Eboni Ivory Hills v. Carlos Donis ( 2020 )

Reversed and Rendered and Memorandum Opinion filed January 14, 2020.
In The
Fourteenth Court of Appeals
NO. 14-18-00566-CV
EBONI IVORY HILLS, Appellant
V.
CARLOS DONIS, ET AL., Appellees
On Appeal from the 11th District Court
Harris County, Texas
Trial Court Cause No. 2016-38471
MEMORANDUM OPINION
This is a personal injury case arising from an automobile accident. On
appeal, Eboni Ivory Hills challenges the trial court’s judgment in favor of appellees
Carlos Donis, Calixto Donis, Victor Matamoros, and Saira Castellanos, both in her
individual capacity and as next friend of S.D., a minor1 (collectively the “Donis
Parties”). Hills asserts the Donis Parties failed to present legally and factually
1
Initials are used for the privacy protection of a minor. See Tex. R. App. P. 9.9(a)(3).
sufficient evidence to support their negligence claims. Because we conclude expert
medical testimony was required to establish the Donis Parties’ diagnosed injuries were
caused by the automobile accident, and because the Donis Parties presented no such
evidence, we reverse and render.
I. Background
On July 6, 2014, Carlos Donis was driving his car south on I-45, in Houston,
Texas, around 4:00 p.m. It was raining and the freeway was congested with traffic.
Calixto Donis, Victor Matamoros, Saira Castellanos, and S.D. were passengers in
Carlos’s car. Richard Morehouse was driving his vehicle behind Carlos’s vehicle.
There was standing water on the highway, which caused Carlos to slow down or
stop.
Hills was entering I-45 behind a vehicle that blocked her view of Carlos’s
and Morehouse’s vehicles. According to her testimony, a vehicle in front of Hills
“jolt[ed] into traffic,” and Hills applied her brakes, but did not have enough time to
stop before hitting the back-right-side of Morehouse’s car, and then ricocheting
into the back of Carlos’s vehicle.
Hills’s car was totaled. Morehouse’s vehicle sustained substantial damage,
but there was minimal damage to the rear of Carlos’s vehicle. No airbags deployed
in any of the vehicles.
After the accident, none of the parties involved requested or left in an
ambulance. No one went to the emergency room. No one was bleeding, had
bruises, scrapes, cuts, or broken bones. Carlos drove his car home with all
passengers.
On June 7, 2016, the Donis Parties filed this negligence suit, seeking
damages for physical pain, mental anguish, medical expenses, loss of earnings, and
2
loss of enjoyment of life. On May 17, 2018, the case was called to trial. The
parties waived their right to a jury trial. The trial court heard testimony from
several witnesses, including Hills, Morehouse, and all the Donis Parties.
Morehouse testified the impact jolted him around in the car and he felt
immediate head and neck pain. He did not follow-up with any healthcare provider
because the pain went away after about a day or two. He stated he did not have any
long-term injuries.
The Donis Parties maintain that the accident caused substantial soft tissue
injuries to each occupant of the vehicle. Each of the Donis Parties testified at trial.
Carlos
Carlos testified that he suffered pain because of the accident, stating “It’s
difficult for me to —to move around to the right or to the left.” Medical bills
admitted into evidence in the amount of $48,906.00 included diagnoses of cervical
radiculitis, lumbar radiculitis, thoracalgia, cervical intervertebral disc (“IVD”)
displacement without myelopathy, lumbar IVD displacement without myelopathy,
cervical discogenic pain, lumbar discogenic pain, disc herniation, cervical disc
disorder, and lumbar disc disorder.
Calixto
Calixto testified he was injured in the accident in his lower back and part of
his neck. Medical bills admitted into evidence in the amount of $48,676.00
included diagnoses of cervical radiculitis, lumbar radiculitis, thoracalgia, cervical
IVD displacement without myelopathy, lumbar IVD displacement without
myelopathy, thoracic IVD displacement without myelopathy, cervical discogenic
pain, lumbar discogenic pain, disc herniation, cervical disc disorder, and thoracic
disc disorder.
3
Victor
Victor testified that he had injuries after the accident and that he cannot
muster strength to lift things that weigh 50 or 60 pounds. Medical bills admitted
into evidence in the amount of $41,633.00 included diagnoses of cervical
radiculitis, lumbar radiculitis, thoracalgia, cervical IVD displacement without
myelopathy, lumbar IVD displacement without myelopathy, cervical discogenic
pain, lumbar discogenic pain, cervical disc disorder and lumbar disc disorder.
Saira
Saira testified that she had pain in her left ankle after the accident and cannot
go out for walks or wear shoes with high heels. Medical bills admitted into
evidence in the amount of $5,960.00 included diagnoses of cervical radiculitis, and
lumbar radiculitis.
Saira As Next Friend of S.D.
Saira testified that S.D. did not complain of pain. Medical bills admitted
into evidence in the amount of $285.00 included diagnoses of lumbalgia and
muscle spasms.
Damages Sought at Trial
At trial, the Donis Parties did not seek damages for lost wages, mental
anguish, or pain and suffering. They only requested reimbursement of their
medical bills in the approximate amount of $248,000.00.
On May 18, 2018, the trial court issued a Final Judgment in favor of the
Donis Parties. The trial court awarded each party past medical expenses as follows:
Carlos Donis - $48,906.00
Calixto Donis — $48,676.00
Victor Matamoros — $41,633.00
4
Saira Castellanos, individually — $5,960.00
Saira Castellanos, as next friend of S.D. — $285.00
The total award for past medical expenses for all parties was $145,460.00.
Also, on May 18, 2018, the trial court filed Findings of Fact and
Conclusions of Law.2 Hills filed a motion for new trial, which was denied. This
appeal timely followed.
II. Analysis
In two issues, Hills attacks the judgment because appellees failed to present
any legally or factually sufficient expert testimony demonstrating that the July 6,
2014 automobile accident proximately caused the soft tissue injuries about which
the Donis Parties complain.
A. Standard of Review
In a nonjury trial, findings of fact have the same force and dignity as a jury’s
verdict. Green v. Alford, 274 S.W.3d 5, 23 (Tex. App.—Houston [14th Dist.] 2008,
pet. denied). When a complete reporter’s record is filed, as here, we may review
the trial court’s findings of fact for legal and factual sufficiency under the same
standards we apply to jury verdicts. See id. (citing Ortiz v. Jones, 917 S.W.2d 770,
772 (Tex. 1996) (per curiam)).
In conducting a sufficiency review, we consider the evidence in the light
most favorable to the challenged findings and indulge every reasonable inference
that supports the findings. George Joseph Assets, LLC v. Chenevert, 557 S.W.3d
755, 765 (Tex. App.—Houston [14th Dist.] 2018, pet. denied). The evidence is
2
The record, however, contains only the second page of the trial court’s Findings of Fact
and Conclusions of Law. The Donis Parties filed a Motion to Correct Clerical Error by
Judgment Nunc Pro Tunc on April 22, 2019, which was denied by the trial court. Appellees
attached to their appellate brief, as an exhibit, the alleged missing page. This page, however, is
not part of the appellate record and, as such, is not properly before us for consideration.
5
legally sufficient if it would enable reasonable and fair-minded people to reach the
decision under review. Id. We credit favorable evidence if a reasonable factfinder
could, and disregard contrary evidence unless a reasonable fact-finder could not.
Id. When appellant attacks a finding on an issue on which she did not have the
burden of proof, appellant must demonstrate that no evidence supports the adverse
finding. Id. Evidence is legally insufficient to support a finding when (1) the record
bears no 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 conclusively establishes the opposite of a vital fact. Id.
In reviewing the factual sufficiency of the evidence, we examine the entire
record, considering both the evidence in favor and contrary to the challenged
findings. Chenevert, 557 S.W.3d at 765. We may set aside the verdict for factually
insufficient evidence only if the verdict is so contrary to the overwhelming weight
of the evidence as to be clearly wrong and unjust. Id. The party asserting that the
evidence is factually insufficient must establish that the finding is against the great
weight and preponderance of the evidence. Id. In assessing the evidence, we do not
act as factfinder in that we may not pass on the credibility of the witnesses or
substitute our judgment for that of the factfinder. Id. Instead, the trial court, as the
trier of fact in this case, is the “sole judge of the credibility of the witnesses and the
weight to afford their testimony.” Id.
B. Evidence of Causation
Establishing causation in a personal injury case requires a plaintiff to “prove
that the conduct of the defendant caused an event and that this event caused the
6
plaintiff to suffer compensable injuries.”3 JLG Trucking, LLC v. Garza, 466
S.W.3d 157, 162 (Tex. 2015) (quoting Burroughs Wellcome Co. v. Crye, 907
S.W.2d 497, 499 (Tex. 1995)). Thus, “when an accident victim seeks to recover
medical expenses, she must show both ‘what all the conditions were’ that
generated the expenses and ‘that all the conditions were caused by the accident.’”
Id. (quoting Guevara v. Ferrer, 247 S.W.3d 662, 669 (Tex. 2007)).
Expert testimony is generally necessary to establish causation of medical
conditions that are “outside the common knowledge and experience of jurors.” See
Guevara v. Ferrer, 247 S.W.3d 662, 665 (Tex. 2007). In limited cases, however,
lay testimony may support a causation finding that links an event with a person’s
physical condition. Id. at 666. “This exception applies only in those cases in
which general experience and common sense enable a layperson to determine the
causal relationship with reasonable probability.” Kelley v. Aldine Indep. Sch. Dist.,
No. 14-15-00899-CV, 2017 WL 421980, at *2 (Tex. App.—Houston [14th Dist.]
Jan. 31, 2017, pet. denied) (citing Guevara, 247 S.W.3d at 666; Morgan v.
Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984)). In such cases, “lay
testimony establishing a sequence of events which provides a strong, logically
traceable connection between the event and the condition is sufficient proof of
causation.” Id. (quoting Morgan, 675 S.W.2d at 733).
The Donis Parties argue that their lay testimony regarding the pain they
experienced due to the accident is sufficient to support a causation finding that
links the automobile accident on July 6, 2014, with their diagnosed conditions.
This case does not fall within the kinds of “basic” injuries identified in Guevara in
3
Otis Spunkmeyer, Inc. v. Blakely, 30 S.W.3d 678, 684 (Tex. App.—Dallas 2000, no
pet.) (In a typical negligence case, “the plaintiff must establish two causal nexuses: (1) between
the defendant’s negligent act and the occurrence; and (2) between the occurrence and the injuries
of which the plaintiff complains.”).
7
which expert testimony regarding the causal connection between an occurrence
and a physical condition is unnecessary. 247 S.W.3d at 667. The Donis Parties
were not pulled from a damaged vehicle with “overt injuries” such as broken bones
or lacerations, nor did they experience objective physical symptoms, such as
crumbling teeth, shortly after the accident.
Rather, the types of injuries for which the Donis Parties sought
compensation—i.e., cervical radiculitis, lumbar radiculitis, thoracalgia, cervical
IVD displacement, lumbar IVD Displacement, thoracic IVD displacement, cervical
discogenic pain, lumbar discogenic pain, disc herniation, cervical disc disorder,
lumbar disc disorder, thoracic disc disorder, and lumbalgia—are neither common
nor basic. See Guevara, 247 S.W.3d at 669–70; Kelley, 2017 WL 421980, at *4;
City of Laredo v. Garza, 293 S.W.3d 625, 632–33 (Tex. App.—San Antonio 2009,
no pet.) (determining that lay testimony alone was not sufficient to prove medical
causation of disc herniations and radiculopathy). Thus, this case is not one in
which general experience and common sense enable a layperson to determine the
causal relationship with reasonable probability. The Donis Parties needed expert
testimony to establish a causal connection between the accident and their claimed
injuries. Guevara, 247 S.W.3d at 669–70; Kelley, 2017 WL 421980, at *4; Garza,
293 S.W.3d at 632–33; cf. Humphrey v. AIG Life Ins. Co., No. 14–08–00793–CV,
2010 WL 2635643, at *5 (Tex. App.—Houston [14th Dist.] Jul. 1, 2010, pet.
denied) (concluding that expert testimony was necessary to establish that disc
herniations and lumbar radiculopathy were “solely and directly” caused by an on-
the-job back injury).
Next, the Donis Parties argue that the uncontroverted medical records and
billing affidavits provide factually and legally sufficient evidence to support the
judgment. The issue is not the reasonableness or necessity of any medical
8
expense; rather, the issue is whether the medical expenses incurred were
proximately caused by the automobile accident. Haygood v. De Escobedo, 365
S.W.3d 390, 397 (Tex. 2011) (Section 18.001 is “purely procedural, providing for
the use of affidavits to streamline proof of the reasonableness and necessity of
medical expenses.”). “Section 18.001 affidavits do not, however, establish the
requisite causal link between the occurrence and the plaintiff’s medical expenses.”
Gunn v. McCoy, 489 S.W.3d 75, 102 (Tex. App.—Houston [14th Dist.] 2016,
aff’d, 554 S.W.3d 645 (Tex. 2018); Burroughs Wellcome Co. v. Crye, 907 S.W.2d
497, 500 (Tex. 1995) (mere recitations of medical history are not independent
opinions on causation). “[T]he bills are not evidence of what the conditions were
nor that all the conditions were caused by the accident.” Guevara, 247 S.W.3d at
669.
To the extent the Donis Parties point to Dr. Jeffrey Reuben’s opinions (set
forth in various letters or contained in statements within the billing records) as
evidence of causation, the opinions expressed in Dr. Rueben’s letters constitute no
evidence upon which the trial court’s judgment could be based. To constitute
competent evidence of causation, a medical expert’s opinion must be reliable and
rest in reasonable medical probability. Crye, 907 S.W.2d at 500. “This rule
applies whether the opinion is expressed in testimony or in a medical record, as the
need to avoid opinions based on speculation and conjecture is identical in both
situations.” Id. Dr. Reuben’s opinions are not competent evidence of causation
because his opinions are conclusory. An expert’s bare proclamation that this one
event caused another is not enough to establish causation; “the expert must go
further and explain, to a reasonable degree, how and why the breach caused the
injury based on the facts presented.” Jelinek v. Casas, 328 S.W.3d 526, 539–40
(Tex. 2010). Dr. Reuben’s letters do not provide any data or facts from which Dr.
9
Reuben could have formed an opinion that the diagnosed injuries were caused by a
motor vehicle accident. Absent such facts, Dr. Reuben’s letters are unreliable
speculation, which we conclude does not constitute evidence in support of the trial
court’s judgment. See id. at 532 (“When the evidence offered to prove a vital fact
is so weak as to do no more than create a mere surmise or suspicion of its
existence, the evidence is no more than a scintilla and, in legal effect, is no
evidence.”).
As plaintiffs, the Donis Parties bore the burden to prove that their damages
were proximately caused by the automobile accident. See Doe v. Boys Clubs of
Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). It is undisputed that the
Donis Parties presented no expert testimony establishing that the automobile
accident was a proximate cause of their diagnosed injuries (i.e., cervical radiculitis,
lumbar radiculitis, thoracalgia, cervical IVD displacement, lumbar IVD
Displacement, thoracic IVD displacement, cervical discogenic pain, lumbar
discogenic pain, disc herniation, cervical disc disorder, lumbar disc disorder,
thoracic disc disorder, and lumbalgia). We conclude expert medical testimony was
required to establish a nexus between the accident and the Donis Parties’ claimed
injuries, and none was provided. As such, the trial court erred in granting
judgment in their favor.
Accordingly, because the Donis Parties did not meet their burden of proof to
show causation, we have no choice but to conclude the evidence is legally
insufficient. Hills’s first issue is sustained.4
4
Because we have sustained Hills’s legal sufficiency challenge, we find it unnecessary to
address Hills’s remaining issue. See Tex. R. App. P. 47 .1.
10
III. Conclusion
We reverse the trial court’s judgment and we render the following judgment:
the Donis Parties take nothing on their claims against Hills.
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Justices Wise, Jewell, and Poissant.
11