in Re Chase Talbot ( 2021 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-21-00008-CV
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IN RE CHASE TALBOT
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Original Proceeding
136th District Court of Jefferson County, Texas
Trial Cause No. D-199,314
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MEMORANDUM OPINION
Chase Talbot seeks mandamus relief from a post-verdict order granting a
motion for a mistrial. Talbot challenges the facial validity of the order setting aside
a jury verdict and granting a mistrial and argues the record fails to support the trial
court’s rationale for granting a mistrial. We conditionally grant mandamus relief. 1
1
The Real Party in Interest, Gabriel Pearce, argues we should dismiss the
mandamus petition because Talbot failed to diligently pursue a mandamus remedy.
The Texas Rules of Appellate Procedure place no time limit on filing a petition for
a writ of mandamus, but we may deny a mandamus petition under the equitable
doctrine of laches if the relator fails to diligently pursue mandamus relief. See
Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (orig. proceeding);
In re Allstate Prop. & Cas. Ins. Co., No 09-20-00031-CV, 2020 WL 1879659, at *1
(Tex. App.—Beaumont Apr. 16, 2020, orig. proceeding) (mem. op.). Generally,
establishing laches requires showing an unreasonable delay and a good faith and
1
Underlying Facts and Procedural History
The Real Party in Interest, Gabriel Pearce, sued Talbot for personal injuries
sustained in a motor vehicle accident that occurred in December of 2015. Prior to
trial, on June 11, 2019, Pearce filed a motion to exclude the testimony of Talbot’s
expert, Dr. Anne Hayman, a board certified radiologist and a neuroradiologist. Dr.
Hayman has over thirty years of experience interpreting images from patients with
brain and spinal trauma, and she is currently a Professor Emeritus at MD Anderson.
Prior to trial, Pearce obtained the oral deposition of Dr. Hayman. Pearce argued in
his motion to exclude that Dr. Hayman’s opinions and the conclusions in her report 2
detrimental change in position because of the delay. In re Laibe Corp., 307 S.W.3d
314, 318 (Tex. 2010) (orig. proceeding). In this case, Talbot provided a reasonable
explanation for the delay in seeking mandamus relief, and Pearce has not shown that
the delay resulted in a detrimental change in his position. We conclude that the
record in this case does not warrant the application of the doctrine of laches to the
requested mandamus relief.
2
Dr. Hayman’s written report described her professional background,
education, and work history, identified the images she reviewed, and stated her
opinions, which in part were as follows:
I have reviewed the radiology reports of the chart radiologists
and the images of Mr. Pearce’s cervical and lumbar spine. They confirm
the presence of degenerative spinal changes which are routinely seen in
an active 31 year old m[a]n. There is no swelling, bleeding or fracture
to indicate spinal trauma.
If there were spinal root compressions, each of them would
produce a specific, immediate pattern of sensory and motor signs which
could be traced back to a compressed sensory and/or motor roots.
Without a matching neurological exam there is no evidence of
traumatic injury.
I have rendered these opinions with a reasonable degree of
medical certainty. I have [] relied on my training and experience in
2
and in her deposition testimony were inadmissible. Pearce objected to Dr. Hayman’s
testimony to the extent “it goes beyond the opinions” in her report. Pearce also
objected to Dr. Hayman’s opinions and conclusions and argued she should be
excluded as an expert witness because her opinion and conclusions were not relevant
and not based on reliable foundations and the probative value of her testimony was
outweighed by its prejudicial effect. Providing forty-eight specific examples from
Dr. Hayman’s deposition testimony, Pearce argued such testimony was deficient,
she lacked knowledge of matters discussed in her written report, her opinions and
conclusions were not based on an independent understanding of what happened, and
her opinions were based on inadequate data, were not adequately explained, and
exposed too great an analytical gap between her methodology and her opinions.
Talbot argued that Pearce failed to make even a prima facie challenge to Dr.
Hayman’s qualifications, and that plaintiff failed to sufficiently challenge the
reliability of her opinions pertaining to Pearce or her reading of his MRIs. Talbot
suggested that, considering the timing of the motion, he would tender Dr. Hayman’s
testimony to the court outside the presence of the jury and the trial court could make
its ruling at that time and assess her qualifications and the reliability of her opinions.
Talbot further noted Dr. Hayman’s opinions were based on her experience and
formulating this report. I reserve the right to alter my opinions should
additional information become available. Should you require further
assistance please feel free to contact me.
3
training in interpreting MRIs and imaging studies, and on her review of the actual
images taken on Pearce, that Pearce’s complaints about Dr. Hayman were
conclusory and failed to establish a basis for exclusion of her testimony, and that her
findings and opinions about Pearce having degenerative changes were not unusual
and were consistent with the many notations made by the radiologist who read the
MRI at the hospital. The trial court deferred ruling on the motion to exclude Dr.
Hayman. The case went to trial before a jury.
Jury Trial
On June 17, 2019, the trial court called the matter for a jury trial, and on June
18, 2019, Plaintiff and Defendant rested their cases. During the trial, the defendant
did not contest that his negligence caused the accident, and the Court granted the
Plaintiff a Directed Verdict that Defendant's negligence proximately caused the
occurrence, and that Plaintiff was not contributorily negligent. Plaintiff verbally
objected at the close of the defense expert’s testimony and moved for a mistrial based
upon the alleged improper and prejudicial testimony from the defense expert. The
Court took the matter under advisement, and the case was submitted to the jury. The
Jury returned its verdict on June 20, 2019. The sole issue submitted to the jury
concerned damages.
Question No. 1 and the jury’s response thereto was as follows:
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What sum of money, if paid now in cash, would fairly and reasonably
compensate GABRIEL PEARCE for his injuries, if any, that resulted
from the occurrence in question?
Consider the elements of damages listed below and none other.
Consider each element separately. Do not award any sum of money on
any element if you have otherwise, under some other element, awarded
a sum of money for the same loss. That is, do not compensate twice for
the same loss, if any. Do not include interest on any amount of damages
you find.
Do not include any amount for any condition existing before the
occurrence in question, except to the extent, if any, that such other
condition was aggravated by any injuries that resulted from the
occurrence in question.
Answer separately, in dollars and cents, for damages, if any.
a. Medical expenses paid or incurred in the past
Answer: $33,200
b. Medical care and expenses that, in reasonable probability,
GABRIEL PEARCE will sustain in the future.
Answer: $20,000
c. Physical pain sustained in the past
Answer: $0
d. Physical pain that, in reasonable probability, GABRIEL
PEARCE will sustain in the future.
Answer: $0
e. Mental anguish sustained in the past
Answer: $0
f. Mental anguish that, in reasonable probability, GABRIEL
PEARCE will sustain in the future.
Answer: $0
g. Physical impairment sustained in the past
Answer: $0
h. Physical impairment that, in reasonable probability, GABRIEL
PEARCE will sustain in the future.
Answer: $0
5
During the trial, the defense argued that Pearce’s injuries and spinal problems
were preexisting conditions from prior accidents and injuries, and that he had
degenerative changes in his spine that were already present before this accident.
Medical records that were admitted during the trial showed that several years before
the accident at issue in this suit Pearce had prior treatment for head, neck, and back
pain. In April of 2008, Pearce went to the hospital complaining of head pain, neck
pain, mid back pain and low back pain following a motor vehicle accident where he
was run off the road and his vehicle hit a tree or a pole. Other medical records showed
that in January of 2010, he was involved in another motor vehicle collision and he
was treated at the emergency room for neck pain and vertebral tenderness. The
medical records from 2010 indicated he complained of neck pain and low back pain
at the hospital. In January of 2011, Pearce went to the emergency room again,
complaining that he was hurting from the middle of his back upward, and that his
arms and neck were hurting. In February of 2012, Pearce was seen at the emergency
room complaining of mid and low back pain, and the records indicated he had been
walking on the road and he was hit by a car.
At trial, Pearce testified that he had neck and lower back pain and that he had
received medical treatment in 2015 for his condition. Pearce’s complaints of pain
are referenced in copies of his medical records from medical providers of treatment
he received after the 2015 accident, and those records were submitted to the jury.
6
Dr. Romero’s video deposition was played for the jury. Dr. Romero testified that he
found that Pearce had cervical and lumbar spine symptoms consistent with stenosis
at C5-6, C6-7 and L5-S1 and that Pearce’s symptoms and stenosis are consistent
with the MRI findings, and Dr. Romero testified that Pearce needed a two-level
surgery of the cervical spine, requiring removal of two discs and a fusion and
insertion of a plate and screws. The estimated recovery time would be nine to twelve
months. On cross examination, Dr. Romero agreed that disc space narrowing like
that seen on the images of Pearce’s cervical and lumbar spine can be a degenerative
finding and the mild desiccation he observed could be consistent with degenerative
processes or the accident. Dr. Romero did not review any pre-accident medical
records and Pearce had told Romero he had no significant back or neck problems
before the accident.
When Pearce testified at trial, he also agreed that during his deposition, he had
been asked whether he had ever suffered any injury to his neck before the December
5, 2015 accident, and he agreed that he said “No.” Pearce also agreed that during his
deposition, he denied ever having been to a doctor complaining of any sort of neck
pain before the December 5, 2015 accident. Pearce agreed that he only told his
treating doctors in this case about the 2015 accident with Talbot, and he did not tell
them about the other accidents or about the prior problems of neck and arm pain.
7
Prior to allowing the defense to call Dr. Hayman to testify, the trial court
allowed the plaintiff’s attorney to conduct a voir dire of Dr. Hayman outside the
presence of the jury. Dr. Hayman stated that in preparing her report she reviewed a
cervical MRI without contrast and a lumbar MRI without contrast prepared
approximately one month post-accident and the radiology reports for those images.
She agreed she had no patient history or emergency room records. She noted that the
first radiologist reported degenerative diseases that included osteophytes, disc bulges
and herniations, and mild decreased signal indicative of early dehydration and
desiccation but found no fractures, dislocations, epidural hematoma, or neoplastic
process. Dr. Hayman added that in her deposition she stated that the degenerative
changes visible on Pearce’s MRIs can be seen on anyone of that age. According to
Dr. Hayman, factors supporting a conclusion that the films showed degenerative disc
disease include the lack of blood loss or blood collection in the surrounding soft
tissues, and no fractures or malalignment. Dr. Hayman indicated that Pearce’s
complaint of pain indicates possible musculoskeletal injury, but he had no injury that
caused a fracture or dislocation, or any indication in the imaging associated with bad
or permanent cervical trauma. In her report, Dr. Hayman stated that she saw no
traumatic changes but there were mild degenerative changes present. The trial court
warned the defendant that any opinion Dr. Hayman offered must be based on specific
information that pertained to Pearce and more than mere theoretical speculation. The
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trial court took under advisement Pearce’s objections to Dr. Hayman’s opinion
testimony regarding degenerative disc disease, which had been disclosed in her 2018
report, and Pearce’s complaint that Talbot had failed to respond to certain discovery
requests in July 2017.
The trial court stated on the record:
THE COURT: Well, certainly to the extent that the witness is going to
testify about general matters relating to medicine or radiology or things
within the medical field, certainly the witness is qualified to be able to
do that.
[Plaintiff’s Counsel]: Could I ask the Court about some specific
opinions? For instance, on one hand she’s saying there’s mild
degenerative changes but then she says there’s no -- there’s no
traumatic changes as if they’re mutually exclusive. If you can’t see
trauma, then it must be degeneration. And I submit to the Court that’s
not even the job of a radiologist to identify trauma because they -- that’s
what doctors do with clinical examinations and history. And, so, if she’s
going to testify about degenerative changes, that’s different than saying
no trauma.
THE COURT: Well, my second part of what I was about to address was
to the extent that this expert was going to opine any opinions as to the
plaintiff or the plaintiff’s medical condition or status, I don’t know if
it’s sufficient to be able to render an opinion to say merely that it is
possible. I think there’s got to be an opinion sufficient to say that what
is probable and supported by the evidence and based upon reasonable
medical probability as to what the condition would be or what the cause
of the condition is and then those opinions would need to be supported
by the appropriate factual matters relating specifically to this plaintiff.
…
[Plaintiff’s Counsel]: I think I understand the Court’s ruling, your
Honor. We won’t require anything further from a voir dire perspective.
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THE COURT: All right. What I’ll do is any opinion that is given as to
the plaintiff, again, needs to be based on specific information that
pertains to this plaintiff and needs to be an opinion that was more than
mere theoretical speculation. Would need to be one that is -- that can
be properly articulated within a degree of medical probability. To have
a person come in and say it theoretically could be this is not going to be
sufficient. It needs to be something that is able to diagnose this within
sufficient medical probability that said this is the condition and this is
why and would not necessarily constitute mere conjecture.
So, I’ll allow you some leeway, Counselor, to be able to try and
present that testimony. However, understand I’m basing these
statements upon the answers in the voir dire examination that I’ve had.
A lot of the responses to the question about these conditions, you know,
related to it’s possible or it could be. And, again, I think for the opinion
to be reliable it needs to have some matter of specificity or degree of
probability to be of assistance to the jury.
The other thing I’m going to instruct the witness as to any other
physicians that may have treated this patient, certainly any statement as
to that witness’ reputation or -- within the medical community, I don’t
know that it would be appropriate. Certainly if the -- if there’s an
opinion that the physician has rendered that the expert disagrees with,
they’ll be able to say that. But, certainly, I don’t find it to be appropriate
to say that this physician has a reputation in the community to overread
charts or to underread charts or to make whatever type of mistakes. I
think that would be an improper impeachment of that physician and
also possibly constitute -- probe into the realm of character evidence
that, again, would not be relevant as to the physician. So, those matters
we do not need to discuss in front of the jury.
With that being said, is there anything else that we need to
address with this witness?
[Plaintiff’s Counsel]: No, your Honor.
[Defendant’s Counsel]: No.
THE COURT: Let’s bring in the jury.
10
Dr. Hayman then testified before the jury. She described her professional, clinical,
and academic experience for the jury. She explained that she had held academic or
clinical positions with Harvard Medical School, the National Institutes of Health,
Baylor College of Medicine, Ben Taub Hospital, the University of Texas, and her
current position is professor emeritus at MD Anderson Hospital.
In this case, she was hired by the defendant to review and read the images and
provide her opinions. She explained that when she reads cervical and lumbar MRI
“films” each consists of over a hundred images that are captured on the computer
and it allows her to then see all angles of the spine. Dr. Hayman explained that on
two occasions she read approximately 150 cervical spine images and 100 or 150
lumbar spine images from Pearce’s 2016 MRIs. She prepared a report summarizing
her findings where she compared the findings from the reading of an MRI done by
radiologist, Dr. Farolan, with her opinions. Dr. Hayman stated that radiologists do
not typically examine patients or review their other medical records and she did not
review Pearce’s. She did not examine or speak with Pearce, but she indicated that
typically a radiologist never actually sees or examines the patient.
She agreed that she based her opinions on reasonable medical probability.
According to Dr. Hayman, Dr. Farolan had noted that Pearce’s cervical MRI
revealed straightening of the lordotic curvature. While that condition could possibly
indicate a muscle spasm, it is normal in ten to fifteen percent of people and she would
11
not expect to see muscle spasms one month post-accident. Dr. Farolan’s report also
noted osteophytes anteriorly at C5-6 and C7, which she testified indicated
degenerative changes, a slow process due to age causing neither stenosis nor pinched
nerves. Dr. Farolan noted no fracture, dislocation, epidural hematoma, or neoplastic
process, which Dr. Hayman testified meant he did not see any trauma. According to
Dr. Hayman, all of Dr. Farolan’s findings described what she calls “degenerative”
changes. Dr. Hayman testified that the presence of degenerative changes in Pearce’s
spine at thirty-one years of age was likely attributable to activity and, as indicated
by the presence of changes to the bone throughout the spine, due to the aging process
rather than trauma.
According to Dr. Hayman, throughout the lumbar spine Dr. Farolan found
degenerative changes that he referred to as disc herniation. She disagreed with Dr.
Farolan’s finding of stenosis. Dr. Hayman found only mild degeneration and she
found an annular fissure rather than a tear resulting from trauma. Dr. Farolan did not
use the word “aging” in his report, but according to Dr. Hayman, what Dr. Farolan
described as osteophytes and hypertrophic changes of the facet joints are
degenerative changes. Dr. Farolan reported moderate to marked left inferior neural
foraminal stenosis and slight right inferior foraminal stenosis. According to Dr.
Hayman, the presence on both sides of the spine indicated a degenerative rather than
a traumatic condition. She did not detect any traumatic injury in the images of
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Pearce’s spine. Dr. Hayman noted that trauma can cause wear and tear that in
reasonable medical probability will appear in an MRI taken years later but not as
soon as one month post-accident.
Under cross-examination, Dr. Hayman admitted that Dr. Farolan was the
treating radiologist and had a doctor-patient relationship with Pearce while she had
been paid $1,300 to testify for the defense, and she agreed she owed no ethical,
moral, or legal duties to Pearce. She agreed she had not seen Pearce’s records from
the emergency room or from his treating physician. Dr. Hayman noted that her
experience in this case had caused her to possibly reconsider agreeing to review x-
rays without clinical records. She admitted that in her deposition she had agreed with
plaintiff’s counsel that it was unfair to make opinions without knowing the patient’s
clinical information. Although she prefers to clinically correlate the findings with
the patient’s symptoms, she did not do so in this case. Her opinion was a radiological
determination that the x-rays showed degeneration and not trauma.
Dr. Hayman stated that Pearce’s imaging did not reveal a condition for which
Pearce would need surgery, but she expressed no opinion about whether his
condition requires surgery, and she was unaware of the recommendations of Pearce’s
treating physicians. Dr. Hayman disagreed with the portion of the chiropractor’s
records that stated, “These findings correlate to the recent auto accident and are new
and non-preexisting due to the lack of bone spur and acute bright signals within the
13
disc material that’s been ruptured.” She admitted that she had not been given any
records from which she could know what limitations Pearce experienced from the
accident. Because she did not have the additional records, Dr. Hayman also could
not offer an opinion about any of his previous conditions.
Dr. Farolan’s report stated that Pearce had a disc herniation at L5-S1, but Dr.
Hayman said that condition can appear and be asymptomatic in normal people. She
agreed that she could not prove a person would not be more susceptible to injury
because that would require proving a negative. Dr. Hayman testified that Pearce’s
x-rays suggest he should have a weak thumb on the left. She admitted that she was
testifying without having the deposition or testimony of Pearce’s treating physician.
She was not saying that Pearce did not have neck pain after the accident or that any
of his medical expenses were not reasonable or necessary. Her opinion was that the
radiology does not support a traumatic injury. She agreed that as a radiologist, she
does not treat nerve compression. When pressed on cross about whether she had any
reason to dispute or doubt Dr. Romero’s opinion that Pearce is in chronic pain, Dr.
Hayman answered that sitting in the courtroom Pearce did not look like he was in
pain. She noted that Pearce was not hyperventilating, sweating, or rising to walk
around. She agreed that she had no information about how he had been feeling in
2013 through 2015.
14
After Talbot rested, Pearce moved for a mistrial on the ground that Dr.
Hayman’s personal attacks against plaintiff’s counsel and her non-responsive
answers and her refusal to make direct answers prejudiced the plaintiff. The trial
court took the motion under advisement. Talbot’s attorney argued that Pearce waived
any error by failing to request instructions to disregard. The trial court did not rule
on the motion for mistrial and the case was submitted to the jury. The jury awarded
past medical expenses of $33,200 and future medical expenses of $20,000, but
awarded zero for past or future physical pain, past or future mental anguish, or past
or future physical impairment.
Post-Trial Request for Ruling on Mistrial
On September 11, 2019, Pearce filed a written motion for a ruling on his oral
motion for a mistrial. The trial court heard Pearce’s motion for mistrial several
months after the jury returned its verdict. 3 Pearce’s counsel argued that the
derogatory comments Dr. Hayman made to Pearce’s counsel during her testimony
caused the jury to dislike the lawyer and disbelieve that Pearce was hurt. Talbot’s
counsel suggested that Dr. Hayman had been annoyed by a failure of counsel to
provide all of Pearce’s records before her deposition, which counsel repeatedly
3
The Jury Verdict was delivered on June 18, 2019. Pearce filed his written
motion asking the trial court to rule on his verbal motion for a mistrial on September
11, 2019. On October 28, 2019, the trial court then held a hearing on the request for
a mistrial.
15
pointed out in her deposition and at trial, and Dr. Hayman became frustrated when
Pearce’s counsel repeatedly returned to the same subject before the jury.
Analysis
“Mandamus is the proper vehicle to review the granting of a mistrial.” In re
Hightower, 580 S.W.3d 248, 253 (Tex. App.—Houston [14th Dist.] 2019, orig.
proceeding [mand. denied]). The post-verdict order at issue here operates as the
functional equivalent of an order granting a motion for a new trial. See id. An order
granting a new trial must state a legally appropriate reason that is sufficiently specific
to demonstrate that the trial court derived the articulated reason from the particular
facts and circumstances of the case at hand. In re Bent, 487 S.W.3d 170, 173 (Tex.
2016) (orig. proceeding). If the order is facially sufficient, the reviewing court
conducts a merits review of the bases for the order and grants mandamus relief if the
record fails to support rationale expressed in the order. Id.Normally, mistrial is a remedy available only in extreme circumstances
involving highly prejudicial and incurable errors. In re R.V., No. 07-19-00326-CV,
2020 WL 897241, at *2 (Tex. App.—Amarillo Feb. 21, 2020, pet. denied) (mem.
op.). Failure to request the trial court to instruct the jury to disregard the inadmissible
testimony results in waiver of the alleged error where the instruction would have
cured the error. State Bar of Tex. v. Evans, 774 S.W.2d 656, 658 n.6 (Tex. 1989). A
mistrial is not an appropriate remedy for the introduction of inadmissible evidence
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before the jury if a limiting instruction to disregard the inadmissible evidence would
cure the harm. Owens-Corning Fiberglass Corp. v. Malone, 916 S.W.2d 551, 563
(Tex. App.—Houston [1st Dist.] 1996), aff’d, 972 S.W.2d 35 (Tex. 1998).
In the trial court’s nine-page order granting Pearce’s motion for a mistrial, the
trial court does identify specific instances where the trial court concluded that Dr.
Hayman’s trial testimony “exceed[ed] the scope of her disclosed opinions,” and was
“improper and/or unfairly prejudicial to” Pearce. Assuming without deciding that
the trial court’s order is facially sufficient, after conducting a merits review of the
bases for the order, we find the record fails to support the rationale and conclusions
expressed in the order.
For example, in the first segment of testimony identified in the order, Pearce’s
counsel objected that Dr. Hayman had made a derogatory comment about another
doctor, and Dr. Hayman responded that she had been referring to counsel when she
stated that if the word “degenerative” appeared in Dr. Farolan’s report, “he” would
find it and she would have to “give in.” The trial court stated, “Let’s not have any
other, again, statements that aren’t responses specifically to the questions. Let’s
move forward.” The trial court did not rule on Pearce’s objection during the trial,
and Pearce did not object or request an instruction to disregard Dr. Hayman’s
comment to counsel.
17
In the second segment of testimony identified in the order, when Pearce’s
counsel showed Dr. Hayman the chiropractor’s report and asked her what limitations
Pearce suffered from the collision, Dr. Hayman remarked that she had not been given
any records and she wished he would stop asking the same question. Pearce failed
to object to Dr. Hayman’s comment at trial, and he did not request an instruction to
disregard.
In the third segment of testimony identified in the order, Dr. Hayman and
Pearce’s counsel sparred over whether there was evidence that a person is or is not
more susceptible to injury and Dr. Hayman answered at some point,
A: Well, there we go again. There we go again. If it’s not ever
been reported, you want to say that it’s true because there’s no data on
it but there is data. There’s an absence of data which means it isn’t true.
But you’ve got me back again with that how do I prove a negative. You
can’t prove a negative. I can’t prove you’re not cheating on your wife.
You can’t prove you’re not cheating on your wife.”
Counsel did not object to the answer but continued:
Q: Ma’am, I’m sorry. That is an offensive comment to me.
A: I’m so sorry.
Q: It’s personal. It’s too personal. I don’t appreciate it.
A: Thank you for taking my apology like a gentleman.
At no time did counsel for Pearce object to the answers or statements in this
exchange as nonresponsive nor did he request an instruction to disregard.
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In the fourth segment of testimony cited in the trial court’s order, the trial
court references testimony where Pearce’s counsel asked Dr. Hayman, “Dr. Romero
has the opinion that Mr. Pearce is in chronic pain. Do you have any reason to dispute
that?” Dr. Hayman replied, “Well, just looking at him, he doesn’t look like he’s in
pain to me.” Pearce’s attorney did not object to the answer. Instead, Pearce’s counsel
asked, “Beyond that, as a doctor.” Dr. Hayman replied, “As a doctor, I’m looking at
him. He isn’t hyperventilating. He’s not sweating. He’s not uncomfortable. He
hasn’t moved from his position in his chair. He hasn’t had to stand up and walk
around for back pain problems. I mean, looking at him from across the room, I
wouldn’t guess that I could tell him from anybody else.” Counsel asked, “So you
would be saying nobody in the room is in any kind of pain?” Dr. Hayman replied,
“Well, I’m in pain.” Pearce made no contemporaneous objection to any of this
testimony, nor did he request an instruction to disregard.
Fifth, the trial court listed a segment of the testimony after Pearce’s attorney
mentioned that Dr. Hayman was being paid a thousand dollars per hour to testify, to
which Dr. Hayman replied, “It’s not worth it.” Pearce made no contemporaneous
objection to this testimony, nor did he request an instruction to disregard.
Sixth, the trial court noted that after asking Dr. Hayman on re-direct
examination if Pearce’s counsel went beyond the scope of Dr. Hayman’s report
during her three-hour deposition, Talbot’s counsel asked, “Well, did you feel like it
19
was fair to you to ask you questions that went beyond the scope of your report and
beyond the scope of the information you were provided?” Dr. Hayman replied,
“Right. I was only hired to be a radiologist, and I was being beaten and browbeaten
over that.” Pearce objected, “I object. That’s not -- nobody’s ever complained about
that.” Pearce’s counsel added “That’s not appropriate.” The trial court did not rule
on the objection, but admonished Dr. Hayman in front of the jury to refrain from
making snide remarks, to maintain a professional composure, and to try to limit her
responses to very specific answers to questions. Dr. Hayman explained to the court
that in her deposition she had stated that it was unpleasant, and she felt unfairly
treated when Pearce’s counsel went beyond that scope of her report and asked her to
provide opinions about matters on which she had not been provided information.
She agreed that it was fair for her as a radiologist to review MRI images and provide
her radiological opinions about what those images show.
In its order granting Pearce’s motion for a mistrial, the trial court identified
nine instances when the trial court instructed Dr. Hayman to limit her answers to the
specific question asked. In the hearing on Pearce’s motion to exclude Dr. Hayman’s
testimony, the trial court found Dr. Hayman to be qualified to testify about general
matters relating to medicine or radiology but noted an expert’s opinion must be
based on reasonable medical probability and supported by appropriate factual
matters and it would not be sufficient to render an opinion that is merely possible.
20
The trial court did not, at that time, admonish Dr. Hayman to only answer the
question she was asked. As the hearing on the admissibility of Dr. Hayman’s
testimony concluded, the trial court indicated counsel would be allowed leeway but
indicated the witness should refrain from mentioning another physician’s reputation
in the community. Again, the trial court did not admonish Dr. Hayward concerning
confining her answer to the question she was asked. In the course of Dr. Hayman’s
testimony before the jury, the trial court instructed the witness to give
straightforward answers to specific questions seven times, but in only one of the nine
instances mentioned in the order granting Pearce’s motion for a mistrial did the trial
court sustain an objection from Pearce that Dr. Hayman’s answer had been
nonresponsive to the question asked, and in that instance Pearce did not request an
instruction from the court telling the jury to disregard the answer.
In the order granting the mistrial, the trial court found that Dr. Hayman
ignored the trial court’s instructions and admonitions, but during the trial, the trial
court never instructed the jury to disregard any of Dr. Hayman’s nonresponsive
answers or testimony. In the order granting the motion for a mistrial, the trial court
made a specific finding that Dr. Hayman’s improper conduct is attributable entirely
to Dr. Hayman alone, not to Talbot or his attorney. The trial court also stated in his
order
The Court finds that Hayman’s undisclosed, nonresponsive and/or
improper testimony referenced herein unfairly prejudiced the Plaintiff,
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including by the Jury’s award of zero damages, on various elements,
including for past physical pain, past mental anguish and past physical
impairment even after the Jury awarded some of Plaintiff’s past and
future medical expenses, which was necessarily based upon a finding
that Plaintiff was injured in the collision after Defendant admitted to
negligence in causing the collision.
The Court finds that due to Hayman’s improper, prejudicial[,] and
inflammatory testimony referenced herein, the Jury did not correctly
apply the Plaintiff’s burden of proof of a preponderance of the evidence
in reaching a verdict of zero damages for past physical pain, past mental
anguish and past physical impairment, in light of the presence of
uncontroverted testimony to the contrary.
In this case, Pearce failed to object and request an instruction to disregard each
time Dr. Hayman provided a non-responsive answer that the trial court described in
its order granting the motion for a mistrial. The trial court then notes that the non-
responsive answers “embroil[ed] Plaintiff’s counsel into various confrontations of a
personal natur[e].” The well-settled law concerning motions for mistrial allows for
a mistrial only where an instruction to disregard would have been ineffective. See
Malone, 916 S.W.2d at 563. A trial court abuses its discretion if it grants a new trial
to a party based upon error that has been waived. See In re Toyota Motor Sales,
U.S.A., Inc., 407 S.W.3d 746, 760-61 (Tex. 2013); In re United Servs. Auto. Ass’n,
446 S.W.3d 162, 175 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding),
mand. denied sub nom, In re Bent, 487 S.W.3d 170 (Tex. 2016).
Here, the trial court made findings in the order granting a mistrial that the
cumulative effect of Dr. Hayman’s “undisclosed, nonresponsive and/or improper
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testimony referenced herein unfairly prejudiced the Plaintiff[]” and due to such
testimony the jury “did not correctly apply the Plaintiff’s burden of proof of a
preponderance of the evidence in reaching a verdict of zero damages for past
physical pain, past mental anguish and past physical impairment, in light of the
presence of uncontroverted testimony to the contrary.” The trial court identified the
zero-damage awards for non-economic damages as proof that Dr. Hayman’s non-
responsive testimony prevented a proper verdict from being rendered.
We conclude that the trial court improperly applied the applicable law. Juries
have great discretion in deciding whether the evidence supports an element of
damages, and the mere fact of injury does not necessarily entitle the plaintiff to
damages for pain, mental anguish, or physical impairment. In re Tex. Farm Bureau
Mut. Ins. Co., No. 01-19-00742-CV, 2020 WL 573249, at **3-4 (Tex. App—
Houston [1st Dist.] Feb. 6, 2020, orig. proceeding) (mem. op.). Further, the mere
fact that the jury did not award non-economic damages after it has already awarded
medical damages also cannot be a valid basis for granting a new trial. In re Orren,
533 S.W.3d 926, 930 (Tex. App.—Tyler 2017, orig. proceeding).
“The amount of evidence necessary to support the jury’s verdict is far less
than that necessary to warrant disregarding the jury’s verdict.” In re Zimmer, Inc.,
451 S.W.3d 893, 906 (Tex. App.—Dallas 2014, orig. proceeding). In this case, the
mandamus record provides a valid basis on which the jury could have based its
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verdict. While we agree that there is some evidence from Pearce, his medical
records, and his treating physicians showing Pearce complained of pain and further
that such evidence might have supported a jury finding for such non-economic
damages, the jury in this case awarded no such damages. The jury could have
disbelieved Pearce’s testimony or the other evidence and could have found it was
not credible, or perhaps could have believed that his complaints were related to his
preexisting conditions and other accidents. See In re Tex. Farm Bureau Mut. Ins.
Co., 2020 WL 573249, at *3 (“Appellate courts have upheld zero-damage awards
for physical pain, even when the jury found the plaintiff was entitled to damages for
past medical expenses, when the jury heard conflicting evidence regarding the cause
of the injury or alternative explanations for the plaintiff’s pain.”). Further, although
Pearce’s testifying expert, Dr. Neil Romero, recommended surgery for treatment for
disc herniations that he believed were caused by the motor vehicle collision with
Talbot, he also agreed that his opinions were based on Pearce’s denial that he had
any previous history of significant symptoms. And Pearce agreed that he had not
informed Dr. Romero and his doctors that he had been in other accidents before. The
jury saw medical records that Pearce had been in several previous accidents, and that
he had presented in an emergency room on several occasions before 2015
complaining of neck and back pain. Pearce admitted he failed to disclose his prior
injuries in his deposition.
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The record in this case simply does not support the trial court’s finding that
Dr. Hayman’s testimony deprived the plaintiff of a fair trial, nor does it support the
trial court’s conclusion that Dr. Hayman’s non-responsive answers caused the jury
to “improperly apply the plaintiff’s burden of proof.” The trial court improperly
applied the “zero damages” rule which has been rejected by this court. See Waltrip
v. Bilbon Corp., 38 S.W.3d 873, 880 n.2 (Tex. App—Beaumont 2001, pet. denied);
see also In re Allstate Prop. & Cas. Ins. Co., 09-20-00031-CV, 2020 WL 1879659,
at *4 (Tex. App.—Beaumont Apr. 16, 2020, orig. proceeding) (mem. op.) (grant of
new trial not supported by record where jury found zero damages for future pain and
suffering). We conditionally grant Talbot’s petition for a writ of mandamus. A writ
shall issue only in the event the trial court fails to vacate its order of January 21,
2020.
PETITION CONDITIONALLY GRANTED.
PER CURIAM
Submitted on February 3, 2021
Opinion Delivered May 20, 2021
Before Kreger, Horton and Johnson, JJ.
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