons, including dishonesty. However, Savage testified that Modisette handled Oney’s
trial period. Risley testified that if he could go back in time, he would not have allowed Oney to
drive the truck.
Oney testified that Horizon trained him to drive a small spooling truck, which he drove
for two to three weeks. He learned how to operate the truck and received safety training. He had
been driving the large spooling truck for approximately one week before the collision. In his
deposition, Oney agreed that the collision would not have occurred had he been properly trained.
But, at trial, he explained that his training enabled him to minimize the damage because, without
any training, he probably would have struck the Escalade straight on at seventy miles per hour.
He believed that his training prompted him to slow down and veer away from the Escalade to
reduce the damage.
Regarding Oney’s condition, situation, or state, the record indicates that Oney worked
approximately fourteen hours on the day of the collision. During his deposition, Oney
complained that the accident occurred, in part, because he sometimes did not have a day off
when business was heavy. He stated he was probably fatigued because of the long hours he
worked in the previous days. According to Oney, he was required to work even after informing
Horizon that he felt fatigued, and in violation of federal regulations. When asked if he thought
Oney was fatigued at the time of the accident, White stated that the fact Oney struck the Escalade
when he had an opportunity to avoid the collision indicates that “something was not right.”
6
Savage and Risley both acknowledged that fatigued drivers should not be allowed on the
roadway and that fatigue can affect a driver’s reaction time. However, Savage testified that
Oney never complained of being overworked or working in violation of federal regulations. At
trial, Oney denied telling anyone to stop forcing him to drive more than federally authorized. He
testified that he was off work the three days before the collision, and had additional days off in
the two weeks before the collision. He testified that he was not fatigued at the time of the
collision, and was in compliance with federal regulations. Trooper Dillard testified that Oney
did not mention feeling fatigued when at the scene of the collision. He testified that he would
have listed fatigue as a contributing factor had he been informed of any such issue.
Analysis
The evidence in this case demonstrates that Oney was a licensed driver and, with one
minor exception, had not been involved in prior accidents. See Goodyear Tire & Rubber Co. v.
Mayes, 236 S.W.3d 754, 758 (Tex. 2007) (stating that prior citations for driving without liability
insurance, for rear-ending another vehicle, and for speeding insufficient to establish
incompetence or recklessness); see also Mireles v. Ashley, 201 S.W.3d 779, 783 (Tex. App.—
Amarillo 2006, no pet.) (stating that “[p]roof of one previous traffic violation is grossly
inadequate to establish a driver’s incompetency or recklessness[]”). Moreover, the record does
not substantiate that Oney was actually convicted of a possession offense. The offense is several
years old, and the record is devoid of evidence showing that Oney was intoxicated when the
collision occurred or has a history of intoxication.
Additionally, there must be more than an owner’s general awareness of an employee’s
fatigue. Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 406 (Tex. 2009). The
employer must have actual knowledge that its employee was impaired when leaving work on the
day of the accident. Id. Given that Oney had time off in the days before the collision and the
record does not indicate that Oney was fatigued on the day of the collision, it is unreasonable to
conclude that Horizon knew or should have known that Oney was incompetent or reckless due to
fatigue. See id.; see also Mayes, 236 S.W.3d at 758 (stating that driver’s long work week,
lengthy commute, and work schedule failed to create fact issue that driver was, or employer
knew or should have known that he was, incompetent due to insufficient sleep).
The record also indicates that Oney received training to drive a spooling truck, had
experience driving other commercial vehicles, and had operated the truck on other occasions
7
without incident. Even the absence of formal training does not establish that a driver is
incompetent or reckless. See 4Front Engineered Sol., Inc. v. Rosales, 505 S.W.3d 905, 910-11
(Tex. 2016). There is no evidence of Oney’s habits or prior experiences that would tend to show
that he could not competently operate the spooling truck or would do so recklessly. See id. at
910. It is insufficient that Horizon knew or should have known that Oney might have a
momentary lapse in judgment or otherwise act negligently. See id. at 911.
The evidence of Oney’s driving record, habits, condition, situation, and state does not
establish that, at the time Horizon entrusted the truck to Oney, he was an incompetent or reckless
driver, or Horizon knew or should have known that he was an incompetent or reckless driver.
See id. at 910-11; see also Mayes, 236 S.W.3d at 758; Schneider, 744 S.W.2d at 596; Revisore,
450 S.W.2d at 364. There is no evidence tending to show that Oney could not competently
operate the spooling truck or would do so recklessly, and evidence of his negligence is not
tantamount to evidence of recklessness. See Rosales, 505 S.W.3d at 910-11. Thus, viewing the
evidence in the light most favorable to the verdict, we conclude that reasonable and fair-minded
people could not reach the conclusion that Horizon negligently entrusted the spooling truck to
Oney on the day of the collision. See id.; see also Wilson, 168 S.W.3d at 827. We sustain issue
three.
GROSS NEGLIGENCE
In issues four, five, and six, Horizon challenges the legal sufficiency of the evidence to
support the jury’s findings that Oney and Horizon were grossly negligent, as well as the jury’s
awards of exemplary damages.
Standard of Review and Applicable Law
When reviewing an award of exemplary damages for gross negligence, we conduct a
legal sufficiency review under the “clear and convincing” evidence standard. U-Haul Int’l, Inc.
v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012). Clear and convincing evidence is that measure or
degree of proof that will produce within the jury’s mind a firm belief or conviction as to the truth
of the allegations sought to be established. TEX. CIV. PRAC. & REM. CODE ANN. §§ 41.001(2),
41.003(b) (West Supp. 2016 & West 2015); Waldrip, 380 S.W.3d at 137.
Gross negligence includes the following elements: (1) viewed objectively from the
actor’s standpoint, the act or omission complained of involves an extreme degree of risk,
8
considering the probability and magnitude of the potential harm to others; and (2) the actor had
actual, subjective awareness of the risk, but nevertheless proceeded with conscious indifference
to the rights, safety, or welfare of others. TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(11)
(West Supp. 2016); Waldrip, 380 S.W.3d at 137. “‘[E]xtreme risk’ is not a remote possibility or
even a high probability of minor harm, but rather the likelihood of the plaintiff’s serious injury.”
Waldrip, 380 S.W.3d at 137. Actual awareness means that the defendant knew about the peril,
but his actions or omissions demonstrate that he did not care. Harrison, 70 S.W.3d at 785.
Analysis
Exemplary damages may be imposed when “the owner of the vehicle knows or should
have known that the entrusted driver was incompetent or habitually reckless and the owner was
grossly negligent in entrusting the vehicle to that driver.” Schneider, 744 S.W.2d at 596. As
previously discussed, there is no evidence supporting a finding that Horizon knew or should have
known that Oney was reckless or incompetent. Accordingly, the record cannot support the
heightened standard for gross negligence, i.e., that Horizon actually knew Oney was
incompetent, much less habitually reckless. See id. There is simply no evidence that Horizon
knew, but was consciously indifferent to, any risks associated with entrusting the spooling truck
to Oney. See Waldrip, 380 S.W.3d at 140. Therefore, the evidence does not rise to the level
from which a reasonable factfinder could have formed a firm belief or conviction that Horizon
knew about a peril caused by Oney’s driving but its acts or omissions demonstrate that it did not
care about the rights, safety, or welfare of others. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 41.001(2), (11); see also Waldrip, 380 S.W.3d at 137; Harrison, 70 S.W.3d at 785.
Nor is the evidence sufficient to establish gross negligence against Oney. An act or
omission is grossly negligent only when it is unjustifiable and likely to cause serious harm.
Reeder v. Wood Cty. Energy, L.L.C., 395 S.W.3d 789, 797 (Tex. 2012). In this case, Oney acted
negligently by following too closely and speeding in wet road conditions, with his cruise control
set on seventy. However, conscious indifference is not satisfied by proof of negligence. Agrium
U.S., Inc. v. Clark, 179 S.W.3d 765, 767 (Tex. App.—Amarillo 2005, pet. denied).
Additionally, “[a]n act or omission that is merely ineffective, thoughtless, careless, or not
inordinately risky is not grossly negligent.” Reeder, 395 S.W.3d at 797. Thus, Oney’s failure to
pursue the safest course available or to comply with traffic laws does not give rise to conscious
indifference. See Clark, 179 S.W.3d at 767. For these reasons, a reasonable factfinder could not
9
have formed a firm belief or conviction that Oney’s actions amount to conscious indifference.
See TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(2), (11); see also Waldrip, 380 S.W.3d at 137;
Harrison, 70 S.W.3d at 785.
Accordingly, we conclude that the Crists failed to offer clear and convincing evidence
establishing that either Horizon or Oney acted with the requisite subjective awareness or
conscious indifference. See TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(11); see also Waldrip,
380 S.W.3d at 137. Absent clear and convincing evidence establishing gross negligence, the
record fails to support an award of exemplary damages. See TEX. CIV. PRAC. & REM. CODE
§ 41.003(a)(3) (West 2015). Thus, we sustain issues four, five, and six.
PROPORTIONATE RESPONSIBILITY
In issue seven, Horizon maintains that the trial court failed to comply with section
33.003(a)(2) of the Texas Civil Practice and Remedies Code by excluding Horizon from the
proportionate responsibility question presented to the jury.1
Standard of Review
We review complaints regarding charge error for abuse of discretion. Thota v. Young,
366 S.W.3d 678, 687 (Tex. 2012). We will not reverse a judgment for charge error unless the
error was harmful. Id.; TEX. R. APP. P. 44.1(a).
Analysis
Question one of the jury charge asked the jury to find whether Oney, Horizon, and
Marshall were negligent. Question two asked the jury what percentage of negligence was
attributable to Oney and Marshall, but did not include Horizon.2 On appeal, Horizon contends
that the trial court abused its discretion by failing to include Horizon in question two. The Crists
contend that Horizon failed to preserve issue seven for appellate review.
However, we need not determine whether error was preserved or whether the jury charge
was erroneous. As previously discussed, the evidence does not support Horizon’s independent
liability for negligent entrustment. Thus, all that remains is its vicarious liability. Determining
1
Section 33.003 provides, in pertinent part, that the trier of fact, as to each cause of action asserted, shall
determine the percentage of responsibility with respect to each defendant’s causing or contributing to cause in any
way the harm for which recovery of damages is sought. TEX. CIV. PRAC. & REM. CODE ANN. § 33.003(a)(2) (West
2015).
2
Having declined to find Marshall negligent, the jury did not answer question two.
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the applicable percentage of liability does not apply to a defendant who is vicariously liable.
Pierre v. Swearingen, 331 S.W.3d 150, 154 (Tex. App.—Dallas 2011, no pet.); see Pilgrim’s
Pride Corp. v. Burnett, No. 12-10-00037-CV, 2012 WL 381714, at *7 (Tex. App.—Tyler Feb.
3, 2012, no pet.) (mem. op.) (stating that submission of the employer’s negligence is improper
when the sole basis for its liability is vicarious). Because we have already concluded that
Horizon’s sole basis for liability is vicarious, we need not determine whether the trial court
abused its discretion by excluding Horizon from the proportionate responsibility question in the
jury charge. See TEX. R. APP. P. 47.1. We overrule Horizon’s seventh issue.
JOINT AND SEVERAL LIABILITY
In issue eight, Horizon argues that the jury’s verdict fails to support joint and several
liability because (1) the jury was not asked to apportion fault between Oney and Horizon; and (2)
Oney is not responsible for any negligence committed by Horizon.
Analysis
Oney and Horizon stipulated that Oney was an employee of Horizon and was acting in
the course and scope of his employment with Horizon when the accident occurred. Given that
Horizon is not independently liable under a negligent entrustment theory, its sole liability is
vicarious. “[V]icarious liability is joint and several.” AAMCO Transmissions, Inc. v. Bova,
484 S.W.3d 520, 525 (Tex. App.—Houston [1st Dist.] 2016, no pet.). Because Horizon is
vicariously liable for Oney’s negligence, the trial court did not err by holding Oney and Horizon
jointly and severally liable. See Leyendecker & Assoc., Inc. v. Wechter, 683 S.W.2d 369, 375
(Tex. 1984) (stating that appellate court correctly affirmed judgment holding employee and
employer jointly and severally liable for actual damages from libelous letter written by employee
in course of employment); see also Bova, 484 S.W.3d at 525; Pierre, 331 S.W.3d at 154-55. We
overrule issue eight.
EXPERT TESTIMONY
In issue nine, Horizon contends that Dr. Calodney’s testimony regarding Heather’s need
for neurotomies, stem cell injections, and topical cream is unreliable and conclusory. Thus,
according to Horizon, Dr. Calodney’s testimony was legally insufficient.
11
Standard of Review and Applicable Law
We review a trial court’s ruling on the admission of expert testimony for abuse of
discretion. Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex. 2009). “[A] party may
assert on appeal that unreliable scientific evidence or expert testimony is not only inadmissible,
but also that its unreliability makes it legally insufficient to support a verdict.” Id. “[I]n a no-
evidence review we independently consider whether the evidence at trial would enable
reasonable and fair-minded jurors to reach the verdict.” Id. A no-evidence review
“encompasses the entire record, including contrary evidence tending to show the expert opinion
is incompetent or unreliable.” Id.
When determining whether an expert’s opinion is reliable, we consider several factors:
(1) the extent to which the theory has been or can be tested; (2) the extent to which the technique
relies upon the expert’s subjective interpretation; (3) whether the theory has been subjected to
peer review and/or publication; (4) the potential rate of error; (5) whether the underlying theory
or technique has been generally accepted as valid by the relevant scientific community; and (6)
the nonjudicial uses that have been made of the theory or technique. E.I. du Pont de Nemours
& Co. v. Robinson, 923 S.W.2d 549, 556 (Tex.1995). We also consider the expert’s experience,
knowledge, and training. Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 215-16 (Tex. 2010).
The reliability factors are non-exclusive and the inquiry is flexible. Robinson, 923 S.W.2d at
557.
Expert testimony is also unreliable when there is too great an analytical gap between the
data on which the expert relies and the opinion offered by the expert. Gharda USA, Inc. v.
Control Solutions, Inc., 464 S.W.3d 338, 349 (Tex. 2015). “Whether an analytical gap exists is
largely determined by comparing the facts the expert relied on, the facts in the record, and the
expert’s ultimate opinion.” Id. Analytical gaps may arise when the expert unreliably applies
otherwise sound principles and methodologies, the expert’s opinion is based on assumed facts
that vary materially from the record, or the expert’s opinion is based on tests or data that do not
support the conclusions reached. Id. An expert’s testimony is conclusory when there is no basis
for the expert’s opinions or the basis offered provides no support for the expert’s opinions. City
of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009).
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Analysis
In a motion in limine, Horizon challenged Dr. Calodney’s testimony regarding future
medical treatment using stem cell injections and repeat radiofrequency neurotomies on grounds
of unreliability. After a Daubert hearing, the trial court ruled that Dr. Calodney could testify as
to these subjects. The record does not indicate that Horizon challenged the reliability of Dr.
Calodney’s testimony on the issue of topical pain cream. See Coastal Transp. Co. v. Crown
Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004) (“when a reliability challenge requires
the court to evaluate the underlying methodology, technique, or foundational data used by the
expert, an objection must be timely made so that the trial court has the opportunity to conduct
this analysis”). Thus, our review regarding the pain cream is limited to whether Dr. Calodney’s
testimony is conclusory. See id.
At trial, Dr. Calodney testified that Heather uses a topical pain cream, which contains a
muscle relaxant, local anesthetic, and an anti-inflammatory. Dr. Candido testified that he
disagreed with the treatment because the cream is not FDA approved, is for short-term use in
patients who cannot use oral medication, is not evidence based, and has not been studied or peer-
reviewed. Heather, however, testified that she uses the cream daily and benefits from that use.
Even without Dr. Calodney’s testimony, Heather was qualified to offer testimony as to her own
health and her need for the cream. See Mo. Pac. R.R. Co. v. Robison, 25 S.W.3d 251, 260 (Tex.
App.—Beaumont 2000, no pet.) (stating that a jury may choose to be guided by expert testimony
regarding future medical damages, but is not bound by it); see also City of San Antonio v. Vela,
762 S.W.2d 314, 321 (Tex. App.—San Antonio 1998, writ denied).
Regarding the neurotomies and stem cell injections, we conclude that Dr. Calodney’s
testimony was reliable and legally sufficient for several reasons. First, Dr. Calodney’s opinions
were not formed solely for the purpose of testifying. Rather, his opinions were developed for the
purpose of treating his patients, the Crists. See Crump, 330 S.W.3d at 217 (stating that treating
physician’s diagnostic methodology had non-judicial uses because it was used to treat his
patient); see also Robinson, 923 S.W.2d at 559 (stating that “opinions formed solely for the
purpose of testifying are more likely to be biased toward a particular result”).
Second, the record is not limited to Dr. Calodney’s subjective opinions. At the Daubert
hearing, Dr. Calodney disagreed that neurotomies and stem cell injections have not gained
general acceptance in the medical community. He testified that stem cell injections are generally
13
accepted among spine specialists, and that evidence supports the use of stem cells to treat the
intervertebral disc. He admitted that the use of stem cell injections for back pain is not FDA
approved and that there is no protocol for repeated injections. However, he did not view the
injections as experimental because not all treatments are FDA approved or have set protocols.
Dr. Calodney testified that he had not published his own data, but a published paper by
Ken Pettine showed that over a two year period, patients received an initial injection,
experienced some relief, and benefited from an additional injection. He testified that this study
conducted stem cell counts on each patient. He explained that doctors have a good idea as to how
many stem cells a patient’s bone marrow aspirate may contain based on the patient’s age. He
testified that the Pettine study, along with studies by Orozco, Mesoblast (an FDA sanctioned
study), and EuroDISC, show quantifiable results. He further testified that an animal study by the
Mayo clinic revealed “increase in disci . . . [and] signal intensity change within the disc.” He had
not seen studies beyond a two or three year period.
Dr. Calodney classified the neutotomy as an evidence based treatment because it is the
“standard of care around the world to use radiofrequency ablation to treat the lumbar posterior
elements.” He explained that there is an acceptable range among the medical community
regarding the length of time that a neurotomy lasts before needing to be repeated, i.e., six to
eighteen months. He testified that a neurotomy can be repeated if necessary and that
…the efficacy of repeat radiofrequency ablation has been studied, and it’s about 85 percent. So
almost nine out of ten people that get [a] good result from it the first time, will continue to get a
good result if the procedure is repeated.
Specifically, Dr. Calodney cited a publication by Jerome Schofferman that demonstrates that
eighty-five percent of patients had initial success and continued success with repeated
neurotomies. He stated that the publication indicates patients had seven or eight procedures. He
added that “it’s the standard of care around the United States to repeat radiofrequency neurotomy
at whatever interval is necessary to keep the patient pain-free.” Accordingly, the record contains
evidence indicating that both neurotomies and stem cell injections have been independently
tested, peer-reviewed, and accepted within the relevant medical community.
Third, Dr. Calodney has extensive experience, knowledge, and training with regard to
patients who suffer from spinal injuries and related pain. At the Daubert hearing, Dr. Calodney
14
identified himself as an interventional pain management physician and a twenty-four-year
member of a neurosurgical practice that treats a variety of spinal injuries. He lectures on
regenerative medicine, including stem cell injections and neurotomies, and has written on the
subject of neurotomies. Dr. Calodney testified that his experience, combined with scientific
literature, demonstrates that regenerative procedures are simple and can be very effective.
Dr. Calodney has utilized stem cell injections for approximately a decade in his own
practice. He has observed how the injections have helped patients, and is aware of the length of
time for which the injections provide relief. He admitted that not every patient responds to
treatment, but that medical evidence shows that the “use of mesenchymal stem cell in the
treatment of the intervertebral disc is efficacious both in restoring function as well as in
decreasing pain.” He identified a success rate of seventy to seventy-five percent, based on his
patients’ functionality before and after the injections, degree of pain, use of pain medication,
physical examinations, and preclinical and laboratory work.
He further testified to treating his patients with neurotomies and explained as follows:
We know that when we treat the medial branch nerve with radiofrequency neurotomy, that the
nerve regenerates after a point of time. Whether that’s six months -- three to six months, as Dr.
Candido said; typically we get at least a year. So to opine that we’re going to repeat it in 18
months is logical based upon the lesion that is made by the procedure and the recovery time of the
nerve from the procedure. It’s logical, and it works again when we repeat the procedure.
He testified that those patients have been successfully treated for fifteen or more years and have
benefitted from repeated neurotomies. He stated that these patients are able to play with their
children and grandchildren, play golf, return to work, avoid taking medication, and do what that
they want to do despite their injuries.
Finally, Dr. Calodney provided a factual basis to support his opinions. He told the jury
that, based on an MRI, Heather suffered from an annular fissure at the L4-5 disc and a smaller
tear at the L5-S1 disc. A subsequent MRI revealed a protrusion at the L3-4 and L4-5 discs. He
explained that the outer portion of the disc has several nerve endings and that a tear can be
painful because discs are like shock absorbers, meaning that daily activities pressurize the disc
and cause the tear to open and close. Thus, the pain from Heather’s injuries is the type that
fluctuates, as certain activities may exacerbate the injuries.
15
He testified that Heather initially underwent noninvasive treatments, such as medication
and chiropractic care. When her condition did not improve, they utilized more invasive
treatments, including a neurotomy. Dr. Calodney testified that a neurotomy typically provides
longer periods of relief, lasting six to eighteen months. He explained that the procedure treats
the small joints located at the back of the spine. During a neurotomy, a needle is placed adjacent
to the problematic joint, and the nerve, known as a medial branch, is treated with a rapid,
alternating current of radio frequency. He testified that the frequency causes molecules near the
tip of the needle to create friction, which generates the heat that modulates and blocks the nerve.
Dr. Calodney testified that radio frequency is used to treat a variety of medical conditions, such
as heart arrhythmias. He explained, “We are able to take the pain away from the joint by
blocking that nerve over a period of about a year with radiofrequency ablation.”
Dr. Calodney testified that, although the neurotomy did not completely alleviate
Heather’s pain, she received significant relief, such that she could return to some of her previous
activities. Heather testified that she received greater relief from the neurotomy than any other
treatment. Dr. Calodney testified that repeating the neurotomy every eighteen months for
someone who has responded to a previous neurotomy is a conservative projection.
The jury heard evidence that even Dr. Candido supported a limited use of neurotomies.
Dr. Candido testified that a neurotomy typically lasts three to six months, and sometimes nine to
fifteen months. He admitted performing neurotomies on patients with the same complaints as
the Crists. He explained that there is no evidence based medicine that shows a patient requires
such treatments over a prolonged period. However, he believed that if a patient had benefitted
from a neurotomy, the patient could undergo three or four procedures, but not in perpetuity.
Regarding stem cell injections, Dr. Calodney explained that a patient’s bone marrow,
which contains the stem cells, is drawn, concentrated, and injected into the patient’s discs. He
testified that these stem cell treatments are used in sports medicine and are common treatments
for musculoskeletal injuries. Dr. Calodney admitted that stem cell injections are not FDA
approved, but that they are not considered experimental in the community of spine specialists.
He referred to Pettine’s 2015 study that utilized the treatment over a two to three year period. He
explained that stem cell injections are an up-and-coming therapy and help treat the painful
intervertebral disc.
16
Dr. Calodney also identified a simpler alternative, platelet-rich plasma, which involves
taking the patient’s plasma and concentrating it. He testified that the plasma contains proteins,
cytokines, and platelet granules, which allow the body to heal itself. The platelet mixture is then
used to treat a variety of musculoskeletal issues, including discs. He described the procedure as
planting a seed in a garden and explained that it takes two to three months to see a difference
because the body has to actually change in response to the injection. He testified that Heather
would first try the platelet-rich plasma treatment. The stem cell treatment would likely follow.
Although Heather had not received a stem cell injection at the time of trial, Chip testified
that he had received an injection. He testified that the injection took some time to reveal results,
but that he did experience some relief from the injection. He later received a second injection
and the results were “pretty good.”
Dr. Candido testified that stem cell injections are not evidence-based medicine or FDA
approved, and are experimental. He explained that there are no studies that have been conducted
to compare a stem cell group with a placebo group, and there is no hardcore evidence showing
that the injections make a difference. He explained that the spine contains no nourishment for
the cells because there is no oxygen or glucose in the disc, and the blood flow in the disc is poor.
He added that the spine is always mobile, so it is an unfavorable environment for stem cells.
Thus, he does not use stem cell injections to treat discs. Nevertheless, he believed that it was not
unreasonable to try the treatment. He disagreed with using the injections on a repeated basis.
Based on our review of the record, we conclude that Dr. Calodney’s testimony regarding
the reasonableness and necessity of the challenged treatments is based on a sufficiently reliable
foundation under the Robinson factors and the analytical gap test. See Crump, 330 S.W.3d at
220. Dr. Calodney’s testimony was not required to be conclusive. See id. at 218. Once the
evidence was admitted, any “gaps” that remained between the data and the conclusions drawn
from it went to the weight of Dr. Calodney’s testimony, not its reliability. See id. at 220.
As fact finder, the jury was entitled to consider the competing expert opinions and to
decide which testimony to credit. See Morrell v. Finke, 184 S.W.3d 257, 282 (Tex. App.—Fort
Worth 2005, pet. denied) (stating that “[i]n a battle of competing experts, it is the sole obligation
of the jury to determine the credibility of the witnesses and to weigh their testimony.”). In doing
so, the jury could reasonably conclude that Heather would benefit from repeated neurotomies,
particularly in light of evidence that patients with spinal injuries had experienced relief from
17
repeated neurotomies, according to both Dr. Calodney and other studies. The jury also heard
Heather’s own testimony that she had received relief from the treatment in the past.
Additionally, the jury was entitled to credit Dr. Calodney’s testimony that stem cell injections
could be used to treat painful spinal injuries and to reject contrary testimony. This is especially
true given Chip’s testimony that the treatment had offered him some relief in the past and Dr.
Candido’s own admission that it was not unreasonable to try the treatment. And, as previously
stated, the jury could rely on Heather’s testimony regarding the benefits of the pain cream. See
Robison, 25 S.W.3d at 260; see also Vela, 762 S.W.2d at 321. Thus, viewing the evidence in the
light most favorable to the jury’s verdict, we conclude that reasonable and fair-minded jurors
could have reached the verdict under review. See Camacho, 298 S.W.3d at 638; Wilson, 168
S.W.3d at 827. We overrule issue nine.
AMOUNT OF DAMAGES
In issue ten, Horizon contends that the evidence is legally and factually insufficient to
support the jury’s award of future medical damages. Specifically, Horizon complains that the
jury awarded more in damages than Dr. Calodney testified was reasonable and necessary.3
Applicable Law
To be entitled to damages for future medical care, a plaintiff must show a reasonable
probability that such medical expenses will be incurred in the future. Antonov v. Walters, 168
S.W.3d 901, 908 (Tex. App.—Fort Worth 2005, pet. denied). A jury may award damages for
future medical care based on the nature of the plaintiff’s injuries, medical care rendered before
trial, and the plaintiff’s condition at the time of trial. Id. “An award of future medical expenses
lies largely 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.
3
Embedded in its argument that the future damages awards are not supported by the evidence, Horizon
briefly states “no evidence supports the jury’s award of past and future damages.” Horizon provides no analysis
regarding the awards for past damages. Accordingly, we do not construe issue ten as including a challenge to the
jury’s awards of past damages. See TEX. R. APP. P. 38.1(i); see also ERI Consulting Eng’rs, Inc. v. Swinnea, 318
S.W.3d 867, 880 (Tex. 2010) (“The Texas Rules of Appellate Procedure require adequate briefing[]”); In re
Guardianship of Allen, No. 12-14-00249-CV, 2015 WL 7280894, at *4 (Tex. App.—Tyler Nov. 18, 2015, no pet.)
(mem. op.).
18
Analysis
Dr. Calodney testified to $266,697 in future medical care for Heather and $317,752 for
Chip. However, the jury awarded $300,000 to Heather and $334,146 to Chip in future medical
damages. Although these amounts exceed Dr. Calodney’s projections, the jury could reasonably
conclude that the Crists’ injuries, medical care they received before trial, and their conditions at
the time of trial justified awards in excess of the amounts testified to by Dr. Calodney. See id.
Specifically, Heather testified that she feels back pain daily. On a good day, her pain
level is three to four, and seven to nine on a bad day. She believed that, as a whole, her
condition has declined. Chip likewise believed that his condition had grown worse. He
described his pain level as a two or three on a good day, and an eight or nine on a bad day. Both
Dr. Calodney and Dr. Candido believed that the Crists’ conditions are chronic and they will
likely experience pain for the remainder of their lives. Additionally, the jury heard evidence that,
although Dr. Calodney limited his testimony to fifteen years, the Crists’ life expectancy exceeds
fifteen years. Dr. Candido agreed that fifteen years was a conservative estimate.
The jury also heard Dr. Calodney testify that his projections for future medical care were
based on current costs and were probably too low. Dr. Calodney explained that the surgery he
recommended for Chip would not be a one-hundred percent cure. He testified that there is a
sixty percent chance of a need for another surgery, which he did not include in his projections.
Regarding Heather, Dr. Calodney testified that
. . . it’s not like at 15 years a light switch is going to go off and she’s going to stop having
problems. But it’s hard to accurately project beyond a 15-year time frame, although I do agree
with Dr. Candido in that she’s more likely than not going to have problems due to this for the rest
of her life.
When asked whether the Crists would be able to function at the same level without future
treatment, Dr. Calodney responded that it would be impossible. Dr. Candido agreed that the
Crists would need future treatment.
No precise evidence is required to support a jury’s award of future medical damages, and
the jury was not bound by the expert testimony when determining the amount to award. See
Vela, 762 S.W.2d at 321. The jury was entitled to take the nature and extent of the Crists’
injuries into account, as well as their progress toward recovery, the reasonable cost of past
treatment, and their physical conditions at trial. See Antonov, 168 S.W.3d at 908; see also Vela,
19
762 S.W.2d at 321. The jury could reasonably conclude that uncertain medical costs, the Crists’
chronic conditions, and the Crists’ life expectancy necessitated greater medical care than that
described by Dr. Calodney. Accordingly, the jury was within its discretion to determine that the
Crists’ need for future medical treatment and the reasonable cash value of such treatment and
expense exceeded that testified to by Dr. Calodney. See Antonov, 168 S.W.3d at 908; see also
Vela, 762 S.W.2d at 321.
Viewing the evidence in the light most favorable to the verdict, we conclude that the
evidence is legally sufficient to support the jury’s awards of future medical damages. See
Wilson, 168 S.W.3d at 824. The awards are not so against the great weight and preponderance
of the evidence as to be clearly wrong and unjust. See id. at 826. We overrule issue ten.
CONCLUSION
Having sustained issues four, five, and six, we reverse the judgment as to the Crists’
claims for negligent entrustment, gross negligence, and exemplary damages, and render
judgment that the Crists take nothing on those claims. Having overruled Horizon’s other issues,
we affirm the trial court’s judgment in all other respects.
GREG NEELEY
Justice
Opinion delivered March 15, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
20
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MARCH 15, 2017
NO. 12-16-00045-CV
JEREMY ONEY AND HORIZON CABLE SERVICE, INC.,
Appellants
V.
WILLIAM CRIST AND HEATHER CRIST,
Appellees
Appeal from the 124th District Court
of Gregg County, Texas (Tr.Ct.No. 2013-1615-B)
THIS CAUSE came to be heard on the oral arguments, appellate record
and the briefs filed herein, and the same being considered, because it is the opinion of this court
that there was error in the judgment of the court below, it is ORDERED, ADJUDGED and
DECREED by this court that the judgment as to the claims of WILLIAM CRIST AND
HEATHER CRIST, Appellees, for negligent entrustment, gross negligence, and exemplary
damages be reversed and judgment is rendered that Appellees take nothing on those claims.
The trial court’s judgment is affirmed in all other respects. It is further ORDERED ADJUDGED
and DECREED that all costs of this appeal are hereby adjudged against the Appellants,
JEREMY ONEY AND HORIZON CABLE SERVICE, INC.; and that this decision be
certified to the court below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.