Guillermo Ochoa-Cronfel v. Patrick C. Murray ( 2015 )

ACCEPTED
03-15-00242-CV
6919167
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/14/2015 4:56:31 PM
JEFFREY D. KYLE
CLERK
Case Number 03-15-00242-CV
IN THE THIRD DISTRICT COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
at Austin AUSTIN, TEXAS
9/14/2015 4:56:31 PM
JEFFREY D. KYLE
GUILLERMO OCHOA-CRONFEL, Clerk
Appellant,
v.
PATRICK C. MURRAY,
Appellee.
From Cause No. D-1-GN-11-002136 in the 345th Judicial District Court
Of Travis County, Texas
APPELLANT’S BRIEF
Paul T. Morin, P.C. Guillermo Ochoa-Cronfel
State Bar No. 14460550 State Bar No. 15175600
503 W. 14th Street 2700 Bee Caves Road, Suite 103
Austin, Texas 78701 Austin, Texas 78746
Telephone: (512) 499-8200 Telephone: (512) 347-9600
Facsimile: (512) 499-8203 Facsimile: (512) 347-9911
PMorin@austin.rr.com Guillermo@thecronfelfirm.com
ATTORNEYS FOR APPELLANT
Oral Argument Requested
September 14, 2015
IDENTITY OF PARTIES AND COUNSEL
Appellant and Plaintiff below:
Guillermo Ochoa-Cronfel (hereafter, “Cronfel” and/or “Plaintiff”).
Trial Counsel for Plaintiff:
Mr. Paul T. Morin
Texas Bar No. 14460550
Paul T. Morin, P.C.
503 West 14th Street
Austin, Texas 78701
Telephone: (512) 499-8200
Facsimile: (512) 499-8203
Mr. Chris Cagle
Texas Bar No. 24048905
The Cagle Law Firm, P.C.
4425 South Mopac Expressway
Building II, Suite 105
Austin, Texas 78735
Telephone: (512) 371-6101
Facsimile: (512) 597-3132
Appellate Counsel for Plaintiff:
Mr. Paul T. Morin (See Above)
Mr. Guillermo Ochoa-Cronfel
Texas Bar No. 15175600
2700 Bee Caves Road, Suite 103
Austin, Texas 78746
Telephone: (512) 347-9600
Facsimile: (512) 347-9911
[1]
Appellee and Defendant below:
Patrick C. Murray (hereafter, “Murray” and/or “Defendant”).
Trial Counsel for Defendant:
Mr. Brett H. Payne
Texas Bar No. 00791417
Ms. Katherine L. “Katie” Sacra McLean
Texas Bar No. 24037971
Walters, Balido & Crain, L.L.P.
9020 N. Capital of Texas Highway
Building II, Suite 225
Austin, Texas 78759
Telephone: (512) 472-9000
Facsimile: (512) 472-9002
Appellate Counsel for Defendant:
Mr. Gregory R. Ave
Texas Bar No. 01448900
Walters, Balido & Crain, L.L.P.
10440 North Central Expressway
Meadow Park Tower, Suite 1500
Dallas, Texas 75231
Telephone: (214) 347-8310
Facsimile: (214) 347-8311
[2]
Table of Contents
INDEX OF AUTHORITIES……………………………………………..…………5
STATEMENT OF THE CASE……………………………………………………11
STATEMENT REGARDING ORAL ARGUMENT…………………..…………12
ISSUES PRESENTED....................................................................................…....13
STATEMENT OF FACTS………………………………………………………..16
SUMMARY OF THE ARGUMENT………………………………….………..…25
ARGUMENT AND AUTHORITIES…………………………………………..…26
1. The Jury’s Finding in Question 1, That the Negligence of Guillermo
Ochoa-Cronfel Proximately Caused the Injury in Question, is Not
Supported by Legally and/or Factually Sufficient Evidence…………...26
2. The Jury’s Finding in Question 2, That Guillermo Ochoa-Cronfel was
45% Responsible for Causing the Injury in Question, is Not Supported by
Legally and/or Factually Sufficient Evidence………………………..…27
3. The Jury’s Finding in Question 3(1), That the damages for the physical
pain and mental anguish sustained in the past by Guillermo Ochoa-
Cronfel as a result of the injury was only $2,500.00, is Not Supported by
Legally and/or Factually Sufficient Evidence…………………..………40
4. The Jury’s Finding in Question 3(2), That the damages for the physical
pain and mental anguish that, in reasonable probability, Guillermo
Ochoa-Cronfel will sustain in the future as a result of the injury was only
$1,000.00, is Not Supported by Legally and/or Factually Sufficient
Evidence…………………………………………………………….…..50
5. The Jury’s Finding in Question 3(3), That the damages for the physical
impairment Guillermo Ochoa-Cronfel sustained in the past as a result of
the injury was only $500.00, is Not Supported by Legally and/or
Factually Sufficient Evidence…………………………………………..52
[3]
6. The Jury’s Finding in Question 3(4), That the damages for the physical
impairment that, in reasonable probability, Guillermo Ochoa-Cronfel will
sustain in the future as a result of the injury was only $2,000.00, is Not
Supported by Legally and/or Factually Sufficient Evidence………...…53
7. The Jury’s Finding in Question 3(5), That the medical care expenses
Guillermo Ochoa-Cronfel incurred in the past as a result of the injury was
only $9,345.00, is Not Supported by Legally and/or Factually Sufficient
Evidence…………………………………………………………….…..55
8. The Jury’s Finding in Question 3(6), That the medical care expenses that,
in reasonable probability, Guillermo Ochoa-Cronfel will incur in the
future as a result of the injury was only $3,000.00, is Not Supported by
Legally and/or Factually Sufficient Evidence..…………………………56
9. The Jury’s Finding in Question 3(7), That the disfigurement sustained in
the past by Guillermo Ochoa-Cronfel as a result of the injury was subject
to a ZERO damage award, is Not Supported by Legally and/or Factually
Sufficient Evidence…………………………………………………57-58
10.The Jury’s Finding in Question 3(8), That the disfigurement that, in
reasonable probability, Guillermo Ochoa-Cronfel will sustain in the
future as a result of the injury was subject to a ZERO damage award, is
Not Supported by Legally and/or Factually Sufficient Evidence………59
11.The trial court’s sanctions order against Cronfel was an abuse of
discretion as Cronfel did not violate the spirit of the prior order
complained of in Defendant’s Motion that led to the sanctions order.....62
PRAYER….............................................................................................................66
Certificate of Compliance.......................................................................................68
Certificate of Service..............................................................................................68
Appendix.................................................................................................................69
[4]
INDEX OF AUTHORITIES
Page(s)
Cases
Akin, Gump, Strauss, Hauer & Feld, LLP v. Nat’l Dev. & Research Corp.,
299 S.W.3d 106 (Tex. 2009)………………………………………………..34
Aguilar v. Morales,
162 S.W.3d 825 (Tex.App.-El Paso 2005, pet. denied)…………………….62
Blake v. Dorado,
211 S.W.3d 429 (Tex.App.-El Paso 2006, no pet.)…………………………62
Cain v. Bain,
709 S.W.2d 175 (Tex. 1986)………………………………………………..28
Carney v. Roberts Inv. Co.,
837 S.W.2d 206 (Tex.App.-Tyler 1992, writ denied)……………….27, 28, 32
Ciguero v. Lara,
455 S.W.3d 744 (Tex.App.-El Paso 2015, no pet.)………………….29, 36, 37
Cire v. Cummings,
134 S.W.3d 835 (Tex. 2004)………………………………………………..62
City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005)………………………………………………..27
Clone Component Distribs. Of Am., Inc. v. State,
819 S.W.2d 593 (Tex.App.-Dallas 1991, no writ)………………………….64
Coates v. Whittington,
758 S.W.2d 749 (Tex. 1988)………………………………………………..46
Doctor v. Pardue,
186 S.W.3d 4 (Tex.App.-Houston [1st Dist.]
2005, pet. denied)…………………………………...41, 50, 52, 53, 55, 58, 59
[5]
Doe v. Boys Clubs of Greater Dallas, Inc.,
907 S.W.2d 472 (Tex. 1995)………………………………………………..36
Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238 (Tex. 1985)………………………………………………..62
Electronic Data Sys. Corp. v. Tyson,
862 S.W.2d 728 (Tex.App.-Dallas 1993, no writ)…………………………65
Ford Motor Co. v. Ridgway,
135 S.W.3d 598 (Tex. 2004)………………………………………………..28
Ford Motor Company v. Tyson,
943 S.W.2d 527 (Tex.App.-Dallas 1997, orig. proceeding)..........................66
Golden Eagle Archery, Inc. v. Jackson,
116 S.W.3d 757 (Tex. 2003)………………………………………………..52
Goldman v. Torres,
341 S.W.2d 154 (Tex. 1960)………………………………………………..58
Hammerly Oaks, Inc. v. Edwards,
958 S.W.2d 387 (Tex. 1997)………………………………………………..33
Hicks v. Ricardo,
834 S.W.2d 587 (Tex.App.-Houston [1st Dist.] 1992, no writ)……………..50
Hill v. Clayton,
827 S.W.2d 570 (Tex.App.-Corpus Christi 1992, no writ.)…………………56
Hurst v. Kress & Company, et. al.,
489 F.2d 168 (5th Cir. 1974)…………………………………………29, 32-33
IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp.,
938 S.W.2d 440 (Tex. 1997).....................................................................64-65
In re Doe,
22 S.W.3d 601 (Tex.App.-Austin 2000, orig. proceeding)…………………46
[6]
In re Nance,
143 S.W.3d 506 (Tex.App.-Austin 2004, orig. proceeding)………….…….46
Jack B. Anglin Co., Inc. v. Tipps,
842 S.W.2d 266 (Tex. 1992).....................................................................64-65
Jones v. Wal-Mart Stores, Inc.,
870 F.2d 982 (5th Cir. 1989)……………………………………….………..50
Jordan v. City of Lubbock,
88 S.W.2d 560 (Tex.App.-Amarillo 1935, writ dism’d)…………….29, 32-33
Kahng v. Verity,
No. 01-07-00695-CV, 2008 WL 2930195 (Tex.App.-Houston [1st Dist.]
July 31, 2008, no pet.)(mem.op)……………………………………………37
Karagounis v. Property of Co. of America,
970 S.W.2d 761 (Tex.App.-Amarillo 1998, pet. denied)…………………..65
Kindred v. Con/Chem, Inc.,
650 S.W.2d 61 (Tex. 1983)…………………………………………………28
Koslow’s v. Mackie,
796 S.W.2d 700 (Tex. 1990)………………………………………………..62
Kroger Co. v. Elwood,
197 S.W.3d 793 (Tex. 2006)(per curiam)…………………………………..29
Kroger Co. v. Keng,
23 S.W.3d 347 (Tex. 2000)…………………………………………………29
Kugle v. DaimlerChrysler Corp.,
88 S.W.3d 355 (Tex.App.-San Antonio 2002, pet. denied)…………….64-65
Lopez v. La Madeleine of Texas, Inc.,
200 S.W.3d 854 (Tex.App.-Dallas 2006, no pet.)…………………….…….64
Lozano v. Lozano,
52 S.W.3d 141 (Tex. 2001)…………………………………………………33
[7]
McDonald v. Dankworth,
212 S.W.3d 336 (Tex.App.-Austin 2006, no pet.)………………27, 28-29, 33
Montes v. Pendergrass,
61 S.W.3d 505 (Tex.App.-San Antonio 2001, no pet.).......................29-30, 32
Nat’l Union Fire Ins. Co. v. Wyar,
821 S.W.2d 291 (Tex.App.-Houston [1st Dist.] 1991, no writ.)…………….55
Parker v. Highland Park, Inc.,
565 S.W.2d 512 (Tex. 1978)……………………………………………......29
Parkway Co. v. Woodruff,
901 S.W.2d 434 (Tex. 1995)…………………………………………….….41
Plas-Tex, Inc. v. U.S. Steel Corp.,
772 S.W.2d 442 (Tex. 1989)………………………………………………..28
Pool v. Ford Motor Co.,
715 S.W.2d 629 (Tex. 1986)………………………………………………..28
Prescott v. Kroger Co.,
877 S.W.2d 373 (Tex.App.-Houston [1st Dist.] 1994, writ denied)…………49
R.K. v. Ramirez,
887 S.W.2d 836 (Tex. 1994)……………………………………………46, 63
Randolph v. Walker,
29 S.W.3d 271 (Tex.App.-Houston [14th Dist.] 2000, pet. denied)…………65
Richards v. Allen, 402 S.W.2d 158 (Tex. 1966)………………………….…….64-65
Rosenboom Mach. & Tool, Inc. v. Machala,
995 S.W.2d 817 (Tex.App.-Houston [1st Dist.] 1999, pet. denied)………….50
Salter v. Galveston, H. & S.A. Ry. Co.,
285 S.W. 1112 (Tex.Civ.App. 1926)………………………………..29, 32-33
Standard Fire Ins. Co. v. Morgan,
745 S.W.2d 310 (Tex. 1987)………………………………………………..26
[8]
Stromburger v. Turley Law Firm,
251 S.W.3d 225 (Tex.App.-Dallas 2008, no pet.)………………………65-66
Sunbridge Healthcare Corp. v. Penny,
160 S.W.3d 230 (Tex.App.-Texarkana 2005, no pet.)………………………58
Texas & N.O.R. Co. v. Blake,
175 S.W.2d 683 (Tex.Civ.App.-Fort Worth 1943, writ ref’d)………….…..29
TransAmerican Natural Gas v. Powell,
811 S.W.2d 913 (Tex. 1991)……………………………………………….66
Transit Mgmt. Co. of Laredo v. Sanchez,
886 S.W.2d 823 (Tex.App.-San Antonio 1994, no writ)……………………58
Turner v. Cruz,
No. 04-10-00313-CV, 2010 WL 5545392 (Tex.App.-San Antonio
Dec. 29, 2010, no pet.)(mem.op.)…………………………………………...37
United Parcel Service, Inc. and Leal v. Rankin,
No. 04-14-00494-CV, -- S.W.3d ----, ----, 2015 WL 3503814 (Tex.App.-
San Antonio June 3, 2015).............................................................................34
Vicknair v. Peters,
No. 12-13-00034-CV, 2014 WL 357082 (Tex.App.-Tyler
Jan. 31, 2014, no pet.)(mem.op.)……………………………………………37
W.C. LaRock, D.C., P.C. v. Smith,
310 S.W.3d 48 (Tex.App.-El Paso 2010, no pet.)…………………………..36
Walgreen-Texas Co. v. Shivers,
154 S.W.2d 625 (Tex. 1941)………………………………………………..29
Williamson Co. v. Voss,
284 S.W.3d 897 (Tex.App.-Austin 2009, no pet.)………………………29-30
Statutes, Rules and Other Authorities
Tex. Civ. Prac. & Rem. Code §18.001………………………………………….…56
[9]
Tex. R. Civ. P. 215…………......………………………………………......…..64-65
Robert W. Calvert, “No Evidence” & “Insufficient Evidence” Points of Error,
38 Tex. L. Rev. 361, 362-363 (1960)……………………………………27-28
[10]
STATEMENT OF THE CASE
Nature of the case: Plaintiff and Appellant Guillermo Ochoa-Cronfel
(“Cronfel”) was injured when Defendant and
Appellee Patrick C. Murray (“Murray”) lost control
of his dog (neither of whom Cronfel saw until after
his collision with the dog) while Cronfel was riding
his bicycle on a roadway in his neighborhood, and
the dog took off running and smashed into Cronfel’s
bicycle, sending Cronfel crashing into the hard
pavement of the road. Cronfel brought suit against
Murray alleging that Murray was negligent (and
negligent per se) because he lost control of his dog
which then smashed into Cronfel, causing serious
injuries to his right elbow, forearm, wrist, and hand.
The course of the The jury was instructed that ‘negligence’ means
proceedings below: failure to use ordinary care, that ‘ordinary care’
means that degree of care that would be used by a
person of ordinary prudence under the same or
similar circumstances, and that ‘proximate cause’
means a cause that was a substantial factor in
bringing about an event, and without which cause
such event would not have occurred. The jury found
that: (1) The negligence of both Cronfel and Murray
were proximate causes of Cronfel’s injuries; (2) The
percentage of responsibility of Cronfel and Murray
was 45% and 55%, respectively; and, (3) awarded
Plaintiff actual damages totaling $18,345.00.
The trial court’s On January 28, 2015, the trial court signed a
disposition of the judgment on the jury’s verdict that awarded
case: compensatory damages, prejudgment interest, and
costs of $14,699.22. On February 24, 2015, Plaintiff
filed a motion for new trial and to disregard the
jury’s findings, which was denied on April 1, 2015.
Plaintiff perfected this appeal by timely filing a
notice of appeal on April 24, 2015.
[11]
STATEMENT REGARDING ORAL ARGUMENT
This appeal involves the interplay of Plaintiff’s claims for negligence in a
personal injury matter and Defendant’s defensive claim of contributory negligence.
The Court should grant oral argument because in the instant case the trial court’s
error in failing to grant Plaintiff’s Motion for Judgment Notwithstanding the Verdict,
particularly with respect to the jury’s findings on contributory negligence, which
were based on legally and/or factually insufficient evidence of same, could have a
negative impact on the well-established standards for findings of contributory
negligence, inadvertently lowering the burden of proof facing a defendant claiming
contributory negligence as an affirmative defense.
[12]
ISSUES PRESENTED
Appellant presents the following issues for review:
ISSUE 1: The evidence is legally and/or factually insufficient to support the
jury’s answer to Question 1, and its finding that the negligence of Guillermo Ochoa-
Cronfel proximately caused the injury in question. The answer was against the great
weight and preponderance of the evidence, is manifestly unjust, and was inadequate
based on the greater weight and preponderance of the evidence presented at trial. As
a result, the trial court erred in denying Plaintiff’s Motion for Judgment
Notwithstanding Verdict and his Motion for New Trial.
ISSUE 2: The evidence is legally and/or factually insufficient to support the
jury’s answer to Question 2(1) and its finding that Patrick Murray was only 55%
responsible for the injury and the jury’s answer to Question 2(2) and its finding that
Guillermo Ochoa-Cronfel was 45% responsible for the occurrence. These answers
were against the great weight and preponderance of the evidence, are manifestly
unjust, and were inadequate based on the greater weight and preponderance of the
evidence presented at trial. As a result, the trial court erred in denying Plaintiff’s
Motion for Judgment Notwithstanding Verdict and his Motion for New Trial.
ISSUE 3: The evidence is legally and/or factually insufficient to support the
jury’s answer to Question 3(1) and its finding that the damages for the physical pain
and mental anguish sustained in the past by Guillermo Ochoa-Cronfel as a result of
the injury was only $2,500.00. The answer was against the great weight and
preponderance of the evidence, is manifestly unjust, and was inadequate based on
the greater weight and preponderance of the evidence presented at trial. As a result,
the trial court erred in denying Plaintiff’s Motion for Judgment Notwithstanding
Verdict and his Motion for New Trial. Further, the trial court erred in overruling
Plaintiff’s objection to the introduction of evidence regarding his past surgeries as
to this damage claim, on relevance grounds.
ISSUE 4: The evidence is legally and/or factually insufficient to support the
jury’s answer to Question 3(2) and its finding that the damages for the physical pain
and mental anguish that, in reasonable probability, will be sustained by Guillermo
Ochoa-Cronfel in the future was only $1,000.00. The answer was against the great
weight and preponderance of the evidence, is manifestly unjust, and was inadequate
based on the greater weight and preponderance of the evidence presented at trial. As
a result, the trial court erred in denying Plaintiff’s Motion for Judgment
Notwithstanding Verdict and his Motion for New Trial.
[13]
ISSUE 5: The evidence is legally and/or factually insufficient to support the
jury’s answer to Question 3(3) and its finding that the damages for physical
impairment sustained in the past was only $500.00. The answer was against the
great weight and preponderance of the evidence, is manifestly unjust, and was
inadequate based on the greater weight and preponderance of the evidence presented
at trial. As a result, the trial court erred in denying Plaintiff’s Motion for Judgment
Notwithstanding Verdict and his Motion for New Trial.
ISSUE 6: The evidence is legally and/or factually insufficient to support the
jury’s answer to Question 3(4) and its finding that the damages for physical
impairment that, in reasonable probability, Guillermo Ochoa-Cronfel will sustain in
the future was only $2,000.00. The answer was against the great weight and
preponderance of the evidence, is manifestly unjust, and was inadequate based on
the greater weight and preponderance of the evidence presented at trial. As a result,
the trial court erred in denying Plaintiff’s Motion for Judgment Notwithstanding
Verdict and his Motion for New Trial.
ISSUE 7: The evidence is legally and/or factually insufficient to support the
jury’s answer to Question 3(5) and its finding that the damages for medical care
expenses incurred in the past was only $9,345.00. The answer was against the great
weight and preponderance of the evidence, is manifestly unjust, and was inadequate
based on the greater weight and preponderance of the evidence presented at trial. As
a result, the trial court erred in denying Plaintiff’s Motion for Judgment
Notwithstanding Verdict and his Motion for New Trial.
ISSUE 8: The evidence is legally and/or factually insufficient to support the
jury’s answer to Question 3(6) and its finding that the damages for medical care
expenses that, in reasonable probability, Guillermo Ochoa-Cronfel will incur in the
future was only $3,000.00. The answer was against the great weight and
preponderance of the evidence, is manifestly unjust, and was inadequate based on
the greater weight and preponderance of the evidence presented at trial. As a result,
the trial court erred in denying Plaintiff’s Motion for Judgment Notwithstanding
Verdict and his Motion for New Trial.
ISSUE 9: The evidence is legally and/or factually insufficient to support the
jury’s answer to Question 3(7) and its finding that the damages for disfigurement
sustained in the past was $0.00. The answer was against the great weight and
preponderance of the evidence, is manifestly unjust, and was inadequate based on
the greater weight and preponderance of the evidence presented at trial. As a result,
[14]
the trial court erred in denying Plaintiff’s Motion for Judgment Notwithstanding
Verdict and his Motion for New Trial.
ISSUE 10: The evidence is legally and/or factually insufficient to support the
jury’s answer to Question 3(8) and its finding that the damages for disfigurement
that, in reasonable probability, Guillermo Ochoa-Cronfel will sustain in the future
was only $0.00. The answer was against the great weight and preponderance of the
evidence, is manifestly unjust, and was inadequate based on the greater weight and
preponderance of the evidence presented at trial. As a result, the trial court erred in
denying Plaintiff’s Motion for Judgment Notwithstanding Verdict and his Motion
for New Trial.
ISSUE 11: The trial court’s monetary sanctions order against Cronfel was an abuse
of discretion and should be vacated, or in the alternative, reduced.
[15]
STATEMENT OF FACTS
On the evening of July 23, 2009, around 6:30 P.M., Appellant, Guillermo
Ochoa-Cronfel (“Cronfel”) was enjoying a bike ride on the roads of his
neighborhood in Travis Country, a subdivision off of Southwest Parkway in South
Austin. IV RR 122-23. At or around that same time, Appellee, Patrick Murray
(“Murray”) went for a walk with his dog, Magnum. IV RR 202. Sometime between
6:30 P.M. and 7:30 P.M., the paths of Cronfel and Magnum crossed, arising in the
incident and injury that were the subject of the underlying lawsuit. IV RR 125-28
(Cronfel), and IV RR 208-213 (Murray). The picture below shows the roadway in
the neighborhood where the incident took place. 1
1
VII RR 7, Plaintiff’s Ex. 1.
[16]
However, at the time of the incident at issue, there were two or more cars
parked along the right side of the roadway, and Cronfel was riding his road bike in
the direction the cars were parked, approximately 3-4 feet to the left of the cars, to
avoid the possibility of being hit by an open (or opening) car door. IV RR 125. Prior
to that July, 2009 evening, Cronfel estimated that he had ridden that very route, one
of his “usual” and “familiar” routes, hundreds of times from 1995 to the time of the
incident. IV RR 123.
As Cronfel was riding up the roadway, Murray was walking Magnum along
the sidewalk, until Magnum led him at least twenty feet off of the sidewalk into a
neighbor’s yard, past a number of trees, and behind a large rock, where the dog
relieved itself. IV RR 202-07. Up until that time, Murray had been holding
Magnum’s leash in his hand during their walk. IV RR 209-10. However, after the
dog had relieved itself, Murray dropped the leash and stepped on it while picking up
his dog’s waste. IV RR 209. It was at that time that Magnum barked and took off
from his control, with Murray not seeing what he was barking at or where he was
going, and doing nothing to try and stop him. IV RR 212.
Contemporaneous with Magnum’s nature stop, Cronfel approached that same
area of the neighborhood on the adjacent roadway. IV RR 125. Cronfel did not see
Murray or Magnum, as he was focused on his bike ride, being careful to avoid
obstructions to the side of the road, and what he was doing, and he began to ramp up
[17]
(pick up speed) in order to get in his exercise. IV RR 125-27. It was then that
Cronfel passed by the edge of one of the cars parked along the side of the road, and
Magnum shot out from behind the car, colliding with the front wheel of his bike. IV
RR 126. This collision resulted in Cronfel being thrown from his bike, at speed, and
into the pavement. IV RR 126-28.
Cronfel was wearing his cycling helmet at the time of the incident. IV RR
127. Notwithstanding same, Cronfel put his right arm up in front of his face as he
was thrown toward the road surface. IV RR 126. As a result, Cronfel’s right arm,
and specifically in order; his right wrist, his right forearm, his right elbow, and then
his right shoulder, bore the brunt of his impact with the pavement. IV RR 126-27.
After hitting the pavement and sliding along the surface, Cronfel came to rest laying
in the street, in great pain, scared, and dazed. IV RR 127-28.
By that time, Murray had made his way over to the scene of the accident, and
while what exactly transpired between Murray and Cronfel at that point is in some
dispute, what is clear is that their interaction (such as it was) was brief, and then
Murray left the area to find and tend to his dog, leaving Cronfel to his own devices,
and the good will of his neighbors.2 IV RR 128-29. Fortunately for Cronfel, his
2
Cronfel testified that Murray tried to help him up by pulling on his then-injured arm, letting him
go when Cronfel yelped in pain, and saying something to him (though Cronfel didn’t know what
it was) then leaving. IV RR 128-29. Murray testified that he asked Cronfel how he was doing,
asked him if he wanted to move, and then left to go after his dog as he was concerned about the
dog having been through a traumatic event. IV RR 214-15.
[18]
other neighbors did, in fact, exhibit a generous good will towards him. A number of
people gathered around him, trying to assist him as he sought to regain his bearings.
IV RR 129. A man and his wife assisted Cronfel into their nearby house, where they
got him some water, ice, and Ibuprofen, and the lady, who turned out to be a nurse,
suggested to Cronfel that he would need to go see a doctor for his injuries. IV RR
129-30. These neighbors took care of Cronfel for a while, and eventually loaded
Cronfel’s bike into their truck, took him home, and assisted him into his house. IV
RR 130.
After enduring an extremely restless night, in which he was in pain for the
duration, Cronfel visited his general practitioner, Dr. Paul Keinarth, the next day to
get a doctor’s assessment of his injuries. IV RR 132. Cronfel presented to Dr.
Keinarth with pain in his right shoulder, elbow, wrist, and hand, with swelling in his
wrist and hand as well as a limited range of movement. 3 Dr. Keinarth sent Cronfel
to Austin Radiological Association to get x-rays of his injured arm that very day,
and those x-rays demonstrated a fracture in the radial bone of Cronfel’s forearm,
near the elbow. IV RR 133-34, and VII RR 21-22, Plaintiff’s Ex. 2. Dr. Keinarth
then referred Cronfel to Dr. Carey Windler at Austin Sports Medicine for further
evaluation. IV RR 134.
3
IV RR 132-33, and VII RR 17-20, Plaintiff’s Ex. 2.
[19]
Cronfel saw Dr. Windler for the first time, regarding the injuries suffered in
the incident concerned herein, within a week of having seen Dr. Keinarth, on July
29, 2009. IV RR 135. At that time, Dr. Windler informed Cronfel that there was a
possibility the fracture near the elbow would require extensive surgery, including
sawing off the head of the radius bone and replacing it with “a fake one”. IV RR
135. However prior to choosing that course of action, Dr. Windler put Cronfel in a
sling for a couple of weeks, pending a decision on whether or not the described
extensive surgery would be necessary. IV RR 135-36. After a couple of weeks in
the sling, Mr. Cronfel went back to Dr. Windler and was informed that he would not
need the surgery that had been discussed on the radial fracture, but his arm did have
to be fit with a plastic cast (similar to a fiberglass or plaster cast), which he was in
for something like four to six weeks. IV RR 136. Over the course of the next few
months, leading up to another visit with Dr. Windler in late October, 2009, Cronfel’s
radial fracture improved, but all the while the pain in his right wrist continued,
unabated. 4
Subsequently, Cronfel began trying to resume his normal activities with pain
as a guide to what he should (or should not) engage in, but the right wrist continued
to bother him, and on June 14, 2010 he returned to Dr. Windler, who took that
opportunity to review the July, 2009 x-rays of Cronfel’s wrist. IV RR 140-41. In
4
IV RR 136-40, and VII RR 24-36, Dr. Windler’s records, admitted as Plaintiff’s Ex. 3.
[20]
that review, and corresponding examination, Dr. Windler observed widening of the
scapholunate interval with a possible fracture of the lunate in Cronfel’s right wrist
as another aspect of his July, 2009 injuries. 5 Dr. Windler then set Cronfel up for
additional imaging (specifically, an MR arthrogram) at River Ranch Radiology,
which took place on June 22, 2010. IV RR 142-43. This additional imaging
confirmed a large tear of the scapholunate ligament, degenerative changes in the
scaphoid, and a possible fracture off of the triquetrum. IV RR 144-46, and VII RR
25 & 30-34. At that point, Dr. Windler sent Cronfel to a hand specialist, Dr. Robert
Walters. IV RR 146.
On August 4, 2010, Dr. Walters examined Cronfel and discussed ulna impact
syndrome and its related surgical treatment with him, as a potential solution to the
pain and problems Cronfel continued to have with his right hand. IV RR 146-47.
Dr. Walters explained that the procedure would involve breaking Cronfel’s ulna,
sawing off a piece of it to shorten it in order to make it equal to the radius, and putting
two metal plates with screws into the arm. IV RR 147-48. Unfortunately, Dr.
Walters passed away during the time he was treating Cronfel in 2010. IV RR 157-
58. At that point Dr. Windler’s office referred Cronfel to Orthopaedic Specialists of
Austin and Dr. Gregg Vagner. IV RR 158. After seeing Dr. Vagner for a brief time
Cronfel sought another referral, and was sent to Dr. Ira Lown. IV RR 159-60.
5
IV RR 141-42, and VII RR 26.
[21]
Cronfel first visited Dr. Lown on August 11, 2011. IV RR 160. After
reviewing Cronfel’s medical records from prior providers, and examining and
treating Cronfel himself, it was Dr. Lown’s medical opinion that Cronfel’s injuries,
including the ulna impact syndrome and tear of the scapholunate ligament were a
result of the July 23, 2009 incident with Murray’s dog, Magnum. 6 Dr. Lown
counseled a course of physical therapy, medication, and medical treatments as a
means to put off the extreme surgical approach described above for as long as
possible. 7 Cronfel continued with this treatment approach for over two years. VII
RR 106-218. Finally, on September 11, 2014 Cronfel underwent the ulna shortening
procedure, recommended and performed by Dr. Lown. 8 The picture at the top of the
next page shows the scar left on Cronfel’s forearm after the procedure. 9
6
IV RR 35-46 (Dr. Lown).
7
IV RR 45-46 (Dr. Lown), IV RR 160 (Cronfel), and VII RR 103-05, Plaintiff’s Ex. 6.
8
IV RR 67 (Dr. Lown), IV RR 163 (Cronfel), and VII RR 267-369, Plaintiff’s Ex. 8.
9
VII RR 8, Plaintiff’s Ex. 1.
[22]
Unfortunately, the pain and impairment the injuries have caused Cronfel were
not completely resolved by the ulna shortening surgery, and he still faces a four-
corner fusion surgery on his wrist at some point in the future that will hopefully
alleviate some (if not all) of the pain, but which will still leave him with some level
of impairment in his right wrist and hand for the rest of his life.10
This negligence case was tried to a Travis County jury over three days. CR
495-503, and Supp. CR 3-6. Throughout the trial – including both the opening
statement (IV RR 27) and closing argument (V RR 26 & 36) – Defendant’s counsel
10
IV RR 68-74 & 82-86 (Dr. Lown), and IV RR 168-69 (Cronfel).
[23]
argued, regarding Cronfel’s own alleged negligence having contributed to his
injuries, that he was “revving up” in his bike ride at the time of the incident.
Defendant’s counsel further argued (incorrectly) that as a bicycle rider, Cronfel
actually had a “heightened duty” of proper lookout to the general public, as he was
“up on two wheels”, i.e., higher. V RR 36.
The jury ultimately returned a verdict that concluded; (1) the negligence of
both Murray and Cronfel were a proximate cause of the incident; and, (2) the
percentage of responsibility of Murray and Cronfel was 55% and 45%, respectively.
CR 498-99. The jury awarded Cronfel actual damages totaling $18,345.00. CR 500-
01. Judgment was entered on the verdict, taking into account the proportionate
responsibilities found by the jury, despite the fact that Cronfel filed a Motion for
JNOV and a Motion for New Trial, and this appeal followed.11
Finally, Appellant also complains herein of an Order granting Defendant’s
Motion for Sanctions against Cronfel. On October 28, 2014, prior to trial, the
Honorable District Judge Gus J. Strauss heard Defendant’s Motion for Sanctions
(and its Supplement) requesting sanctions against Cronfel for an alleged violation of
a prior Order from the Court, dated September 18, 2014, requiring Cronfel to
11
Supp CR 3-6, CR 519-21, and CR 527-34.
[24]
produce a signed authorization releasing Dr. Lown’s complete medical chart for
Cronfel by September 19, 2014. 12 13
SUMMARY OF THE ARGUMENT
Under the uncontroverted facts of the incident concerned herein, no
reasonable jury could conclude that Cronfel’s actions were negligent, that such
actions proximately caused this incident and/or his attendant injuries, or that Cronfel
was 45% responsible for the incident. These facts include that Cronfel was focused
on what he was doing (i.e., riding his bicycle on the roadway, being careful to avoid
obstructions to the side of the road), that he did not see Murray or his dog until seeing
the dog at the instant he was slamming into Cronfel’s bicycle, and that he could have
done nothing to have avoided the incident. IV RR 126-27 & 183-85. Thus, the trial
court erred in denying Plaintiff’s Motion for Judgment Notwithstanding Verdict and
his Motion for New Trial.
Further, under the uncontroverted facts of the injuries sustained by Cronfel
as a result of the incident, and the medical treatment related to such injuries (both
past and future), no reasonable jury could conclude that as a result of his injuries; (i)
$2,500.00 would fairly and reasonably compensate Cronfel for physical pain and
12
Judge Strauss was sitting as a Visiting Judge and heard this matter as part of the Travis County
District Court’s rotating central docket.
13
II RR 1-26 (Transcript of Hearing on Sanctions), CR 176-364 (Defendant’s Motion &
Supplement), CR 384-408 (Plaintiff’s Brief Against Sanctions), CR 409-12 (Defendant’s
Objections to Plaintiff’s Brief), and CR 413 (Order).
[25]
mental anguish sustained in the past; (ii) $1,000.00 would fairly and reasonably
compensate Cronfel for physical pain and mental anguish that, in reasonable
probability, he would sustain in the future; (iii) $500.00 would fairly and reasonably
compensate Cronfel for physical impairment sustained in the past; (iv) $2,000.00
would fairly and reasonably compensate Cronfel for physical impairment that, in
reasonable probability, he will sustain in the future; (v) $9,345.00 would fairly and
reasonably compensate Cronfel for medical care expenses incurred in the past; (vi)
$3,000.00 would fairly and reasonably compensate Cronfel for medical care
expenses that, in reasonable probability, he would incur in the future; (vii) $0.00
would fairly and reasonably compensate Cronfel for disfigurement sustained in the
past; and, (viii) $0.00 would fairly and reasonably compensate Cronfel for
disfigurement that, in reasonable probability, he will sustain in the future. These
facts include Cronfel’s medical bills admitted into evidence, as well as the testimony
of both Cronfel and Dr. Lown. Thus, the trial court erred in denying Plaintiff’s
Motion for Judgment Notwithstanding Verdict and his Motion for New Trial.
Finally, the trial court abused its discretion when it sanctioned Cronfel for
violating a prior discovery order.
ARGUMENT AND AUTHORITIES
1. The Jury’s Finding in Question 1, That the Negligence of Guillermo Ochoa-
Cronfel Proximately Caused the Injury in Question, is Not Supported by
Legally and/or Factually Sufficient Evidence.
[26]
2. The Jury’s Finding in Question 2, That Guillermo Ochoa-Cronfel was 45%
Responsible for Causing the Injury in Question, is Not Supported by Legally
and/or Factually Sufficient Evidence.
The evidence is legally and factually insufficient to support the jury’s finding
in Question 1 that the negligence of Guillermo Ochoa-Cronfel proximately caused
the injury in question, and such finding is against the great weight of the evidence
and is manifestly unjust. I CR 498.
A legal sufficiency challenge is also known as a ‘no evidence’ challenge and,
“In deciding a ‘no evidence’ point, an appellate court considers only the evidence,
and reasonable inferences therefrom, which, when viewed in the most favorable
light, support the jury’s answers, rejecting and disregarding all other evidence and
reasonable inferences therefrom.” Carney v. Roberts Inv. Co., 837 S.W.2d 206, 208
(Tex.App.-Tyler 1992, writ denied), citing Standard Fire Ins. Co. v. Morgan, 745
S.W.2d 310, 311 (Tex. 1987). A legal sufficiency challenge should be sustained,
“…if the record reveals: (a) the complete absence of a vital fact; (b) the court is
barred by rules of law or of evidence from giving weight to the only evidence offered
to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a
scintilla; or (d) the evidence establishes conclusively the opposite of the vital fact.”
McDonald v. Dankworth, 212 S.W.3d 336, 340 (Tex.App.-Austin 2006, no pet.),
citing City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005) (citing Robert W.
Calvert, “No Evidence” & “Insufficient Evidence” Points of Error, 38 Tex. L. Rev.
[27]
361, 362-363 (1960)). Moreover, “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 less than a scintilla and, in legal effect, is no evidence.” McDonald,
212 S.W.3d at 339, citing Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.
2004) (citing Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
A factual sufficiency, or “insufficient evidence” challenge, requires the
reviewing court to, “…consider, weigh, and examine all of the evidence in the
record, both supporting and against the finding, to decide whether the verdict should
be set aside.” McDonald, 212 S.W.3d at 339, citing Plas-Tex, Inc. v. U.S. Steel
Corp., 772 S.W.2d 442, 445 (Tex. 1989); Pool v. Ford Motor Co., 715 S.W.2d 629,
635 (Tex. 1986); See also, Carney, 837 S.W.2d at 208. A factual sufficiency
challenge should be sustained, “…only if the evidence that supports the jury finding
is so weak as to be clearly wrong and manifestly unjust.” McDonald, 212 S.W.3d
at 339, citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); See also, Carney, 837
S.W.2d at 208 (“A reversal is required if this court concludes that the verdict is so
against the great weight and preponderance of evidence as to be manifestly unjust.”)
Under Texas law, “ ‘[t]he standards and tests for determining contributory
negligence ordinarily are the same as those for determining negligence,’ and when
contributory negligence is submitted, ‘the burden of proof is on the defendant to
prove the defense by a preponderance of the evidence.’ ” McDonald, 212 S.W.3d at
[28]
340, citing Carney, 837 S.W.2d at 208. Further, “…contributory negligence is not
established by evidence which is equally consistent with the exercise of the care by
the plaintiff, or where the inference of due care is just as reasonable as is the
inference of the absence thereof.” Jordan v. City of Lubbock, 88 S.W.2d 560, 563
(Tex.App.-Amarillo 1935, writ dism’d), citing Salter v. Galveston, H. & S.A. Ry.
Co., 285 S.W. 1112 (Tex.Civ.App. 1926); See also, Hurst v. Kress & Company, et.
al., 489 F.2d 168, 171-72 (5th Cir. 1974). That is, “Contributory negligence
contemplates an injured person's failure to use ordinary care in regard to his or her
own safety.” Kroger Co. v. Keng, 23 S.W.3d 347, 351 (Tex. 2000), citing Parker v.
Highland Park, Inc., 565 S.W.2d 512, 520 (Tex. 1978); Walgreen-Texas Co. v.
Shivers, 154 S.W.2d 625, 630 (Tex. 1941); Texas & N.O.R. Co. v. Blake, 175 S.W.2d
683, 685 (Tex.Civ.App.-Fort Worth 1943, writ ref’d).
In order to establish negligence (and thus, contributory negligence), “…a
party must establish a duty, a breach of that duty, and damages proximately caused
by the breach.” Ciguero v. Lara, 455 S.W.3d 744, 748 (Tex.App.-El Paso 2015, no
pet.), citing Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006)(per curiam).
In the instant case, the duty(ies) that could reasonably be ascribed to Appellant,
which Appellee was required to prove Appellant breached by a preponderance of the
evidence, were; (i) the general duty to exercise ordinary care; and, (ii) the general
duty to keep a proper lookout. See Williamson Co. v. Voss, 284 S.W.3d 897, 902
[29]
(Tex.App.-Austin 2009, no pet.), and Montes v. Pendergrass, 61 S.W.3d 505, 509
(Tex.App.-San Antonio 2001, no pet.).
The evidence presented at trial in this matter regarding the incident that led to
Appellant’s injury, and the negligence (or lack thereof) of Appellant and/or Appellee
was simple and straightforward. The only factual testimony regarding the incident
came from Mr. Ochoa-Cronfel and Mr. Murray. Both men testified that the incident
took place on the evening of July 23, 2009, somewhere between 6:00 and 7:30 P.M.
IV RR 122-23 (Ochoa-Cronfel) & IV RR 202 & 208 (Murray).
A review of the record demonstrates only the following evidence, and
reasonable inferences therefrom, which, when viewed in the most favorable light,
could remotely support the jury’s answers to Questions Nos. 1 and/or 2:
1. Cronfel was “revving up”, i.e., picking up speed on his bicycle ride in an
attempt to get a good workout in, at or immediately before the collision with
Murray’s dog;14
2. Cronfel was focused on what he was doing, i.e., riding his bicycle on the
roadway, being careful to avoid obstructions to the side of the road; 15 and,
14
IV RR 126-27, 180, 182, and 185;
15
IV RR 126.
[30]
3. Cronfel did not see Murray or his dog standing twenty or more feet off of the
roadway, past a number of trees and a big, big rock, and through two or more cars
lining the side of the road, before the collision with Murray’s dog. 16
The foregoing evidence, even when viewed in the light most favorable to the
jury’s finding of contributory negligence against Cronfel, falls well short of meeting
the standard. Moreover, no one testified that Cronfel was doing anything wrong or
riding his bicycle negligently. In fact, Murray testified that he knew next to nothing
about the circumstances of the incident:
Q: Okay. So it’s your testimony that you didn’t see Mr. Cronfel biking
down the street?
A: Not at all, no, sir.
--IV RR 208.
Q: So the next thing you know your dog barks and takes off; is that right?
A: I don’t know if he barked or not.
Q: You don’t know if he barked? Didn’t you say in your deposition that
he barked and then he took off?
A: I don’t know.
Q: Did you – did you see your dog take off?
A: I did not.
Q: All right. And since you read your deposition on Sunday, the question
was asked of you, But you didn’t see him take off? You answered, No,
16
IV RR 124-26, 180-182 (Cronfel); IV RR 203-06 (Murray); and, VII RR 7, Plaintiff’s Ex. 1.
[31]
I mean, I just heard him take off. I mean that – that’s kind of a bark
and takeoff type – type – type of action. Do you recall that?
A: If that’s what it says right there, then I don’t disagree.
Q: All right. Did – did you know what the dog was barking at?
A: No, sir.
Q: When he immediately takes off, what action do you do to try and stop
him?
A: I didn’t – I didn’t do anything. I mean, when I turned around is when
the accident occurred.
--IV RR 211-12.
Q: Now, do you have any knowledge of any facts that Mr. Cronfel did
anything wrong in this collision with your dog?
A: I don’t know what he did because I did not see him.
Q: Okay. So you don’t have any facts to base on that –
A: I don’t know. I did not see what he was doing.
--IV RR 217.
The duty to keep a proper lookout, “…encompasses the duty to observe, in a
careful and intelligent manner, traffic and the general situation in the vicinity,
including speed and proximity of other vehicles as well as rules of the road and
common experience.” Montes, 61 S.W.3d at 509, citing Carney, 837 S.W.2d at 211.
Further, “…contributory negligence is not established by evidence which is equally
consistent with the exercise of care by plaintiff, or where the inference of due care
is just as reasonable as is the inference of the absence thereof.” Jordan, 88 S.W.2d,
[32]
at 563, citing Salter, 285 S.W., at 1112; see also, Hurst, 489 F.2d, at 172. This
demonstrates the application of the ‘equal inference rule’, to cases involving
negligence and/or contributory negligence circumstances. The ‘equal inference rule’
states, “…a jury may not reasonably infer an ultimate fact from meager
circumstantial evidence, ‘which could give rise to any number of inferences, none
more probable than another.’” Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001),
citing Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997). Here,
even when reviewing the evidence of Cronfel’s “negligence” in the light most
favorable to the jury’s findings, it is just as reasonable (if not more so) to infer that
Cronfel was keeping a proper lookout than that he was not.
There is no evidence, or no more than a scintilla of evidence, that Cronfel was
not keeping a proper lookout. Again, a mere surmise or suspicion or speculation of
evidence of Cronfel’s negligence, is less than a scintilla, and is really no evidence at
all. McDonald, 212 S.W.3d at 339 (internal citations omitted). And here, the
evidence of Cronfel’s negligence was so threadbare that Defendant’s counsel
actually invited the jury to do just that…to surmise, or speculate, as to what the
evidence could have or should have shown, not what it actually did show:
Mr. Payne: And so we have to ask ourselves, what – could Mr. Cronfel have
done something to have avoided this? Could he have not revved
up? Could he have applied his brakes? Could he have swerved?
Did he, in fact, have an opportunity to have avoided this
accident?
--V RR 26.
[33]
“Evidence does not exceed a scintilla if it is so weak as to do no more than create a
mere surmise or suspicion that the fact exists.” United Parcel Service, Inc. and Leal
v. Rankin, No. 04-14-00494-CV, -- S.W.3d ----, ----, 2015 WL 3503814, at *3
(Tex.App.-San Antonio June 3, 2015), citing Akin, Gump, Strauss, Hauer & Feld,
LLP v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 115 (Tex. 2009).
There was no evidence presented that Cronfel did, or could have done, any of
those things, so the finding that he was contributorily negligent was founded on mere
speculation, was supported by no more than a scintilla of evidence, or, in fact, the
opposite (that Cronfel was not negligent in any respect) was conclusively established
by the evidence presented. That is, there was not legally sufficient evidence from
which a jury could reasonably have found that Cronfel violated any duty, such that
he could be found contributorily negligent.
Assuming arguendo one thought it were reasonable to infer that Cronfel had
breached a duty such that he could be found contributorily negligent, there is
likewise a lack of any evidence that such negligence was a proximate cause of the
incident concerned herein. As noted above, Murray testified that he never saw
Cronfel until after the collision between Cronfel and Murray’s dog, and that he didn’t
see what happened. IV RR 208, 211-212 & 217. Cronfel testified on direct
examination that there was nothing he could have done to have avoided the incident:
[34]
Q: As you approached these cars over by the curb, did you see the
defendant or his dog at all?
A: No, I didn’t see either of them.
…
Q: And you didn’t see the defendant or his dog on the sidewalk or anything
like that?
A: No, I – I never saw them.
--IV RR 125.
Q: Looking back at – at the scene of – of this incident, were the cars
obscuring your view of the defendant and his dog, do you think?
A: I did not see them. I think that that would be the case.
Q: Did you have any time to react or avoid the dog?
A: I was – the dog was on top of me. I had no time to react, no.
--IV RR 126-27.
And under cross-examination, Cronfel maintained this testimony:
Q: Do you know the distance separating you and Magnum, the dog, as you
noticed that something may occur?
A: He was on top of me when I noticed. It was already – he was already
on top of me practically.
Q: Now, when you say on top of you, you don’t literally mean on you?
A: No. He was – he came out from behind a car, or, you know, he was
coming out from behind a car. When I noticed him, he was already
almost making contact with the bike. It was a very short distance.
--IV RR 183-84.
[35]
Q: Okay. As you’re going pretty fast and revving up, the dog has an
opportunity to travel four feet into the side of your wheel, three feet out
from a parked car as you traveled up this roadway?
A: You know, you can come up with numbers. All I can tell you is that he
came into my bike from the side, and I had no chance to react or avoid
him.
Q: And you agree you did not react; you did not shift to the left or the right;
brake; do anything to avoid the accident/
A: I had no chance.
Q: I’m sorry?
A: I had no chance.
--IV RR 185.
“Proximate cause consists of two substantive elements – cause in fact
and foreseeability. W.C. LaRock, D.C., P.C. v. Smith, 310 S.W.3d 48,
55-56 (Tex.App.-El Paso 2010, no pet.). ‘Cause in fact is not shown if
the defendant’s negligence did no more than furnish a condition which
made the injury possible.’ Doe v. Boys Clubs of Greater Dallas, Inc.,
907 S.W.2d 472, 477 (Tex. 1995). ‘The evidence must go further, and
show that such negligence was the proximate, and not the remote, cause
of resulting injuries and justify the conclusion that such injury was the
natural and probable result thereof.’ Id.”
-- Ciguero, 455 S.W.3d, at 748.
While Ciguero dealt with an adverse no-evidence summary judgment, the only
evidence presented as to the “motorist’s” negligence being a proximate cause of the
incident in question, was the motorist’s own testimony that he could not have
avoided the incident, just like the testimony of Cronfel in the instant case. The
Ciguero court examined three other, similar cases involving motorists’ duty to keep
a lookout and proximate cause. In each of those cases, the only evidence that a
[36]
motorist’s negligence was subsequently the proximate cause of the incident
complained of, was the motorist’s testimony that he did not have time to react and/or
could not have avoided the incident in question. About this circumstance the
Ciguero court held, “A driver’s testimony that a collision occurred concurrent with
or immediately preceding his recognition of a road hazard, standing alone,
constitutes no evidence on the issue of proximate cause because it does not raise a
fact issue on whether the accident could have been avoided.” Ciguero, 455 S.W.3d,
at 749. See also, Kahng v. Verity, No. 01-07-00695-CV, 2008 WL 2930195, at *1,
5 (Tex.App.-Houston [1st Dist.] July 31, 2008, no pet.)(mem.op); Vicknair v. Peters,
No. 12-13-00034-CV, 2014 WL 357082, at *4 (Tex.App.-Tyler Jan. 31, 2014, no
pet.)(mem.op.); and, Turner v. Cruz, No. 04-10-00313-CV, 2010 WL 5545392, at
*4 (Tex.App.-San Antonio Dec. 29, 2010, no pet.)(mem.op.). As in Ciguero, in the
instant case, Cronfel’s testimony alone, “…creates no more than a surmise or
suspicion that any breach of the duty to…keep a proper lookout was a proximate
cause of the collision.” Ciguero, 455 S.W.3d, at 749.
There was no evidence presented that Cronfel could have done anything to
have avoided the incident, so the finding that any of Cronfel’s alleged contributory
negligence was a proximate cause of the incident was founded on mere speculation,
was supported by no more than a scintilla of evidence, or, in fact, the opposite (that
Cronfel was not negligent in any respect) was conclusively established by the
[37]
evidence presented. That is, Murray did not even attempt to prove, much less prove,
that his dog would not have collided with Cronfel had Cronfel done something,
anything differently. Thus, there was not legally sufficient evidence from which a
jury could reasonably have found that Cronfel’s alleged contributory negligence, if
any, could have been a proximate cause of the incident and injuries concerned herein.
If Appellant’s legal sufficiency challenge to the jury’s findings of his
contributory negligence and/or its proximate cause of the incident/injuries in
question demonstrates that there is not even a scintilla (and certainly, no more than
a scintilla) of evidence to support those findings, then Appellant’s factual sufficiency
challenge surely shows that these findings were clearly wrong and manifestly unjust.
As noted above, the only evidence from which the jury could have inferred Cronfel’s
alleged contributory negligence, or its proximate cause of the incident and injuries,
was Cronfel’s own testimony that he was “revving up”, focused on what he was
doing, and did not see Murray or his dog until at (or immediately preceding) the
collision.17 The additional evidence regarding the incident, consisting of Murray’s
testimony, affirmatively shows that the incident was caused solely by Murray’s
losing control of his dog, and failure (or inability) to do anything to regain control
of his dog prior to its violent collision with Cronfel. IV RR 210-13. That is, there
was not factually sufficient evidence from which a jury could reasonably have found
17
See FNs 14-16, supra.
[38]
that Cronfel’s alleged contributory negligence, if any, proximately caused the
incident and injuries concerned herein.
This case is very like the Carney case, noted above, where the Tyler Court of
Appeals properly considered the lack of evidence after a jury finding of contributory
negligence and reversed and remanded. Here, no one testified that Cronfel was
doing anything wrong or riding his bike negligently. The only evidence remotely
related to negligence was Murray’s own testimony that he lost (or in fact,
relinquished) control of his dog, which then took off so fast that by the time Murray
had stood up and turned to look, it had collided violently with Cronfel, sending him
crashing at speed into the hot July pavement. There is no evidence and/or
insufficient evidence to support the jury’s answers to questions 1, 2(1) and 2(2), thus
the jury’s answers to those questions were based on nothing more than pure
speculation, surmises, or suspicions, and not on the evidence. Further, the trial court
erred when it denied Plaintiff’s Motion for Judgment Notwithstanding the Verdict
on his own negligence/contributory negligence, and this Court should do as the
Carney court did. These issues should be sustained, the judgment should be
reversed, and this Court should remand the cause to the trial court for a new trial.
To do otherwise would lower the burden on defendants claiming contributory
negligence as an affirmative defense, to well below the required preponderance of
the evidence.
[39]
3. The Jury’s Finding in Question 3(1), That the damages for the physical pain
and mental anguish sustained in the past by Guillermo Ochoa-Cronfel as a
result of the injury was only $2,500.00, is Not Supported by Legally and/or
Factually Sufficient Evidence. Further, the trial court erred in overruling
Plaintiff’s objection to the introduction of evidence regarding his past
surgeries as to this damage claim, on relevance grounds.
The legal and factual sufficiency standards of review noted above, with
respect to Appellant’s points of error on contributory negligence, apply with equal
force to Appellant’s points of error regarding the insufficiency of the damages found
by the jury in this case.
The court’s charge asked the jury what sum of money would fairly and
reasonably compensate Cronfel for his injuries that resulted from the incident in
question, for the following elements of damages; (i) physical pain and mental
anguish sustained in the past; (ii) physical pain and mental anguish that, in
reasonable probability, Cronfel will sustain in the future; (iii) physical impairment
sustained in the past; (iv) physical impairment that, in reasonable probability,
Cronfel will sustain in the future; (v) medical care expenses incurred in the past; (vi)
medical care expenses that, in reasonable probability, Cronfel will incur in the
future; (vii) disfigurement sustained in the past; and, (viii) disfigurement that, in
reasonable probability, Cronfel will sustain in the future. CR 500-01. Further, the
charge asked the jury to not award any sum of money on any element if it had
otherwise, under some other element, awarded a sum of money for the same loss, to
avoid compensating Cronfel twice for the same loss. CR 500.
[40]
“In order to recover mental anguish damages, a plaintiff must establish ‘a high
degree of mental pain and distress’ that is ‘more than mere worry, anxiety, vexation,
embarrassment, or anger.’” Doctor v. Pardue, 186 S.W.3d 4, 18 (Tex.App.-Houston
[1st Dist.] 2005, pet. denied), citing Parkway Co. v. Woodruff, 901 S.W.2d 434, 444
(Tex. 1995). While this may be a nebulous standard, direct evidence of the nature,
duration, and severity of a claimant’s mental anguish, “…whether in the form of the
claimants’ own testimony, that of third parties, or that of experts, is more likely to
provide the fact finder with adequate details to assess mental anguish claims.”
Parkway Co., 901 S.W.2d, at 444.
In the instant case, Cronfel testified at length regarding the physical pain and
mental anguish the incident and its attendant injuries had caused him up to the time
of trial, and presented medical records that demonstrated same:
• The collision with Murray’s dog caused Cronfel to impact the roadway
violently, causing him to feel “great pain” as soon as he hit the pavement, and
slid along the granular road surface that was burning hot from the intense July
sun, and the pain was severe enough that Cronfel feared that something was
“really wrong”. IV RR 127-28.
• Cronfel continued to feel pain throughout the night of the incident, and could
not sleep well as a result. The pain continued the next day, so Cronfel went
to see his general practitioner, Dr. Paul Keinarth. IV RR 131-132.
• Dr. Keinarth’s records from Cronfel’s above-referenced visit document the
pain that Cronfel continued to feel in his right shoulder, elbow, wrist, and
hand. VII RR 18-22, Plaintiff’s Exh. 2.
• Within less than a week of his visit to Dr. Keinarth, Cronfel had been referred
to Dr. Carey Windler of Austin Sports Medicine by Dr. Keinarth for further
[41]
evaluation. Dr. Windler’s records from this initial visit document that Cronfel
continued to present with pain in his right arm. VII RR 29, Plaintiff’s Exh. 3.
• Dr. Windler explained to Cronfel that he may be facing an extensive surgery
on his elbow, which would include sawing off the head of the radius. This
caused Cronfel anxiety and stress, manifesting itself in panicked thoughts,
sleepless nights, and nausea over the couple of weeks following his first visit
to Dr. Windler, as he contemplated the proposed surgery. IV RR 135-36.
• After that initial visit with Dr. Windler, Cronfel returned for further
evaluation. Dr. Windler’s records from this second visit document that
Cronfel continued to present with pain in his right arm. VII RR 28, Plaintiff’s
Exh. 3.
• At that time, Cronfel was fitted with a plastic cast on his right arm that he
would wear for another four to six weeks. Over the ensuing weeks, the arm
continued to cause Cronfel great pain on a daily basis, again causing him great
difficulty in sleeping. Cronfel described the pain at this time as a “10” on a
scale of 1 to 10. IV RR 136-37.
• Cronfel also described the difficulties he had during this time with everyday
activities such as writing, cooking, and even going to the bathroom. IV RR
138.
• In October, 2009, just less than three months after the incident, Cronfel again
returned to Dr. Windler for evaluation. While by this time the pain in his
elbow had finally begun to subside, the pain in his wrist continued, unabated.
IV RR 139 & VII RR 27, Plaintiff’s Exh. 3.
• After the October, 2009, visit, at the recommendation of Dr. Windler, Cronfel
attempted to go back to his normal, daily activities, with pain as his guide.
But the pain in his wrist didn’t go away, and in June, 2010, Cronfel paid Dr.
Windler another visit. IV RR 140-41.
• At that time, after reviewing the July, 2009 x-rays that were contemporaneous
with Cronfel’s injuries, Dr. Windler suggested he undergo an MR arthrogram,
in order to determine the extent of the damage to his right wrist. Cronfel in
fact undertook this additional procedure, which subjected him to additional
[42]
physical pain in the form of an anesthetizing shot as well as an even more
painful shot of dye, right into the joint of his wrist. IV RR 143-44.
• After the above-referenced arthrogram procedure, Cronfel was sent to a hand
specialist, Dr. Robert Walters, and he saw Dr. Walters for the first time on
August 4, 2010. At that appointment, Dr. Walters explained to Cronfel that
he had a condition known as ulnar impact syndrome, and that it would need
to be treated surgically, via a procedure in which they would break Cronfel’s
ulna, saw off a piece of it, and put two plates and screws into his arm.
Understandably, Dr. Walters’ explanation of this new, extreme-sounding
surgery caused Cronfel to revisit all the shock, anxiety, and nausea that he’d
previously experienced when discussing the similar proposed surgery on his
elbow. IV RR 147-48 & VII RR 66-67, Plaintiff’s Exhibit 4.
• Unfortunately, Dr. Walters passed away while treating Cronfel during 2010,
and prior to performing the ulnar impact surgery described above.
Subsequently, Cronfel was referred to another hand specialist, Dr. Gregg
Vagner. While Cronfel only had one appointment with Dr. Vagner, in March,
2011, he again presented with continued, worsened pain in his right wrist. IV
RR 158-59 & VII RR 89-91, Plaintiff’s Exhibit 5.
• Cronfel’s final referral was to Dr. Ira Lown, another hand specialist, who
would ultimately perform the ulnar impact surgery described above. Cronfel
began seeing Dr. Lown in August, 2011. At his first appointment with Dr.
Lown, Cronfel learned he would indeed have to undergo the ulnar impact
surgery. IV RR 160.
• At that first meeting, Dr. Lown advised Cronfel to put off the surgery as long
as possible and undergo regime of physical therapy and constant pain
management that ultimately lasted approximately three years. IV RR 161-
163.
• In September, 2014, Cronfel finally underwent the ulnar impact surgery, and
in the weeks leading up to the surgery, Cronfel again experienced the anxiety,
panic, sleeplessness, nausea, and concern that went along with the prospect of
this highly invasive procedure. IV RR 165.
• Immediately after the surgery, Cronfel experience terrible pain had had to
undergo a nerve block to manage that pain, which continued for about twenty-
[43]
four hours after surgery. And even after that, prior to the trial held in this
matter in November, 2014, Cronfel continued to experience the pain in his
wrist. IV RR 166-67.
• Dr. Lown’s extensive medical records on Cronfel further document the pain
that he continued to endure throughout Dr. Lown’s treatment of him. VII RR
94-223, Plaintiff’s Exhibit 6. In fact, Dr. Lown further testified that the ulnar
impact surgery that he performed on Cronfel is, in his experience, “one of the
more painful” surgeries to deal with from a post-operative pain level. IV RR
77.
Tellingly, Defendant did not present an expert of his own (or indeed, any
witness) to attempt to controvert any of the medical records, the expert medical
testimony of Dr. Lown, or Cronfel’s testimony as to the past physical pain and
mental anguish he sustained as a result of the incident and his attendant injuries. In
fact, Defendant’s only attempt to address these issues came in his cross-
examinations of Cronfel and Dr. Lown. With respect to Cronfel, this was limited to
a brief discussion of his daily activities post-incident, and past surgeries:
Q: Okay. Now you agree that – at least when I took your deposition, in
October, about a year ago, as of a year ago, you were still doing push-
ups, correct?
A: Yes, sir.
Q: And about a year ago, you were still doing pull-ups, correct?
A: Under the supervision of a therapist and a trainer, yes, sir.
Q: Any you continued to ride your road bike and your mountain bike,
correct?
A: Yes, sir.
Q: And you continued to lift weights, correct?
[44]
A: Reduced reps and amounts of weights, yes, sir.
Q: And you continued to water ski?
A: I water skied once.
--IV RR 186-87.
Q: Mr. Cronfel, in the past you have had several procedures – other
surgical procedures done to your knees, correct?
A: Yes, sir, over the last 30 years I’ve had several procedures.
Q: You have had a total knee replacement performed to your right knee in
August of 2010, correct?
A: Yes, sir.
Q: You have hardware present in your body in terms of a new knee,
correct?
A: Yes, sir.
Q: And you have had multiple injections to your knees in the past, correct?
A: Yes, sir.
--IV RR 191-92.
At trial, Defendant’s counsel argued that he should be able to question Cronfel
regarding the above-described other surgeries he had gone through because Cronfel
had testified about the fear, anxiety, pain, etc…associated with the instant injuries,
and the prospects of surgery(ies) related to those instant injuries. Cronfel’s counsel
objected, as to the relevance of unrelated surgeries that Cronfel had undergone.
Initially, the trial court sustained Cronfel’s objection, but after reconsidering,
[45]
changed its mind. Cronfel’s counsel renewed his objection, the trial court overruled
same, and the question-answer noted above then ensued. IV RR 187-91.
The trial court’s admission of evidence of these past injuries insofar as they
allegedly related to Cronfel’s claims for pain and mental anguish associated with the
present injury was clear error. “Whether a plaintiff’s condition is a ‘part’ of a claim
is determined from the pleadings…” In re Nance, 143 S.W.3d 506, 511 (Tex.App.-
Austin 2004, orig. proceeding), citing R.K. v. Ramirez, 887 S.W.2d 836, 840 (Tex.
1994); see also, In re Doe, 22 S.W.3d 601, 609 (Tex.App.-Austin 2000, orig.
proceeding). Here Cronfel’s pleadings allege only facts and circumstances
surrounding the 2009 injury arising from his collision with Murray’s dog and the
damages suffered as a result thereof. CR 12-18. Moreover, Murray’s pleadings also
did not plead any defensive theory related to preexisting condition. CR 10-11 & 19-
20. And even if they had, “…that defensive theory is in the nature of an inferential
rebuttal, not an ultimate issue of fact that alone has legal significance.” Nance, 143
S.W.3d, at 512-13, citing R.K., 887 S.W.2d, at 843. It is well settled that a tortfeasor
takes a plaintiff as he finds him. Coates v. Whittington, 758 S.W.2d 749, 753 (Tex.
1988); See also Nance, 143 S.W.3d, at 512; In re Doe, 22 S.W 3d, at 606. That is,
regardless of Cronfel’s past surgeries (or lack thereof) he is entitled to recover
damages resulting from the collision with Murray’s dog, conditioned as he was at
the time of the incident. See Coates, 758 S.W.2d, at 753 (internal citations omitted).
[46]
Absent a showing of some connection to Cronfel’s pain and mental anguish arising
from this incident, a showing that Murray did not even attempt to make, Cronfel’s
past surgeries have zero relevance to the damages attributable to his collision with
Murray’s dog, and their introduction was both harmful and prejudicial to Cronfel
when it came time for the jury to decide on this element of damages.
With respect to Dr. Lown, Defendant’s attempts to controvert Cronfel’s
evidence of past physical pain and mental anguish were similarly limited to a brief
discussion of Cronfel’s daily activities post-incident, and other injuries that Cronfel
had suffered. Dr. Lown testified (like Cronfel) that post-injury, Cronfel continued
to try and maintain his exercise and fitness regime, also with the guidance and
assistance of Dr. Lown’s physical therapist. IV RR 96-99. Dr. Lown also testified
that during his treatment of Cronfel (and post-incident), that Cronfel had an injury
in August, 2012 to his left wrist that required surgery. IV RR 99. On re-direct, in
summing up his opinions on Cronfel’s injuries, Dr. Lown testified as follows:
Q: Doctor, hi. I – you just answered a lot of questions about stuff that
happened in August of 2012 and all throughout the year 2012. Do you
recall that line of questioning?
A: Yes, I do.
Q: Well, I want to look through your notes. In looking at the very first
page of your records when you – when you very first saw Mr. Cronfel
on August 11th, 2011 – I mean, I went to A&M, but that’s a whole year
before August 2012, right?
A: That’s correct.
[47]
Q: And can you tell me, under Plan, from August 11th, 2011, did you have
an opinion at that time after putting your hands on Mr. Cronfel and
examining his medical records, his chart notes, and doing your physical
examination, what medical procedures on August 11th, 2011, did you
think were appropriate for Mr. Cronfel?
A: We discussed the ulnar shortening and the four-corner fusion.
Q: So wait – so – oh, so you did discuss the four-corner wrist fusion in
August 2011?
A: Yes, we did.
Q: And that was well before any of these notes that you just got all these
questions about in August 2012?
A: That’s correct.
Q: Do you have an opinion, Doctor, as to whether or not Guillermo was a
surgical candidate for the wrist fusion surgery in August 2011,
regardless what happened after that?
A: Yes. At that time he was.
Q: And I mentioned earlier today that, you know, Mr. Cronfel could have
been a participant in the world’s strongest man competition even, but it
wouldn’t have mattered if it was after August 2011, would it, to you?
A: The damage was already done.
Q: And the damage was already done, and the surgery was already going
to have to be had. Is that true?
A: Yes.
--IV RR 114-15.
Q: I just want to make clear. And after answering Mr. Payne’s questions,
have your opinions changed at all as Mr. Cronfel’s treating physician
that, other than this July 23rd, 2009 injury, would Mr. Cronfel need this
ulnar shortening surgery or would he need the wrist fusion?
[48]
A: No, he would not.
Q: And that’s based on your skills, experience, training, and reasonable
medical probability?
A: That’s correct.
--IV RR 117-18.
No evidence was presented that Cronfel did not suffer the past physical pain
and mental anguish he claimed, nor was any evidence presented that Cronfel’s past
physical pain and mental anguish was minimal. Defendant’s “controverting”
position seemed to be that other physical ailments, perhaps associated with previous
(or other) injuries, contributed to Cronfel’s complaints. A similar attack was deemed
insufficient to support an award of zero damages for past pain and suffering by the
Houston 1st District Court of Appeals:
“Appellees argue other physical ailments not attributable to this injury
contributed to appellant’s complaints, and therefore a zero award is not
against the great weight and preponderance of the evidence. However,
the jury did award appellant damages for past medical expenses
attributable to the Kroger incident. Therefore, the testimony shows the
surgery and other medical treatment were a result of the accident at
issue, rather than his previous injuries. Other injuries could not have
been responsible for any pain associated with procedures directly
attributable to this injury. Further, appellees offered no medical
testimony linking any previous injuries to present evidence of pain.”
--Prescott v. Kroger Co., 877 S.W.2d 373, 375 (Tex.App.-Houston [1st
Dist.] 1994, writ denied).
While the jury in the instant case did not award zero damages for Cronfel’s past
physical pain and mental anguish, given the extensive testimony and medical record
[49]
evidence presented in support thereof and the lack of any real controverting
evidence, the jury’s award of $2,500.00 in answer to question 3(1) is supported by
no evidence and/or insufficient evidence, is so against the great weight and
preponderance of the evidence as to be manifestly unjust, and the court should
reverse and remand for a new trial as a result.
4. The Jury’s Finding in Question 3(2), That the damages for the physical pain
and mental anguish that, in reasonable probability, Guillermo Ochoa-
Cronfel will sustain in the future as a result of the injury was only $1,000.00,
is Not Supported by Legally and/or Factually Sufficient Evidence.
“Texas follows the ‘reasonable probability rule’ for future damages for
personal injuries.” Doctor, 186 S.W.3d, at 20, citing Rosenboom Mach. & Tool, Inc.
v. Machala, 995 S.W.2d 817, 828 (Tex.App.-Houston [1st Dist.] 1999, pet. denied).
As such, to recover damages for future physical pain and mental anguish, Cronfel
must show there is a reasonable probability of his sustaining same as a result of the
injuries concerned herein. Moreover, while matters of pain and mental anguish are
speculative, “…once it has been proved by objective evidence that an injury will
continue adversely to affect plaintiff, the jury may not give a take-nothing verdict
for future pain, suffering, and mental anguish.” Hicks v. Ricardo, 834 S.W.2d 587,
591 (Tex.App.-Houston [1st Dist.] 1992, no writ), citing Jones v. Wal-Mart Stores,
Inc., 870 F.2d 982, 988 (5th Cir. 1989). Here, we are not dealing with a zero damage
award, but the findings are still inconsistent. The record shows objective evidence
that Cronfel’s injuries as a result of the collision with Murray’s dog will continue to
[50]
adversely affect him in the future, in a similar way to the effect it has had on him
from the time of the incident to the present. Nevertheless, the jury actually awarded
less than half of the amount for future damages for pain and anguish than it did for
past pain and anguish, despite the fact that in reasonable probability Cronfel’s future
pain and anguish will extend far beyond the approximately five and a half years that
had elapsed between the incident and trial.
With respect to the probable future physical pain and mental anguish he would
suffer as a result of his injuries, Cronfel testified that he was scared about his future
given the years of pain and problems he has already endured, and the prospect of an
additional future surgery that would leave him permanently impaired, and might still
not relieve the pain he feels on a daily basis. IV RR 174. Dr. Lown then further
testified regarding the wrist fusion surgery that Cronfel still faces, and the fact that
successful or not he faces the real possibility of continued pain in his wrist into the
future. IV RR 84-86.
Defendant offered no evidence, testimony or otherwise, to controvert
Cronfel’s evidence as to his probable future physical pain and mental anguish.
Again, while the jury in the instant case did not award zero damages for Cronfel’s
probable future physical pain and mental anguish, given the testimony and medical
record evidence presented in support thereof and the lack of any controverting
evidence, the jury’s award of $1,000.00 in answer to question 3(2) is supported by
[51]
no evidence and/or insufficient evidence, is so against the great weight and
preponderance of the evidence as to be manifestly unjust, and the court should
reverse and remand for a new trial as a result.
5. The Jury’s Finding in Question 3(3), That the damages for the physical
impairment Guillermo Ochoa-Cronfel sustained in the past as a result of the
injury was only $500.00, is Not Supported by Legally and/or Factually
Sufficient Evidence.
“In order to recover damages for physical impairment, ‘the effect of any
physical impairment must be substantial and extend beyond any pain, suffering,
mental anguish, lost wages or diminished earning capacity,’ [and the] ‘loss of
enjoyment of life’ may be considered as a factor in assessing damages for physical
impairment.” Doctor, 186 S.W.3d, at 18, citing Golden Eagle Archery, Inc. v.
Jackson, 116 S.W.3d 757, 772 (Tex. 2003).
Again, Cronfel testified at length regarding the past physical impairment that
the injuries resulted in:
• Immediately following the incident, Cronfel experienced swelling and a
limited range of motion with his right wrist. IV RR 133. Dr. Keinarth’s
contemporaneous medical records confirm this. VII RR 18-20, Plaintiff’s
Exh. 2.
• In fact, impairments in the range of motion in his wrist were noted in the
medical records of all of his subsequent medical providers as well. VII RR
26-27 & 30-31, Plaintiff’s Exh. 3 (Dr. Windler); VII RR 66-67, Plaintiff’s
Exhibit 4 (Dr. Walters); VII RR 89-91, Plaintiff’s Exhibit 5 (Dr. Vagner);
and, VII RR 94-96, 103-77 & 190-223, Plaintiff’s Exhibit 6.
• The repetition and intensity of Cronfel’s exercise programs had to adjust
to account for the impairment caused by his injuries. This also included
[52]
his removing certain activities, e.g., bowling, from the list of activities he
could still engage in. IV RR 172.
As with Cronfel’s past physical pain and mental anguish, the only
controverting evidence Defendant adduced with respect to his past physical
impairment was Cronfel’s above-referenced testimony that he continued to try and
live his life. There was no evidence presented that Cronfel was not, in fact, suffering
the levels of physical impairment to which he testified, or which was documented
by the medical records. Again, while the jury in the instant case did not award zero
damages for Cronfel’s past physical impairment, given the testimony and medical
record evidence presented in support thereof and the lack of any controverting
evidence, the jury’s award of $500.00 in answer to question 3(3) is supported by no
evidence and/or insufficient evidence, is so against the great weight and
preponderance of the evidence as to be manifestly unjust, and the court should
reverse and remand for a new trial as a result.
6. The Jury’s Finding in Question 3(4), That the damages for the physical
impairment that, in reasonable probability, Guillermo Ochoa-Cronfel will
sustain in the future as a result of the injury was only $2,000.00, is Not
Supported by Legally and/or Factually Sufficient Evidence.
As with future pain and mental anguish, the standard for future physical
impairment is that of “reasonable probability”. Doctor, 186 S.W.3d, at 20. And
once again, here the evidence presented was in the form of the testimony of Cronfel’s
treating physician, Dr. Lown. In describing the sort of impairment that Cronfel
[53]
would face in the future, after undergoing the additional, wrist fusion surgery that
would be necessary, Dr. Lown testified as follows:
Q: I think you can sit down now for the final time. After this wrist fusion
surgery that you just described to us is completed, will Guillermo ever
have normal range of motion in his right wrist?
A: No, he won’t.
Q: Can Guillermo expect at least 50 percent impairment in range of motion
of that wrist?
A: Yes, he can.
Q: And just so the folks on the jury are clear, even if the surgery goes 100
percent perfectly well, Guillermo can still expect at least 50 percent
impairment in his range of motion?
A: That’s correct. I usually tell patients they’re going to have about half
of the motion that they come in with. It’s usually not that – it can be
better than that, but that’s what I tell people.
Q: And could it be worse than that?
A: It could be.
--IV RR 82.
Q: The surgery – the wrist fusion surgery, is that Guillermo’s best medical
treatment option now?
A: Yes.
Q: And are there any guarantees for that surgery?
A: No, there are not.
Q: Even if the fusion surgery in his wrist goes 100 percent perfectly, is it
possible that Guillermo may still experience pain?
A: Yes.
[54]
Q: And even if the fusion surgery goes perfectly, we know with medical
certainty he’s going to be impaired, right?
A: That’s correct.
--IV RR 84-85.
As with future physical pain and mental anguish, Defendant offered no
evidence, testimony or otherwise, to controvert Cronfel’s evidence as to his probable
future physical impairment. Again, while the jury in the instant case did not award
zero damages for Cronfel’s probable future physical impairment, given the
testimony and medical record evidence presented in support thereof (demonstrating
that after the wrist fusion surgery, Cronfel would be physically impaired to some
degree for the rest of his life) and the lack of any controverting evidence, the jury’s
award of $2,000.00 in answer to question 3(4) is supported by no evidence and/or
insufficient evidence, is so against the great weight and preponderance of the
evidence as to be manifestly unjust, and the court should reverse and remand for a
new trial as a result.
7. The Jury’s Finding in Question 3(5), That the medical care expenses
Guillermo Ochoa-Cronfel incurred in the past as a result of the injury was
only $9,345.00, is Not Supported by Legally and/or Factually Sufficient
Evidence.
Past medical expenses are recoverable when a claimant demonstrates they
were reasonable and necessary. Doctor, 186 S.W.3d, at 20, citing Nat’l Union Fire
Ins. Co. v. Wyar, 821 S.W.2d 291, 297 (Tex.App.-Houston [1st Dist.] 1991, no writ.)
[55]
This can be demonstrated via medical records supported by affidavits pursuant to
Tex. Civ. Prac. & Rem. Code §18.001. In the instant case, Cronfel presented medical
billing records supported by affidavit, as well as a breakdown of the expenses by
provider that in total demonstrated past medical expenses of $11,067.59.18
Defendant offered no evidence, testimony or otherwise, to controvert
Cronfel’s evidence as to his past medical expenses. While the amount of damages
to be awarded is generally left to the sound discretion of the jury, when a claimant
shows, without contradiction, reasonable and necessary medical expenses arising
from the incident that is the subject of the claim, a jury cannot arbitrarily assess an
amount that is not authorized or supported by the evidence. See Hill v. Clayton, 827
S.W.2d 570, 574 (Tex.App.-Corpus Christi 1992, no writ.) Again, while the jury in
the instant case did not award zero damages for Cronfel’s past medical expenses,
given the testimony and medical record evidence presented in support thereof, and
the lack of any controverting evidence, the jury’s award of $9,345.00 in answer to
question 3(5) is supported by no evidence and/or insufficient evidence, is so against
the great weight and preponderance of the evidence as to be manifestly unjust, and
the court should reverse and remand for a new trial as a result.
8. The Jury’s Finding in Question 3(6), That the medical care expenses that, in
reasonable probability, Guillermo Ochoa-Cronfel will incur in the future as
a result of the injury was only $3,000.00, is Not Supported by Legally and/or
Factually Sufficient Evidence.
18
See VII RR 17-265, Plaintiff’s Exhs. 2-7; and, VII RR 380, Plaintiff’s Exh. 11.
[56]
As with future pain and mental anguish, and future physical impairment, the
standard for future medical expenses is that of “reasonable probability”. Doctor,
186 S.W.3d, at 20. And once again, here the evidence presented was in the form of
the testimony of Cronfel’s treating physician, Dr. Lown that Cronfel would still have
to undergo a wrist fusion surgery. IV RR 80-86. In describing the sort of medical
expenses that Cronfel could expect in the future for the wrist fusion surgery that
would be necessary, Dr. Lown testified to four, separate line items of expected
expenses, including his services, the surgery center’s services, anesthesiology, and
medical implants, that would total approximately $14,690.00. IV RR 82-84.
Defendant offered no evidence, testimony or otherwise, to controvert
Cronfel’s evidence as to his future medical expenses, yet the jury awarded only
$3,000.00 for future medical expenses…less than one-fourth of that suggested by
the only evidence it heard. Again, while the jury in the instant case did not award
zero damages for Cronfel’s future medical expenses, given the expert testimony
presented in support thereof, and the lack of any controverting evidence, the jury’s
award of $3,000.00 in answer to question 3(6) is supported by no evidence and/or
insufficient evidence, is so against the great weight and preponderance of the
evidence as to be manifestly unjust, and the court should reverse and remand for a
new trial as a result.
9. The Jury’s Finding in Question 3(7), That the disfigurement sustained in the
[57]
past by Guillermo Ochoa-Cronfel as a result of the injury was subject to a
ZERO damage award, is Not Supported by Legally and/or Factually
Sufficient Evidence.
“Disfigurement has been defined as ‘that which impairs or injures the beauty,
symmetry, or appearance of a person or thing; that which renders unsightly,
misshapen or imperfect, or deforms in some manner.’” Sunbridge Healthcare Corp.
v. Penny, 160 S.W.3d 230, 252 (Tex.App.-Texarkana 2005, no pet.), citing Goldman
v. Torres, 341 S.W.2d 154, 160 (Tex. 1960); see also, Doctor, 186 S.W.3d, at 18.
Moreover, “Expert testimony is not a prerequisite to the award of damages for
disfigurement.” Sunbridge Healthcare, 160 S.W.3d, at 252, citing Transit Mgmt.
Co. of Laredo v. Sanchez, 886 S.W.2d 823, 826 (Tex.App.-San Antonio 1994, no
writ).
In the instant case there was no evidence other than that introduced by Plaintiff
demonstrating the disfigurement caused by the incident and his subsequent ulnar
impact surgery. Dr. Lown testified that his review of Cronfel’s diagnostic films from
the July, 2009 incident, along with his examination of Cronfel, led to his
determination that the incident had caused a shortening of Cronfel’s ulna relative to
his radius in his right arm. IV RR 65-67. That is, the symmetry of Cronfel’s ulna
was affected by the incident, rendering it misshapen, imperfect, or deformed in some
manner. Dr. Lown further testified that this disfigurement of Cronfel’s ulna led to
the necessity of the ulnar impact surgery he ultimately performed on Cronfel. IV
[58]
RR 67. Dr. Lown then went on to describe the ulnar impact surgery itself, detailing
the 8-10 cm (approx. 3-4 in.) incision required, the sawing of bone required, and the
insertion of plates and screws required. IV RR 75-78. 19
Once again, Defendant offered no evidence, testimony or otherwise, to
controvert Cronfel’s evidence as to his past disfigurement (as there was none to
offer), yet the jury awarded zero damages for past disfigurement. Given the expert
medical testimony presented in support of past disfigurement, the photographic
evidence presented, and the lack of any controverting evidence, the jury’s award of
zero damages in answer to question 3(7) is supported by no evidence and/or
insufficient evidence, is so against the great weight and preponderance of the
evidence as to be manifestly unjust, and the court should reverse and remand for a
new trial as a result.
10.The Jury’s Finding in Question 3(8), That the disfigurement that, in
reasonable probability, Guillermo Ochoa-Cronfel will sustain in the future
as a result of the injury was subject to a ZERO damage award, is Not
Supported by Legally and/or Factually Sufficient Evidence.
As with future pain and mental anguish, future physical impairment, and future
medical expenses, the standard for future disfigurement is that of “reasonable
probability”. Doctor, 186 S.W.3d, at 20. Once again, the only evidence presented
on this point was the expert medical testimony of Dr. Lown. As noted above, Dr.
19
See also FN 9, supra, and the accompanying post-surgical picture.
[59]
Lown testified that while there were no guarantees that the wrist fusion surgery he
proposed for Cronfel’s future would alleviate all the pain he felt in his wrist, and that
it would certainly leave him with some level of impairment, it would be his best
medical treatment option. IV RR 84-85. Dr. Lown testified as to the nature of the
wrist fusion surgery as follows:
Q: Thank you. If you could, Doctor, please just show us what that wrist
fusion procedure entails.
A: Sure. So this is the disruption between like the scaphoid and lunate. So
the procedure is to take out the scaphoid. Then we fuse the lunate to
the capitate, to these other – these other bones, so that the wrist moves
as one unit from here without this.
Q: Okay. And then how – how are those bones fused? Can you explain
that to us?
A: I use – there’s several different ways to do it, but you take off the
cartilage. There’s cartilage between these bones. Take all of that out
and you get the bones so you get down to – down to good bone and then
I usually put pins or stainless steel wires to hold the bones together to
pin them in the position I want them in. And then the pins or wires
come out after the bones heal in about four to six weeks.
Q: So even after the surgery is performed, four to six weeks later the
patient has to come in and have the pins removed?
A: That’s correct.
Q: How long are the wrist bones fused to the forearm bones? Is that –
A: They’re not.
Q: Okay. So that’s not the four corner –
A: Four corners, one, two, three, four. That’s what’s fused.
[60]
Q: And how is that supposed to help with the pain?
A: Because this bone is removed, and this is what’s kind of rubbing up on
the radius and moving and not moving in line with the lunate. The
lunate – just the way we’re built, it’s a deeper – this is the radius. It’s
a deeper – deeper cup on the radius, so there’s a very predictable pattern
of – of arthritis that develops. It usually starts here at the radial styloid,
and it works its way around and can work its way between the capitate
and the lunate. But what’s always preserved or usually preserved is the
space between the – the lunate and the radius, so that’s a good area to
run the wrist off of.
Q: And that’s what you plan on doing for Guillermo?
A: Yes.
--IV RR 80-81.
That is, Cronfel’s wrist was affected by the incident, rendering his best future option
for medical treatment another surgery that would entail removal of a bone, removal
of cartilage, and essentially tying the remaining bones together with pins and wires
in order to fuse them over time. Clearly, this would affect the symmetry of Cronfel’s
right wrist causing him further imperfection or deformity.
Once again, Defendant offered no evidence, testimony or otherwise, to
controvert Cronfel’s evidence as to his reasonably probable future disfigurement (as
there was none to offer), yet the jury awarded zero damages for reasonably probable
future disfigurement. Given the expert medical testimony presented in support of
past disfigurement, and the lack of any controverting evidence, the jury’s award of
zero damages in answer to question 3(8) is supported by no evidence and/or
[61]
insufficient evidence, is so against the great weight and preponderance of the
evidence as to be manifestly unjust, and the court should reverse and remand for a
new trial as a result.
11.The trial court’s monetary sanctions order against Cronfel was an abuse of
discretion and should be vacated, or in the alternative, reduced.
A trial court’s order of sanctions is reviewed for an abuse of discretion. Blake
v. Dorado, 211 S.W.3d 429, 434 (Tex.App.-El Paso 2006, no pet.), citing Koslow’s
v. Mackie, 796 S.W.2d 700, 704 (Tex. 1990); Aguilar v. Morales, 162 S.W.3d 825,
834 (Tex.App.-El Paso 2005, pet. denied). A trial court abuses its discretion when
it acts without reference to any guiding rules and principles, and a trial court’s ruling
should be reversed only if its action is arbitrary or unreasonable. Cire v. Cummings,
134 S.W.3d 835, 838-39 (Tex. 2004), citing Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241-42 (Tex. 1985).
Here the trial court was asked to sanction Cronfel, pursuant to Tex. R. Civ.
Proc. 215.2(b)(5) & (8), for his alleged violation of a prior order requiring him to
execute a medical authorization on behalf of Defendant for the production of his
medical file from Dr. Lown’s office. CR 176-354 & 355-364, Defendant’s Motion
and Supplement thereto. The prior order required Cronfel to provide the referenced
medical authorization on or before September 19, 2014. CR 187-88. On September
19, 2014, Cronfel provided a medical authorization that restricted the release only
of medical records from Dr. Lown’s office that related to his mental health
[62]
prescriptions, behavioral or mental health services, sexually transmitted diseases,
and/or AIDS or HIV. CR 190. Prior to the hearing on Defendant’s Motion for
Sanctions, Cronfel also provided a medical authorization without the above-
referenced restrictions. CR 364. After a hearing on Defendant’s Motion for
Sanctions the Honorable District Judge Gus Strauss entered the Order complained
of herein, sanctioning Cronfel monetary sanctions in the amount of $5,000.00, “…in
part to cover the attorney’s fees that Defendant incurred in response to this motion
and all prior underlying hearings on prior motions to compel, and in part as sanctions
for objectionable conduct…” CR 413.
In his Brief in Support of his Argument Against Defendant’s Motion for
Sanctions, and attendant Affidavit of Guillermo Ochoa-Cronfel, Cronfel explained
that his understanding of the hearing and Order on which the Motion for Sanctions
was based, was that the court had ordered a medical authorization for his complete
medical file from Dr. Lown, excepting mental health records. CR 394-408. At the
hearing on Defendant’s Motion for Sanctions Defendant’s counsel even stated that
Defendant was not even seeking medical records related to Cronfel’s mental health.
II CR 19-20. This makes sense as mental health records are privileged from
discovery when they are not part of a party’s claims or defenses, as here, even if they
may be relevant, because they are not at issue. See R.K., 887 S.W.2d, at 843.
Defendant was asking the court to sanction Cronfel for seeking to protect records he
[63]
believed the court had expressed were protected, that both parties believed were
protected, and that relevant case law expressly describes as protected. And, at the
end of the day, not only was Cronfel sanctioned, but his mental health records were
not protected from disclosure to Defendant.
Additionally, and/or alternatively, the monetary sanctions ordered were
improper under Tex. R. Civ. P. 215. “Any monetary sanctions available for abuse
of discovery are limited to reasonable expenses, including attorney’s fees, caused by
the abuse.” Lopez v. La Madeleine of Texas, Inc., 200 S.W.3d 854, 865 (Tex.App.-
Dallas 2006, no pet.), citing Clone Component Distribs. Of Am., Inc. v. State, 819
S.W.2d 593, 597 (Tex.App.-Dallas 1991, no writ)(applying former Rule
215(2)(b)(2) and (8)). Here, Defendant did not offer any evidence as to his
reasonable expenses and/or fees. While Defendant did attach the conclusory
affidavit of his counsel, to the original motion for sanctions, claiming at least
$3,500.00 in attorney’s fees (CR 197-98), such is not an offer of evidence as is
required to support an award of sanctions under Rule 215:
“With regard to rule 215.6, appellants liken a sanctions hearing to a
summary judgment hearing and argue that since the sanctions rule
contemplates the use of affidavits as exhibits to a response to a
sanctions motion, the affidavits are admissible at the sanctions hearing
in the same manner as such exhibits are admissible at a summary
judgment hearing. However, unlike a sanctions hearing, a summary
judgment hearing is ‘an exception to the usual and traditional form of
procedure wherein witnesses are heard in open court and documentary
evidence is offered and received in evidence.’ IKB Indus. (Nigeria)
Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997) (quoting
[64]
Richards v. Allen, 402 S.W.2d 158, 160 (Tex. 1966)); see also Jack B.
Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 269 (Tex. 1992) (noting
summary judgment exception to requirement of hearing at which
witnesses present sworn testimony in person or by deposition rather
than by affidavit). In order to assess sanctions in this case, the trial
court was required to conduct an evidentiary hearing to which the rules
of evidence necessarily apply. See Randolph v. Walker, 29 S.W.3d 271,
277 (Tex.App.-Houston [14th Dist.] 2000, pet. denied); Karagounis v.
Property of Co. of America, 970 S.W.2d 761, 765 (Tex.App.-Amarillo
1998, pet. denied); Electronic Data Sys. Corp. v. Tyson, 862 S.W.2d
728, 739 (Tex.App.-Dallas 1993, no writ). Therefore, although rule
215.6 allows affidavits to be attached to a response to a sanctions
motion, in order for the trial court to consider such affidavits, they must
be admitted in compliance with the rules of evidence at the evidentiary
hearing.”
--Kugle v. DaimlerChrysler Corp., 88 S.W.3d 355, 363-64 (Tex.App.-
San Antonio 2002, pet. denied).
Nevertheless, assuming arguendo that the above-referenced attorney’s fees
affidavit attached to Defendant’s Motion for Sanctions did constitute evidence in
support of a sanctions award, the Court’s order explicitly stated that the $5,000.00
in attorney’s fees it was awarding as sanctions was partly for fees incurred and partly
for objectionable conduct, but it gave no insight into how it arrived at the number it
arrived at, or what portion(s) of the sanction related to fees and what portion did not.
CR 413. To the extent the court’s monetary sanctions order sought to punish
“objectionable conduct”, such is not authorized by Tex. R. Civ. P. 215.2(b)(8), as
described above. Further, the court failed to explain the basis for its calculating the
amount of the monetary sanction. As such, the monetary sanction constitutes an
impermissible, arbitrary fine that is not susceptible to meaningful review. See
[65]
Stromburger v. Turley Law Firm, 251 S.W.3d 225, 226-27 (Tex.App.-Dallas 2008,
no pet.). As a result, this court cannot properly determine whether the sanction is
“just”, as is required in order to uphold same. Ford Motor Company v. Tyson, 943
S.W.2d 527, 535 (Tex.App.-Dallas 1997, orig. proceeding); See also,
TransAmerican Natural Gas v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). For all
of the foregoing reasons, this court should vacate the trial court’s order of monetary
sanctions against Cronfel.
PRAYER
Appellant requests that the Court of Appeals reverse the judgment below, and
remand the case for a new trial because of the lack of legally and/or factually
sufficient evidence to support the jury’s findings on; (i) Plaintiff’s
negligence/contributory negligence; (ii) $2,500.00 in damages awarded to Cronfel
for physical pain and mental anguish sustained in the past; (ii) $1,000.00 in damages
awarded to Cronfel for physical pain and mental anguish that, in reasonable
probability, he would sustain in the future; (iii) $500.00 in damages awarded to
Cronfel for physical impairment sustained in the past; (iv) $2,000.00 in damages
awarded to Cronfel for physical impairment that, in reasonable probability, he will
sustain in the future; (v) $9,345.00 in damages awarded to Cronfel for medical care
expenses incurred in the past; (vi) $3,000.00 in damages awarded to Cronfel for
medical care expenses that, in reasonable probability, he would incur in the future;
[66]
(vii) $0.00 in damages awarded to Cronfel for disfigurement sustained in the past;
and/or, (viii) $0.00 in damages awarded to Cronfel for disfigurement that, in
reasonable probability, he will sustain in the future. Further, Appellant requests that
the Court of Appeals vacate the trial court’s order assessing monetary sanctions in
the amount of $5,000.00 against Cronfel as an abuse of discretion.
Respectfully submitted,
/s/ Paul T. Morin
Mr. Paul T. Morin
Texas Bar No. 14460550
Paul T. Morin, P.C.
503 West 14th Street
Austin, Texas 78701
Telephone: (512) 499-8200
Facsimile: (512) 499-8203
pmorin@austin.rr.com
Guillermo Ochoa-Cronfel
Texas Bar No. 15175600
The Cronfel Firm
2700 Bee Caves Road, Suite 103
Austin, Texas 78746
Telephone: (512) 347-9600
Facsimile: (512) 347-9911
Guillermo@thecronfelfirm.com
Counsel for Appellant,
Guillermo Ochoa-Cronfel
[67]
Certificate of Compliance
I certify that on September 14, 2015, this Appellant’s Brief was produced on
a computer and contains 13,120 words, excluding the caption, identity of parties and
counsel, statement regarding oral argument, table of contents, index of authorities,
statement of the case, and statement of the issues presented, and thus does not exceed
the 15,000 word limit provided for by Tex. R. App. P. 9.4(i).
/s/ Paul T. Morin
Paul T. Morin
Certificate of Filing and Service
I certify that on September 14, 2015, I used the Court’s electronic case filing
system to file this Appellant’s Brief and to serve this document on the counsel for
Appellee:
Mr. Gregory R. Ave
Texas Bar No. 01448900
Walters, Balido & Crain, L.L.P.
10440 North Central Expressway
Meadow Park Tower, Suite 1500
Dallas, Texas 75231
Telephone: (214) 347-8310
Facsimile: (214) 347-8311
Greg.Ave@wbclawfirm.com
/s/ Paul T. Morin
Paul T. Morin
[68]
APPENDIX
Tab
1) Final Judgment dated January 28, 2015 (Supp. CR 3-6).
2) Order on Defendant’s Motion for Sanctions dated October 31, 2015 (CR 413).
3) Jury Charge dated November 19, 2014 (CR 495-503).
4) Tex. Civ. Prac. & Rem. Code §18.001.
5) Tex. R. Civ. P. 215.2.
6) Trial Testimony of Guillermo Ochoa-Cronfel (IV RR 119-193).
7) Trial Testimony of Dr. Ira Lown (IV RR 31-119).
8) Trial Testimony of Patrick C. Murray (IV RR 199-224).
9) Plaintiff’s Brief in Support of his Argument Against Defendant’s Motion for
Sanctions (CR 384-408).
[69]
496
497
499
§ 18.001. Affidavit Concerning Cost and Necessity of Services, TX CIV PRAC & REM...
Vernon's Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs & Annos)
Title 2. Trial, Judgment, and Appeal
Subtitle B. Trial Matters
Chapter 18. Evidence
Subchapter A. Documentary Evidence
V.T.C.A., Civil Practice & Remedies Code § 18.001
§ 18.001. Affidavit Concerning Cost and Necessity of Services
Effective: September 1, 2013
Currentness
(a) This section applies to civil actions only, but not to an action on a sworn account.
(b) Unless a controverting affidavit is served as provided by this section, an affidavit that the amount a person charged for
a service was reasonable at the time and place that the service was provided and that the service was necessary is sufficient
evidence to support a finding of fact by judge or jury that the amount charged was reasonable or that the service was necessary.
(c) The affidavit must:
(1) be taken before an officer with authority to administer oaths;
(2) be made by:
(A) the person who provided the service; or
(B) the person in charge of records showing the service provided and charge made; and
(3) include an itemized statement of the service and charge.
(d) The party offering the affidavit in evidence or the party's attorney must serve a copy of the affidavit on each other party
to the case at least 30 days before the day on which evidence is first presented at the trial of the case. Except as provided by
the Texas Rules of Evidence, the records attached to the affidavit are not required to be filed with the clerk of the court before
the trial commences.
(e) A party intending to controvert a claim reflected by the affidavit must serve a copy of the counteraffidavit on each other
party or the party's attorney of record:
(1) not later than:
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 18.001. Affidavit Concerning Cost and Necessity of Services, TX CIV PRAC & REM...
(A) 30 days after the day the party receives a copy of the affidavit; and
(B) at least 14 days before the day on which evidence is first presented at the trial of the case; or
(2) with leave of the court, at any time before the commencement of evidence at trial.
(f) The counteraffidavit must give reasonable notice of the basis on which the party serving it intends at trial to controvert the
claim reflected by the initial affidavit and must be taken before a person authorized to administer oaths. The counteraffidavit
must be made by a person who is qualified, by knowledge, skill, experience, training, education, or other expertise, to testify
in contravention of all or part of any of the matters contained in the initial affidavit.
Credits
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 167, § 3.04(a), eff. Sept. 1, 1987;
Acts 2007, 80th Leg., ch. 978, § 1, eff. Sept. 1, 2007; Acts 2013, 83rd Leg., ch. 560 (S.B. 679), § 1, eff. Sept. 1, 2013.
Notes of Decisions (61)
V. T. C. A., Civil Practice & Remedies Code § 18.001, TX CIV PRAC & REM § 18.001
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
215.2. Failure to Comply with Order or with Discovery Request, TX R RCP Rule 215.2
Vernon's Texas Rules Annotated
Texas Rules of Civil Procedure
Part II. Rules of Practice in District and County Courts
Section 9. Evidence and Discovery (Refs & Annos)
B. Discovery
Rule 215. Abuse of Discovery; Sanctions (Refs & Annos)
TX Rules of Civil Procedure, Rule 215.2
215.2. Failure to Comply with Order or with Discovery Request
Currentness
(a) Sanctions by Court in District Where Deposition is Taken. If a deponent fails to appear or to be sworn or to answer a
question after being directed to do so by a district court in the district in which the deposition is being taken, the failure may
be considered a contempt of that court.
(b) Sanctions by Court in Which Action is Pending. If a party or an officer, director, or managing agent of a party or a person
designated under Rules 199.2(b)(1) or 200.1(b) to testify on behalf of a party fails to comply with proper discovery requests or to
obey an order to provide or permit discovery, including an order made under Rules 204 1 or 215.1, the court in which the action
is pending may, after notice and hearing, make such orders in regard to the failure as are just, and among others the following:
(1) an order disallowing any further discovery of any kind or of a particular kind by the disobedient party;
(2) an order charging all or any portion of the expenses of discovery or taxable court costs or both against the disobedient
party or the attorney advising him;
(3) an order that the matters regarding which the order was made or any other designated facts shall be taken to be established
for the purposes of the action in accordance with the claim of the party obtaining the order;
(4) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him
from introducing designated matters in evidence;
(5) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing with
or without prejudice the action or proceedings or any part thereof, or rendering a judgment by default against the disobedient
party;
(6) in lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey
any orders except an order to submit to a physical or mental examination;
(7) when a party has failed to comply with an order under Rule 204 requiring him to appear or produce another for
examination, such orders as are listed in paragraphs (1), (2), (3), (4) or (5) of this subdivision, unless the person failing to
comply shows that he is unable to appear or to produce such person for examination.
(8) In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or
the attorney advising him, or both, to pay, at such time as ordered by the court, the reasonable expenses, including attorney
fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make
an award of expenses unjust. Such an order shall be subject to review on appeal from the final judgment.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
215.2. Failure to Comply with Order or with Discovery Request, TX R RCP Rule 215.2
(c) Sanction Against Nonparty For Violation of Rules 196.7 or 205.3. If a nonparty fails to comply with an order under Rules
196.7 or 205.3, the court which made the order may treat the failure to obey as contempt of court.
Credits
Oct. 29, 1940, eff. Sept. 1, 1941. Amended by orders of Aug. 5, 1998, and Nov. 9, 1998, eff. Jan. 1, 1999.
Notes of Decisions (175)
Footnotes
1 Vernon's Ann.Rules Civ.Proc., rule 204.1 et seq.
Vernon's Ann. Texas Rules Civ. Proc., Rule 215.2, TX R RCP Rule 215.2
Current with amendments received through 6/1/2015
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
119
1 what your office staff tells you to some degree about
2 these estimates?
3 A. That's correct.
4 Q. And not your personal expertise?
5 A. True.
6 MR. PAYNE: Nothing further. Thank you,
7 Dr. Lown.
8 THE COURT: Anything?
9 MR. CAGLE: Nothing further.
10 THE COURT: Okay. Thank you, Dr. Lown.
11 You may step down, and you're excused as a witness.
12 It's a natural breaking point. Even though we're a
13 little earlier than noon, I'm going to go ahead and
14 we'll take our lunch break.
15 What that means is, when we come back at
16 1:15, we'll have a little bit longer of an afternoon,
17 so just make sure you come back well fed and ready to
18 go until five o'clock. But at this time, it's 11:45.
19 I'll see you all at 1:15.
20 (Lunch recess was taken.)
21 THE COURT: Plaintiff, you may call your
22 next witness.
23 MR. CAGLE: Thank you, Your Honor. We
24 call the plaintiff, Guillermo Ochoa-Cronfel.
25 THE COURT: Mr. Ochoa-Cronfel, please
120
1 raise your right hand.
2 (Witness was sworn in.)
3 THE COURT: Thank you. Please have a
4 seat.
5 GUILLERMO OCHOA-CRONFEL,
6 having been first duly sworn, testified as follows:
7 DIRECT EXAMINATION
8 BY MR. CAGLE:
9 Q. Mr. Cronfel, will you introduce yourself to
10 the folks of the jury?
11 A. My name is Guillermo Ochoa-Cronfel. My
12 friends call me Memo.
13 Q. Tell us a little bit about yourself,
14 Mr. Cronfel. Where are you from?
15 A. I was born in Houston, was raised down on the
16 border in Laredo. Then left there and went to college,
17 put myself through college, and then came here to
18 Austin and put myself through graduate school here in
19 Austin, and I've been living here since then.
20 Q. Did you graduate from graduate school in 1988?
21 A. Yes, I did.
22 Q. You've lived in Austin since that time, you
23 said?
24 A. Yes, I do.
25 Q. Have you practiced law in Austin since 1988?
121
1 A. Yes, I have.
2 Q. And what area of law do you focus on?
3 A. I'm a business lawyer.
4 Q. And before this case, have you and I ever met?
5 A. No.
6 Q. When you're not practicing business law,
7 Mr. Cronfel, what do you like to do in your spare time?
8 A. I love the outdoors. I love to exercise. I
9 like to ride bikes, and I like to go to the gym.
10 Q. Where do you normally bike?
11 A. In my neighborhood. I live in a neighborhood
12 off Southwest Parkway. It's called Travis Country.
13 I've lived there since 1995, and so I bike a lot in my
14 neighborhood. It's safe, or at least I thought it was,
15 but -- and I also bike in the greenbelt area right next
16 to there. I can drop down in there and do that.
17 Q. And how often would you bike in your
18 neighborhood, Mr. Cronfel, would you say on a weekly
19 basis?
20 A. If it's nice weather, like we have most of the
21 time here in Austin, I'll bike four to six times a
22 week, you know. During the rainy, cold times of the
23 month -- of the year, I don't bike as much, but I try
24 to get out as much as I can. I enjoy biking.
25 Q. In addition to biking, do you try to exercise
122
1 regularly?
2 A. Yes. I -- I go to the gym three to five times
3 a week. I really enjoy exercising.
4 Q. Do you exercise by yourself, or do you have a
5 personal trainer?
6 A. No. I have a trainer. I've had a trainer
7 since -- for about 12 years now, who oversees what I do
8 and makes up plans for me.
9 Q. Have you had the same personal trainer since
10 2004?
11 A. Yes, I have. His name is Shane Selberg, and
12 he's trained me for that long.
13 Q. When you exercise at the gym, do you do it
14 under the supervision of Mr. Selberg?
15 A. Yes, I do it under the supervision of the
16 trainer. He makes up plans for me. He watches how I'm
17 doing and tries to make plans that relate to what my
18 physical condition is at the time.
19 Q. I want to ask you about July 23rd, 2009, the
20 day of the incident that we're all here to talk about.
21 Okay?
22 A. Yes, sir.
23 Q. What -- excuse me. What were you doing that
24 day?
25 A. I had just gotten home from work. It was
123
1 about 6:00, 6:30 in the evening. It was a hot day, as
2 it usually is in July, and I wanted to go for a bike
3 ride. So I got on my bike and left my house and went
4 riding on my road bike.
5 Q. Was it still light out when you left your
6 house?
7 A. It was very -- very much so, yes.
8 Q. And where were you going?
9 A. I was going on one of my usual routes. I have
10 two or three routes that I take in the neighborhood
11 that I'm very familiar with, and I picked one of those.
12 So I was just headed down one of those familiar routes.
13 Q. On this particular route you were taking, how
14 many times do you think you've ever ridden that route?
15 A. Hundreds of times. I've been living in that
16 neighborhood since 1995.
17 Q. And since 1995, you've ridden your bike
18 through the neighborhood?
19 A. Many, many, many times.
20 Q. When you're riding your bicycle through the
21 neighborhood at Travis Country, you see folks out there
22 walking their dogs?
23 A. Yes, I do. It's almost invariably I see folks
24 walking their dogs when I'm coming home from work in my
25 car or leaving.
124
1 Q. Is it a neighborhood that, in your experience,
2 is fairly active with bike riders and dog walkers and
3 the like?
4 A. Yes. There's a lot of people walking their
5 dogs. There's a lot of bike riders. Since the
6 greenbelt is there, people are always coming in and out
7 of it, and it's very active.
8 Q. When you see folks out walking their dogs in
9 the Travis Country neighborhood, are they normally
10 holding onto a leash?
11 A. Invariably, yes. They're normally doing that,
12 yes.
13 Q. I'm going to show you a photograph that has
14 been admitted as Exhibit 1 in this case. And do you
15 recognize that photograph?
16 A. Yes, I do.
17 Q. Can you tell us what it is, please?
18 A. That's a street I was going down when the dog
19 attacked me.
20 Q. And were you riding your bicycle down this
21 street just before the incident?
22 A. Yes, I was.
23 Q. And when you were riding down the street, were
24 you riding in the same direction as that car that is
25 facing in that photograph?
125
1 A. Yes, I was.
2 Q. Were you riding a road bike?
3 A. Yes, I was.
4 Q. Were your feet clipped into the pedals?
5 A. Yes, they were.
6 Q. I want to ask you about the car that you see
7 in this photograph, Mr. Cronfel. Was that car there on
8 the day of the incident or were there more cars there?
9 A. I can't say that that car was there. There
10 was two or more cars that were there.
11 Q. In the same position as where that car is?
12 A. That's correct.
13 Q. As you approached these cars over by the curb,
14 did you see the defendant or his dog at all?
15 A. No, I didn't see either of them.
16 Q. And as you began approaching the cars,
17 Mr. Cronfel, how close were you to them?
18 A. Well, I wasn't close enough whereby I'd be
19 worried about a door opening or anything like that.
20 But I was far enough where I knew that I wasn't going
21 to have that problem.
22 Q. And you didn't see the defendant or his dog on
23 the sidewalk or anything like that?
24 A. No, I -- I never saw them.
25 Q. Did you later learn where the defendant and
126
1 his dog were just before this attack?
2 A. My understanding is that they were in a front
3 yard to the right of that vehicle.
4 Q. As you began passing the cars on the right,
5 tell us what happened next.
6 A. Well, I was clipped in my bike. I was focused
7 on what I was doing. I was ramping up, trying to get a
8 good workout. And as I was passing the edge of a car,
9 all of a sudden, this dog is coming at me like a
10 rocket. And it -- it smashed into my front end of the
11 wheel and knocked it up, and all the force that I had
12 going forward, pushed me down toward the ground, and I
13 was heading toward the ground. My head was headed
14 toward the ground. And I put my -- my -- luckily, I
15 was able to put my arm up, but all of that force went
16 into my arm and my wrist and my elbow, and I smashed
17 into the ground.
18 Q. When the dog impacted your wheel, would you
19 say that the wheel got knocked out from under you?
20 A. It hit the wheel and the wheel went up, and it
21 forced me down into the ground.
22 Q. Looking back at -- at the scene of -- of this
23 incident, were the cars obscuring your view of the
24 defendant and his dog, do you think?
25 A. I did not see them. I think that that would
127
1 be the case.
2 Q. Did you have any time to react or avoid the
3 dog?
4 A. I was -- the dog was on top of me. I had no
5 time to react, no.
6 Q. How fast do you think you were going at the
7 time of the impact with the dog?
8 A. I was picking up speed. I was going at a good
9 clip, trying to get a good workout in.
10 Q. Were you wearing a helmet?
11 A. Yes, I was.
12 Q. And what part of your body hit the pavement
13 first?
14 A. The first thing that hit the pavement was my
15 wrist, my forearm, elbow, and then my shoulder.
16 Q. Mr. Cronfel, can you describe for us the force
17 of the impact that you had with the pavement?
18 A. The force was violent. It was -- it was
19 terrible. It was -- it was scary, but it was very,
20 very violent.
21 Q. Describe how you felt as soon as you hit the
22 pavement.
23 A. I felt great pain. I -- I hit the pavement
24 and then I slid, and I felt the pain from the initial
25 impact and that violent impact. And then I slid on
128
1 that granular surface. Then it was 6:30 in the
2 evening, so it was burning hot, on top of that.
3 Q. You said you slid on the pavement. Do you
4 know how far you slid?
5 A. No, I don't know.
6 Q. Did you get any of that -- what do you call
7 that, road rash?
8 A. I got scrapes on my face. I got scrapes on my
9 arm and my elbow and on my leg.
10 Q. Mr. Cronfel, did you get up immediately after
11 you hit the pavement?
12 A. I couldn't get up. I was dazed. I was in
13 great pain. I was scared. I -- things were swirling
14 around.
15 Q. And tell us, just so we're clear, where you
16 were feeling the pain as you lay there on the roadway?
17 A. I was feeling the pain in my wrist and in my
18 forearm and elbow, part -- part of it in my shoulder.
19 Q. And how severe was the pain that you were
20 experiencing at that time?
21 A. It was severe enough that I -- I was scared
22 that something was really wrong.
23 Q. What happened next? Did you ever see the
24 defendant, Murray?
25 A. He hovered over -- I remember looking up, and
129
1 he was over me. And he tried to help me up by pulling
2 on my arm, but I yelped in pain. And he let me go,
3 went back on the ground. And then I think he took off
4 to go get his dog.
5 Q. Did Mr. Murray say anything to you at that
6 time?
7 A. I'm sure he said something, but it's -- I -- I
8 can't -- I don't know what he said.
9 Q. Okay. Did anyone else come over to check on
10 you?
11 A. Some children came over first, and then I
12 think their moms came over, and people started huddling
13 around me and started, you know, trying to help me. As
14 they were trying to help me come to and gather myself,
15 and they were -- they were caring for me. Slowly I
16 started to try to regain my composure. And they sort
17 of sat me up. And as I was regaining my composure,
18 they were asking me questions.
19 Q. How did you end up getting home?
20 A. Well, once I was able to sort of regain my
21 composure, the neighbor sort of stood me up. Some of
22 them kind of helped me up, and then they started
23 walking me toward a house. And a -- a man and his wife
24 took me into their house, and they sat me on the couch.
25 And the lady went and got some ice and some water and
130
1 she brought some Ibuprofen to me, and she started
2 putting the ice on where I was telling her it was
3 hurting. It turned out she was a nurse.
4 And she was looking at it and telling me,
5 You're probably going to have to go to the doctor. But
6 they -- they took care of me for a while and then, you
7 know, they watched me for a while, and then they got my
8 bicycle and they put it in their truck, and they gave
9 me a ride home. And they walked me into my house, sat
10 me on my couch. The lady got me some ice, and they
11 were very kind people.
12 Q. The neighbors that came to help you out, were
13 they kind to you?
14 A. Yes, very much so. I appreciate them. I
15 wouldn't have been able to get home without them.
16 Q. And not just the folks that came and actually
17 delivered you home, but for the others that gathered
18 around?
19 A. Yes. Yes. I'm glad I have neighbors like
20 that.
21 Q. Did you ever see the dog after he ran into
22 your bike and took off?
23 A. No, I never saw the dog again.
24 Q. So you don't know where --
25 A. I --
131
1 Q. I'm sorry.
2 A. I -- I did not see the dog.
3 Q. Okay. So you don't know where he ran off to?
4 A. I would imagine somewhere in the neighborhood,
5 but I don't know.
6 Q. Did you see a leash at any time when you saw
7 the defendant's dog that day?
8 A. I didn't.
9 Q. What did you do that night to help you deal
10 with the pain that you were experiencing?
11 A. I sat on the couch and I kept icing it, you
12 know, and then I tried to eat something, and then I
13 went to bed. And I -- hoping that things were okay,
14 kind of hoping it would go away. And I didn't sleep
15 well at all that night. I was in pain all night. And
16 next day, I went to the doctor.
17 Q. Can you tell us for certain whether or not
18 Mr. Murray was holding a leash in his hand at the time
19 the dog impacted your wheel?
20 A. I can tell you for certain that -- that that's
21 the case. He was not -- there was no human being next
22 to that dog when that dog slammed into me.
23 Q. The next day -- when did you first go and seek
24 medical attention?
25 A. The next day?
132
1 Q. The next day.
2 A. The next day.
3 Q. Yeah, what time the next day?
4 A. I don't remember, to tell you the truth.
5 Q. Where did you go to seek medical attention?
6 A. I went to go see my general practitioner,
7 whose name is Dr. Paul Keinarth.
8 Q. Mr. Cronfel, why didn't you go to the
9 emergency room that night?
10 A. Because I was hoping that I didn't have --
11 didn't have to go. I was hoping it would go away by
12 morning.
13 Q. I'm going to show you what's been admitted
14 into evidence in this case, an excerpt from
15 Dr. Keinarth's records. Have you seen this document
16 before?
17 A. Yes, I have.
18 Q. When you first went to Dr. Keinarth's office
19 the day after the attack, did you have pain in your
20 right shoulder?
21 A. Yes, I did.
22 Q. And you had pain in your right elbow, right
23 wrist, and right hand?
24 A. Yes, I did.
25 Q. And you see all those areas listed in the
133
1 medical records from Dr. Keinarth's office?
2 A. Yes, I do.
3 Q. Do you see where I've circled here, hopefully
4 for us to follow along. Do you see where it says,
5 right wrist edema and limited ROM?
6 A. Yes, I do.
7 Q. What does limited ROM of the right wrist mean?
8 Do you know?
9 A. My understanding, it means range of motion,
10 limited range of motion.
11 Q. Do you recall experiencing any problems with
12 your wrist range of motion on your right wrist from the
13 day after the attack?
14 A. Yes, I had limited range of motion.
15 Q. And is it your understanding that the term
16 "edema" means swelling?
17 A. Yes, my wrist was swollen.
18 Q. And your wrist was swelling on that -- on that
19 day when you saw Dr. Keinarth?
20 A. Yes.
21 Q. Do you recall if you were sent to get any
22 X-rays done at all?
23 A. Yes, I was sent to get X-rays.
24 Q. I'm showing you another excerpt from
25 Dr. Keinarth's records in this case. Have you seen
134
1 this document before?
2 A. Yes, I have.
3 Q. Do you recall getting those X-rays done at
4 Austin Radiological Association on July 24th, the day
5 after the attack?
6 A. Yes, I do.
7 Q. And what was your understanding of the results
8 of the X-ray of your right forearm on the day after the
9 attack?
10 A. My understanding was that I had broken the
11 radial bone down here by the elbow, and it was kind of
12 like -- like you look at a dog bone, right at the neck
13 where that part flares out across the neck.
14 Q. Were you surprised that you had suffered a
15 fracture of your radial bone?
16 A. No, I wasn't surprised.
17 Q. Why not?
18 A. Because of the impact and how violent it
19 was -- it was and how much it hurt and how it suffered
20 through the night.
21 Q. Did Dr. Keinarth treat you for any injuries,
22 or did he send you to someone else?
23 A. He put me in like a blue sling thing, and then
24 he sent me to see Dr. Carey Windler.
25 Q. Is that Dr. Carey Windler at Austin Sports
135
1 Medicine?
2 A. Yes, it is. Yes, it is.
3 Q. Do you recall the first date that you saw
4 Dr. Windler at Austin Sports Medicine?
5 A. It was shortly thereafter. It says July 29th,
6 2009.
7 Q. I'm showing you an excerpt from those records.
8 Do you recognize that document?
9 A. Yes, I do.
10 Q. What was your understanding of your course of
11 treatment after seeing Dr. Windler for the fractured
12 radius bone?
13 A. Dr. Windler explained that -- that because of
14 where that fracture was across the bone at the neck,
15 that there was a possibility that I would have to have
16 surgery, and that they would have to put a fake bone
17 like that there.
18 He explained to me that they may have to
19 separate my arm from my elbow, cut -- saw off that head
20 of the radius and then put a fake one in there, and
21 then I'd have to be in a cast and healing. And he said
22 that I would have to be in that sling for a couple of
23 weeks before they decided if they were going to have to
24 do surgery or not.
25 Q. How did that make you feel when you heard
136
1 that?
2 A. I -- when he described the process, I became
3 nauseous. I was breaking into a cold sweat. I -- I
4 couldn't believe it, and, you know, for the full two
5 weeks waiting to come back and see him, I was -- I
6 would break out in panic thinking about that surgery,
7 and wake up at night -- after I would roll on my arm
8 and it would wake me up, I would think about that, and
9 it would make me nauseous.
10 Q. Aside from the radius fracture that you saw
11 Dr. Windler for, did Dr. Windler offer any treatment to
12 you for your right wrist?
13 A. No. I told him about it, but he was focused
14 on this. I guess because of the severity of the
15 surgery and what he was concerned about.
16 Q. How long were you in a sling in your right arm
17 due to the radius fracture?
18 A. About two weeks. I went back two weeks later,
19 and, fortunately, I understood that I wasn't going to
20 need the surgery. And I was put in this big plastic
21 cast. It was like, instead of fiberglass or plaster of
22 paris, it was a big plastic thing with straps. And I
23 was in that for four to six weeks, or something like
24 that.
25 Q. Even when you were in that cast, did you still
137
1 experience pain from the fractured radius?
2 A. Yes. It was throbbing. It was hurting on a
3 daily basis. It was very painful.
4 Q. Did it interfere with your sleep at all?
5 A. Yes. I would roll over at night, and it would
6 be a very sharp pain, and it would wake me up, and it
7 was very difficult.
8 Q. And, again, talking about just the radius
9 fracture, on a scale of 1 to 10, how would you have
10 rated your pain from that fractured radius bone?
11 A. At -- at the first few weeks, it was 10. It
12 was pretty bad. And I'm right-handed as well, so it --
13 it created some problems, but the pain was very bad.
14 Q. Can you describe the type of pain you -- you
15 felt from that radius fracture? And by that I mean,
16 was it kind of a jabbing pain or dull pain?
17 A. It was -- it would be a constant dull pain.
18 And then if you'd move your wrist or try to use it, as
19 you would want to because you're right-handed, you'd --
20 you'd feel pain from, you know, bumping-into-something
21 pain, rolling-over-on-it pain. There was a constant
22 dull pain.
23 Q. What was that like, being right-handed and
24 being locked up in that long plastic cast?
25 A. It was a terrible experience. It was -- it
138
1 interfered with all my activities. Besides the pain, I
2 couldn't do the normal things that you would do when
3 you're right-handed. You can't write. You can't cook.
4 You can't do the things that you would normally do.
5 You can't even go to the bathroom, you know, without
6 struggling.
7 Q. While your arm was in the sling for the radius
8 fracture, Mr. Cronfel, were you experiencing any pain
9 in your right wrist?
10 A. Yes, I was. I had complained about the pain
11 from -- in my right wrist to Dr. Windler and
12 Dr. Keinarth.
13 Q. Were you more focused on the fractured radius
14 bone than you were the wrist at that time?
15 A. Yes, I was.
16 Q. How come?
17 A. Well, for one, I was concerned about the
18 surgery; and number two, the doctor seemed to be more
19 focused on that.
20 Q. Did you ever discuss your right wrist with
21 Dr. Windler?
22 A. On every occasion that I saw him, I discussed
23 it with him.
24 Q. I'm going to show you an excerpt from
25 Dr. Windler's records. Do you recall going to see
139
1 Dr. Windler on October 21st, 2009?
2 A. Yes, I do.
3 Q. And that was just less than about three months
4 after you were attacked by defendant's dog?
5 A. That's true.
6 Q. At that time, were you feeling any pain up by
7 the elbow where the fractured radius was?
8 A. My -- my elbow by that time was healing, and I
9 was feeling a lot better about that elbow. I was on my
10 way -- I was happy with where I was at that point with
11 regard to my elbow.
12 Q. Have you noted pain anywhere else in your
13 right arm or hand at that time?
14 A. In my wrist, in this area here.
15 Q. How long had you experienced that pain that
16 you just showed us?
17 A. From the moment that I had the impact from the
18 dog attack.
19 Q. Do you see where on this record it says,
20 quote, He has noted soreness in the region of the
21 distal radius and ulna. Do you see that?
22 A. Yes.
23 Q. Can you point us to where you were
24 experiencing that soreness?
25 A. The soreness was right here where this bone
140
1 is. This is where the radius -- well, the ulna comes
2 into the wrist.
3 Q. Do you see also where it says that you have
4 discussed the possibility of soreness in that area of
5 your wrist secondary to fracture of the radius bone?
6 A. Yes.
7 Q. Do you have an understanding of what that
8 means?
9 A. Well, that was the first time that I
10 understood that a break here can cause problems here.
11 Q. That a break up here by your elbow could cause
12 problems all the way down by your wrist?
13 A. Right.
14 Q. And even though your radius fracture had
15 healed, were you still concerned about the pain in your
16 wrist?
17 A. Yes.
18 Q. Now, despite the continuing pain in your right
19 wrist, what was your understanding of whether you
20 should try to engage in your regular activities at that
21 time?
22 A. I was told -- I understood, excuse me, that I
23 was to try to go back to my normal activities with pain
24 as a guide.
25 Q. And did you do that?
141
1 A. Yes. I tried my best to do that.
2 Q. Did you return at some point to Dr. Windler's
3 office regarding your right wrist pain?
4 A. Yes, I did.
5 Q. I'm showing you an excerpt, again, from
6 Dr. Windler's office notes. Have you seen this
7 progress note?
8 A. Yes, sir.
9 Q. This was a June 14th, 2010 visit to
10 Dr. Windler; is that right?
11 A. Yes, sir.
12 Q. Why did you go back to Dr. Windler on that
13 date?
14 A. Well, I went for two reasons. I was having
15 some knee problems at that time, but I also went to see
16 about my wrist as well.
17 Q. At that time -- actually, let me scratch that.
18 Did you and Dr. Windler review the July 24th, 2009
19 X-rays of your right wrist at that time?
20 A. Yes. We reviewed those -- the X-rays that
21 were taken after the day of the dog attack again.
22 Q. Do you know if Dr. Windler reread those July
23 24th X-rays and looked at the wrist with you?
24 A. Yes, he did.
25 Q. And just so we're all clear, the July 24, 2009
142
1 X-rays that you reviewed with Dr. Windler, those were
2 the ones -- those were the ones done the day after the
3 attack?
4 A. Yes, they were.
5 Q. And what was your understanding of the reread
6 of those July 24, 2009 X-rays?
7 A. My understanding was that I had -- that as a
8 result of the dog attack and the impact on the
9 pavement, my ligament across the hand, the scapholunate
10 ligament, was torn, and that I had broken a bone in the
11 wrist called the lunate, and there was pressure from
12 the ulna into my wrist as well.
13 Q. So it was your understanding that you had torn
14 a ligament in your right wrist?
15 A. That's correct.
16 Q. And that was the scapholunate ligament?
17 A. That's correct.
18 Q. And was it your understanding even at that
19 time that that was the from July 23rd, 2009 incident?
20 A. That's correct.
21 Q. Did you have any other injuries to your right
22 wrist from July 24th, 2009, through the visit you had
23 with Dr. Windler in June of 2010?
24 A. No, I did not.
25 Q. Did Dr. Windler at that time send you to get
143
1 another imaging study, an MR arthrogram of your right
2 wrist?
3 A. Yes, he did.
4 Q. And did you undergo that study?
5 A. Yes, I underwent that study.
6 Q. I'm showing you a document excerpted from
7 Dr. Windler's medical records. Have you seen this
8 document before?
9 A. Yes, I have.
10 Q. This document says it's an MR arthrogram of
11 your right wrist on June 22nd, 2010. Do you remember
12 doing that procedure at River Ranch Radiology?
13 A. Yes, I do remember undergoing that procedure.
14 Q. Can you explain to us what that procedure
15 entailed?
16 A. You arrive there, and they -- they -- they
17 took me into this room, which had a surgical bed. They
18 sat me down, and I had put on like a frock. And then
19 they put a big sheet over my wrist with a big hole over
20 the wrist -- over the wrist area here, a big sheet over
21 my arm. And then a nurse rolled in a tray with two big
22 shots, and then a doctor came in and put one shot in to
23 administer some kind of numbing. And then they took
24 the next shot with a much bigger needle, and it went
25 right into the joint so they could put the dye into the
144
1 joint.
2 And then after they did that, they put me
3 into a little -- little -- sort of a little -- an MRI
4 machine on a bed where they roll you in, and you're in
5 this enclosed space for 45 minutes, built like a
6 coffin, and makes these noises.
7 Q. Did that procedure hurt?
8 A. The needles hurt very much.
9 Q. But you also got the results of that MR
10 arthrogram. And do you recall reading the impressions
11 of that report?
12 A. Yes.
13 Q. And what was your impression at that time?
14 A. That I had, as a -- as a result of the tear,
15 that I had arthritis in my wrist and that there was
16 some changes, negative changes, bad changes.
17 Q. What do you mean "negative changes"?
18 A. That there had -- there had been -- arthritis
19 had been developed as a result of the scapholunate
20 tear, the large scapholunate tear.
21 Q. So was it your understanding that the reason
22 that you had arthritis on this June 2010 arthrogram --
23 let me strike that question.
24 A. Okay.
25 Q. What was your understanding of the reason you
145
1 had arthritis, as revealed by that arthrogram in June
2 of 2010?
3 A. I -- I had arthritis as a result of the tear
4 which was caused by the dog attack.
5 Q. And was -- just so we're absolutely clear, was
6 it your understanding that this was traumatic arthritis
7 as opposed to degenerative type of arthritis?
8 A. Yes.
9 MR. PAYNE: Objection; predicate, Your
10 Honor.
11 THE COURT: That's sustained.
12 Q. (BY MR. CAGLE) Did you review the 2010
13 arthrogram with your physicians?
14 A. Yes, I did.
15 Q. And were you familiar with the results of that
16 arthrogram?
17 A. I remember reviewing it.
18 Q. Because the results were part of your -- the
19 way you design your course of treatment?
20 A. That's right.
21 Q. Do you know if that 2010 arthrogram showed any
22 injury to your scapholunate ligament?
23 A. I can't read them, but I was -- I understood
24 it tore the scapholunate ligament.
25 Q. Prior to July 23rd, 2009, to your knowledge,
146
1 had you ever been diagnosed with a large scapholunate
2 ligament tear in your right wrist?
3 A. No, I had not.
4 Q. After Dr. Windler reread the July 23rd, 2009
5 right wrist X-ray and after you got these arthrogram
6 results, did you continue to treat with him or were you
7 sent elsewhere?
8 A. I was sent elsewhere.
9 Q. Were you sent to Dr. Robert Walters?
10 A. Yes, I was.
11 Q. I'm going to show you a page out of
12 Dr. Walters' records, which have been admitted into
13 evidence in this case. When did you first go see
14 Dr. Walters?
15 A. It says there August 4th of 2010.
16 Q. So a little more than a month after
17 Dr. Windler referred you over there?
18 A. Yes.
19 Q. Did Dr. Walters examine you during that visit?
20 A. Yes, he did.
21 Q. What area was he looking at during that
22 examination?
23 A. He was looking at my ulna and the radius.
24 Q. Did Dr. Walters give you a diagnosis at that
25 time?
147
1 A. Yes, he did.
2 Q. And what was your understanding of that
3 diagnosis?
4 A. His diagnosis was that they were going to have
5 to break my ulna and saw off a piece of the bone to
6 shorten it in order to make it equal to the radius so
7 that I wouldn't have the ulna smashing up into my hand
8 causing pain and problems.
9 Q. And so, Mr. Cronfel, are you familiar with the
10 term ulna impact syndrome?
11 A. Yes, I am.
12 Q. Did you ever discuss surgical treatment
13 options for your ulna impact syndrome with Dr. Walters?
14 A. Yes, I did.
15 Q. And can you tell us, in your own words, what
16 your understanding of that surgical procedure entailed?
17 MR. PAYNE: Objection; predicate.
18 MR. CAGLE: Your Honor, he has personal
19 knowledge of what his understanding of what the
20 surgical procedure was.
21 MR. PAYNE: Okay. Let me add repetitive.
22 We've gone through this with Dr. Lown.
23 THE COURT: I'm going to overrule that
24 objection.
25 MR. CAGLE: Thank you, Judge.
148
1 A. Can you ask the question again, please?
2 Q. (BY MR. CAGLE) Sure. Tell us briefly, if you
3 could, what was your understanding of this ulna
4 surgical procedure.
5 A. That they were going to break my ulna, saw off
6 a piece of it, and put two plates and screws into it.
7 Q. How did that make you feel when you heard that
8 that was the surgical plan?
9 A. When Dr. Walters explained this to me, I was
10 shocked. I was nauseous. I broke out in a cold sweat.
11 It was -- it looked like a medieval torture of some
12 sort. I couldn't believe that this was going to
13 happen.
14 Q. After that surgery, was it explained to you,
15 Mr. Cronfel, on August 4th, 2010 -- was there a day
16 that had gone by that you hadn't thought about that
17 surgery?
18 A. I know I thought about it a lot and it worried
19 me a lot. I had already experienced the inconvenience
20 and the problems of not being able to use my right
21 hand. And I had concerns about the pain and the
22 recovery associated with that; made me panicky and
23 nauseous to think about it.
24 Q. As you sit here today, have you had that ulna
25 surgery?
149
1 A. Yes, I have.
2 Q. Before we go on with the injuries that we're
3 here to discuss and the surgery that you've already had
4 and the surgery that you're going to have, I want to
5 talk about some injuries you had from long ago. Okay?
6 A. That's fine.
7 Q. Before you saw Dr. Walters on August 4th,
8 2010, you also saw him in November of 2005. Do you
9 recall that?
10 A. Yes, I do.
11 Q. I'm showing you an excerpt from Dr. Walters'
12 records dated November 16th, 2005. Have you seen that
13 document before?
14 A. Yes, I have.
15 Q. This document says that in September 2005, you
16 fell off your bike and tried to block your fall with a
17 right hand. Do you recall that incident?
18 A. Yes, I do.
19 Q. When you fell off your bike in 2005, were you
20 riding through your neighborhood or were you out on the
21 mountain biking trails?
22 A. I was on the greenbelt on the -- on the
23 mountain bike.
24 Q. And what was your understanding of your
25 diagnosis at that time back in 2005?
150
1 A. I understood that I broke a little -- a bone
2 here on the palm of your hand called the hook of the
3 hamate by pressing -- by trying to break my fall.
4 Q. I'm going to show you another excerpt from
5 Dr. Robert Walters' records. Do you recall undergoing
6 a CT scan back in 2005 of your right wrist?
7 A. Yes, I do.
8 Q. Let's take a look at that CT scan from 2005.
9 This was about four years before the July 23rd, 2009
10 incident. Is my math right?
11 A. It's in the vicinity.
12 Q. And do you see where the results of the
13 November 2005 CT of the right wrist show a fractured
14 hamate?
15 A. Yes.
16 Q. Were there any other fractured bones in your
17 hand?
18 A. No.
19 Q. Do you see where it says questionable mild
20 widening of the scapholunate articulation?
21 A. Yes, I do see that.
22 Q. And it says, Ligamentous injury cannot be
23 excluded. Do you see that?
24 A. I see that.
25 Q. Was it your understanding that your
151
1 scapholunate ligament had a mild widening or a large
2 tear back then?
3 A. I understood a mild widening.
4 Q. Was it ever your understanding that you had a
5 large tear in your scapholunate ligament of your right
6 wrist back in 2005?
7 A. I don't remember that being the case.
8 Q. Did you ever discuss or have you ever recalled
9 discussing having surgery for any injury to your
10 scapholunate ligament in your right wrist in 2005?
11 A. I do not recall any discussions about a
12 surgery to my scapholunate.
13 Q. Did you ever discuss other surgeries or
14 another surgery in your right hand back in 2005?
15 A. Yes.
16 Q. What was that?
17 A. There was -- we discussed surgery to repair
18 the hamate bone if it was not going to heal on its own.
19 Q. And did you end up having that surgery on the
20 hamate bone?
21 A. No, I did not.
22 Q. Did you get a follow-up MRI on your right
23 wrist back in December of 2005?
24 A. Yes, I did.
25 Q. And do you see the results of the MRI mention
152
1 the hamate fracture?
2 A. Yes, sir.
3 Q. Was it your understanding that the hamate
4 fracture was still healing at that point in December
5 2005?
6 A. I think it was -- yes, it was still healing.
7 Q. Do you see where the tendons of your right
8 wrist in this December 2005 MRI -- it says that they
9 showed no evidence of tenosynovitis or other
10 abnormality. Do you see that?
11 A. I see that.
12 Q. Do you have an understanding as to whether the
13 tendons in your right wrist were normal or abnormal in
14 December of 2005 after the fracture healing?
15 A. Well, I don't know what that means, but I know
16 that I didn't have any problems with my tendons.
17 Q. Do you see where it says "disruption of the
18 scapholunate ligament"?
19 A. Yes, I do see that.
20 Q. Was it ever your understanding that you had a
21 significant injury to your scapholunate ligament at any
22 time in 2005?
23 A. No, it was not. I never understood that to be
24 the case.
25 Q. Did you have pain in your right wrist during
153
1 2005 when you fractured the hamate bone in your right
2 hand?
3 A. I did have pain, but it dissipated after a
4 little while.
5 Q. Had any pain associated with that hamate
6 injury, whether it be in the wrist or the hand, lasted
7 longer than, let's say, the first couple of months into
8 2006?
9 A. No.
10 Q. Did you have any continued or lingering pain
11 in your hand or wrist after the hook of the hamate
12 fracture healed?
13 A. No, I did not.
14 Q. Did you have any restricted range of motion in
15 your hand or your wrist after the hook of the hamate
16 fracture of 2005 healed?
17 A. No, I did not.
18 Q. I want to show you an excerpt from
19 Dr. Walters' records. It's a -- a chart note from his
20 office. Have you seen this document before?
21 A. Yes.
22 Q. After the hamate fracture healed, you saw
23 Dr. Walters again?
24 A. Yes, I did.
25 Q. And what date did you see him again?
154
1 A. It says there March 14th, 2007. I presume
2 that's correct.
3 Q. And what injury did you suffer that sent you
4 to Dr. Walters in 2007?
5 A. I believe I broke a finger on my left hand.
6 Q. And can you look at this record from
7 Dr. Walters and tell us if you ever complained of pain
8 to your right wrist when you saw Dr. Walters in March
9 2007?
10 A. Yes, I can, and I did not.
11 Q. And just so the folks on the jury are clear,
12 this broken left finger, this is not part of the claims
13 that you're making here today?
14 A. No, it is not.
15 Q. But, nonetheless, you broke your finger and
16 had to go see Dr. Walters in 2007?
17 A. Yes.
18 Q. Was that your left finger?
19 A. It was my left finger. I believe it was my
20 left finger.
21 Q. You didn't mention any pain in your right
22 wrist to Dr. Walters in March 2007, but would you have
23 told Dr. Walters if you did have right wrist pain in
24 2007?
25 A. Yes, I would have.
155
1 Q. And can you look at this record from
2 Dr. Walters' office and tell us if you complained of
3 any restricted range of motion in your right wrist in
4 2007?
5 A. Yes, I can, and, no, I didn't.
6 Q. Would you have told Dr. Walters if you did
7 have restricted motion in your right wrist in March of
8 2007?
9 A. I would have told him.
10 Q. So in 2007, two years after the hamate
11 fracture in 2005, did you have any pain or restricted
12 range of motion in your right wrist or hand at all?
13 A. I did not.
14 Q. Did you ever discuss any residual pain or
15 restricted range of motion in your right wrist with
16 Dr. Walters in 2007?
17 A. I did not.
18 Q. I'll show you another excerpt from
19 Dr. Walters' records. This is a chart note from
20 January 2008.
21 A. Yes, sir.
22 Q. Do you recognize that document?
23 A. Yes, sir.
24 Q. Can you tell us what injury you saw
25 Dr. Walters for in 2008?
156
1 A. I broke the tip of my finger, my middle finger
2 on my right hand.
3 Q. And this was about a year or -- more than a
4 year and a half before the July 23rd, 2009 incident?
5 A. That's right.
6 Q. And can you look at this record in January
7 2008, tell us if you had any complaints of pain to your
8 right wrist during your visit with Dr. Walters this
9 time?
10 A. I don't think I did.
11 Q. And can you look at this record and can you
12 tell us, Mr. Cronfel, if you had any complaints of
13 restricted motion in your right wrist in 2008?
14 A. I did not. I can look at it, and I did not.
15 Q. Are those complaints of pain something that
16 you would have told your doctor at that time?
17 A. Yes, I would have.
18 Q. During those visits, did you mention anything
19 to Dr. Walters about any problems that you had
20 lingering from the 2005 hamate fracture?
21 A. I'm sorry. Can you repeat that question?
22 Q. Sure. During these visits with Dr. Walters,
23 did you ever tell him about lingering problems from the
24 hamate fracture.
25 A. No, I did not.
157
1 Q. So when you saw Dr. Walters in 2000 and
2 2000 -- in 2007 and 2008, had the injuries from 2005
3 resolved, to your understanding?
4 A. Yes.
5 Q. Did you ever see Dr. Walters or any other
6 medical provider in between this January 2008 visit and
7 the day after the dog attack regarding wrist pain?
8 A. Can you -- can you repeat that question?
9 Q. Sure. Did you ever see Dr. Walters or any
10 other medical provider after this January 2008
11 appointment and before the day of the dog attack?
12 A. No.
13 Q. Regarding wrist pain?
14 A. Right.
15 Q. Do you recall the last time you saw
16 Dr. Walters he draw you a picture of the ulna
17 shortening surgery, but after that date, did you ever
18 see Dr. Walters again?
19 A. No, I did not.
20 Q. Unfortunately, Dr. Walters passed away while
21 he was treating you in 2010?
22 A. That's correct.
23 Q. Once Dr. Walters passed away, were you
24 ultimately referred to another doctor for the injuries
25 you suffered in the 2009 attack?
158
1 A. Yes. I discovered that Dr. Walters had passed
2 away, so I called Dr. Windler's office. And they
3 referred me to another hand specialist, Dr. Vagner.
4 Q. Is that Dr. Vagner of Orthopaedic Specialists
5 of Austin?
6 A. Yes.
7 Q. I'm showing you an excerpt from Dr. Vagner's
8 records?
9 A. Yes, sir.
10 Q. Do you recall going to see Dr. Vagner at
11 Orthopaedic Specialists of Austin in March of 2011?
12 A. Yes, I do.
13 Q. In looking at this medical record, it
14 indicates that your right wrist pain started in July of
15 2009. Do you see that?
16 A. Yes, I do.
17 Q. Is that accurate?
18 A. Yes, that's the date of the dog attack.
19 Q. When you first saw Dr. Vagner, where were you
20 experiencing the most pain?
21 A. On the -- this part of the wrist and on the
22 other side of the wrist as well.
23 Q. When you first saw Dr. Vagner, were you
24 experiencing impaired range of motion in your wrist?
25 A. Yes, I was.
159
1 Q. Did you tell Dr. Vagner during that visit if
2 the pain had gotten better or worsened since --
3 A. It had worsened.
4 Q. -- since July 2009?
5 A. It had worsened.
6 Q. Can you tell us what Dr. Vagner did for you,
7 if anything, to help your right wrist pain and limited
8 range of motion?
9 A. Dr. Vagner gave me a steroid shot. He put a
10 needle into my wrist, which was not a pleasant
11 experience.
12 Q. How do you feel about needles? Do you like
13 needles?
14 A. I -- I hate needles.
15 Q. Did that injection help you?
16 A. It helped for a little while, but it
17 dissipated.
18 Q. Did you continue to see Dr. Vagner after that
19 injection?
20 A. No, I did not.
21 Q. Were you referred to another hand specialist?
22 A. Yes. I was referred to my current doctor,
23 Dr. Lown.
24 Q. That's the Dr. Lown that just came up here
25 today and took us to class?
160
1 A. Yes.
2 Q. I'm going to show you an excerpt from
3 Dr. Lown's records. Can you tell us the first date
4 that you saw Dr. Lown?
5 A. It says here August 11th, 2011.
6 Q. And what was your understanding of your
7 diagnosis at that first appointment with Dr. Lown at
8 Austin Hand Group?
9 A. That I had a broken -- I had an ulna that
10 needed to be shortened and that I had a torn
11 scapholunate ligament that needed to be addressed.
12 Q. Was there anything different in that diagnosis
13 compared to the other diagnoses you had heard in the
14 past to your understanding?
15 A. No.
16 Q. Did you do anything to help try to get
17 yourself better or try to put this surgery off, or did
18 you have the surgery right away?
19 A. No. I -- I understood from Dr. Lown that I
20 was to put it off as long as I could. And Dr. Lown
21 prescribed physical therapy for me, and I've been
22 undergoing physical therapy since that date. I'm still
23 undergoing physical therapy. And so I was constantly
24 going to physical therapy and seeing the doctor as
25 needed for these issues, and I was also -- I was also
161
1 given home exercises, which would include using like a
2 rubber band to do exercises for the wrist, and
3 stretching exercises, you know, and taking Ibuprofen
4 and then icing it here and there.
5 Q. Icing it here and there?
6 A. Well, I would sometime forget to ice it, but I
7 would try to be good about it.
8 Q. When you had formal physical therapy at
9 Dr. Lown's office under his supervision, did you leave
10 that physical therapy session sometimes feeling some
11 pain?
12 A. Yes. I don't know what they call it, but the
13 physical therapist, they sort of crank you and pull you
14 and move you around, and it -- it can be painful. And
15 so you can leave there feeling worse than when you got
16 there.
17 Q. It can leave you feeling worse than when you
18 got there? Did you ever talk about that with the
19 physical therapist?
20 A. Yes, I did. My understanding was that these
21 things were needed so that I could get better.
22 Q. Was it your understanding that sometimes the
23 physical therapy, while it can help you get stronger
24 and -- and try to recover, it could also be painful?
25 A. Yes.
162
1 Q. Were you ever concerned after leaving the
2 physical therapist's office that, because of the
3 temporary increase in pain, that you had actually made
4 your injury worse?
5 A. I asked about that, yes.
6 Q. And tell us about what your understanding was
7 regarding pain versus making an injury worse?
8 MR. PAYNE: Objection; predicate,
9 hearsay.
10 MR. CAGLE: Your Honor, can we approach?
11 THE COURT: Yes.
12 (Bench conference off the record.)
13 Q. (BY MR. CAGLE) Do you know whether the
14 shortening procedure recommended by Dr. Lown was the
15 same or different that recommended by Dr. Walters?
16 A. I believe it was the same.
17 Q. As you sit here today, is it your
18 understanding that you need a wrist fusion surgery?
19 A. It's my understanding I need a four-corner
20 wrist fusion surgery.
21 Q. Is one of the goals of that surgery to help
22 you with pain?
23 A. Yes.
24 Q. And you have not undergone the wrist fusion
25 surgery yet, have you?
163
1 A. No, I have not.
2 Q. But you underwent the ulna shortening surgery
3 in September; is that right?
4 A. That's correct.
5 Q. Why did you wait so long to have the ulna
6 shortening surgery?
7 A. For a number of reasons. Number one, Dr. Lown
8 suggested that I wait as long as I could; number two,
9 he sent me to physical therapy, and we were monitoring
10 things that were going on with physical therapy. I
11 have a trainer who was aware of what was going on with
12 the physical therapist and the doctor, so we were doing
13 things to try to keep the training and alter the
14 training to not make the injury worse.
15 And then, I'm right-handed. I had
16 already experienced significant disruption in my life
17 from daily activities to work and -- as a result of
18 that, and I knew that it would be another significant
19 interruption.
20 Q. You ended up having that procedure in
21 September of this year?
22 A. Yes, I did.
23 Q. I'm showing you an excerpt from the operative
24 report in that case. Have you seen this document
25 before?
164
1 A. Yes, I have.
2 Q. Okay. Not on the screen, but in the full
3 document, it mentions an automobile accident in August
4 of 2012. Do you recall that discussion?
5 A. Yes, I do.
6 Q. Did you ever injure your right wrist or hand
7 in August of 2012?
8 A. No, I did not.
9 Q. Did you injure your other hand, your left-hand
10 around that time?
11 A. Can you repeat that?
12 Q. Yeah. Did you ever injure any -- your left
13 hand at that time?
14 A. I injured my left hand August 5th of, what was
15 it, 2012, I believe.
16 Q. But were you involved in a car accident of any
17 kind in August of 2012?
18 A. No.
19 Q. Have you suffered any other trauma or injury
20 to your right arm or wrist since July 23rd, 2009?
21 A. No, I have not.
22 Q. I'm showing you an excerpt from Dr. Lown's
23 medical records. Have you seen this X-ray photograph
24 before?
25 A. Yes.
165
1 Q. And what's your understanding of what this
2 X-ray shows?
3 A. This shows my right arm -- arm as it is today
4 with those plates and those screws in it.
5 Q. Do you know if, ultimately, those two sections
6 of your ulna bone were successfully fused together?
7 A. My understanding is that they have been
8 successfully fused.
9 Q. Were you put under general anesthesia for this
10 procedure?
11 A. Yes, I was.
12 Q. Did that cause you any angst or anxiety?
13 A. Well, you know, sometimes people don't come
14 out of anesthesia.
15 Q. Were you worried about it?
16 A. Yeah. You've got to be worried any time you
17 go into surgery.
18 Q. Mr. Cronfel, how did you sleep the night
19 before you had the ulna shortening surgery?
20 A. Not very well. For weeks before that surgery,
21 knowing that somebody was going to break my arm and saw
22 a piece of bone off and put screws in there like that
23 was scary. It was -- I spent several sleepless nights
24 and would wake up in a panic, be nauseous.
25 Q. Was that surgery performed at the Arise
166
1 Surgical Center?
2 A. Yes.
3 Q. That's on Bee Caves Road?
4 A. Yes.
5 Q. What time did you have to get there that
6 morning?
7 A. 7:00 a.m.
8 Q. What time were you put under anesthesia?
9 A. Around 9:00.
10 Q. How did you feel when you woke up after that
11 surgery?
12 A. I felt terrible pain. I had asked about a
13 nerve block beforehand, and I understood that they
14 couldn't give me the nerve block because they wanted to
15 see how my nerves were after the surgery. So when I
16 woke up, I had no nerve block, and I had tremendous
17 pain. There was a -- a nurse right there to give me
18 some -- some pills for the pain. I don't know what
19 they call them. They were some kind of strong pills.
20 And then I -- a doctor came and stuck a very large
21 needle in my neck to deaden, to block the nerve.
22 Q. And was that nerve blocked? I mean, did you
23 feel numbness?
24 A. After awhile, the numbness came, but I lost
25 all voluntary muscle control, too, so my arm was just
167
1 hanging for about 24 hours. And it would just kind of
2 sway. I would have to hold onto it and carry it
3 around.
4 Q. How long did you experience that level of pain
5 after that surgery?
6 A. 24 hours or so.
7 Q. And after that, were you able to manage the
8 pain postoperatively after the procedure with pain
9 medication?
10 A. I tried to, but it still hurt a lot. For
11 several weeks it was very difficult and extremely
12 painful. And on days like today when it's cold, I can
13 feel that pain in there from those -- from that metal
14 in my body.
15 Q. Do you know if that's ever going to go away?
16 A. I -- I don't -- I don't know.
17 Q. Were you put in a cast after the ulna
18 shortening surgery?
19 A. I was put in a soft cast for a couple of days
20 and then in a hard cast.
21 Q. I'm going to show you a photograph. Is that
22 the cast, the soft cast you're wearing right
23 afterwards?
24 A. Yes.
25 Q. You don't look super happy in that photograph.
168
1 Can you tell us what you were -- what was going through
2 your mind then?
3 A. I'm in pain. You know, that's a day or two
4 after the surgery. I'm -- I'm just trying to function.
5 Q. I'm showing you another photograph that's been
6 admitted as Exhibit 1. Can you tell us what this
7 photograph is?
8 A. This is the scar from the surgery, the ulna
9 shortening surgery.
10 Q. Do you know whether or not the scar in this
11 photograph is going to be permanent in nature?
12 A. My understanding, it's going to be permanent
13 in nature.
14 Q. How does that make you feel?
15 A. It doesn't make me feel good. I -- you know,
16 I don't expect to go be in pictures or anything like
17 that, but, you know, a permanent scar like that is a
18 daily reminder of what you've been through, this
19 five-year ordeal that hasn't finished yet.
20 Q. As you sit here today, Mr. Cronfel, do you
21 have any other surgeries scheduled right now?
22 A. No, I don't.
23 Q. Do you intend on having any other surgeries?
24 A. Yes, I do.
25 Q. What surgeries will that be?
169
1 A. I'm going to have the four-corner fusion that
2 Dr. Lown spoke about earlier this morning.
3 Q. Do you expect to have any physical impairment
4 in your wrist and hand movement after that surgery?
5 A. My understanding is that after that surgery,
6 I'm going to be permanently impaired. I'm going to be
7 impaired for the rest of my life.
8 Q. Nonetheless, is it still your intention to do
9 the surgery?
10 A. Yes. The pain and the interference of my
11 daily life, yes.
12 Q. And so even after the ulna surgery, the one
13 where the ulna was shortened, you're still experiencing
14 pain in your wrist?
15 A. Yes.
16 Q. And tell us about how often you feel that
17 pain. Do you feel it every day?
18 A. I feel it every day, yes.
19 Q. Let's just go through a normal day for you.
20 When you first wake up, when's the first time that you
21 feel that pain in your wrist?
22 A. I feel it when I'm reaching over to hit the
23 alarm clock, or when I'm trying to brush my teeth. I'm
24 starting to use my left hand for a lot of things, or
25 when I try to soak myself in the bathroom in the
170
1 morning. Buttoning shirts is really difficult, making
2 coffee, taking -- trying to get a gallon of milk out of
3 the refrigerator. I now have to do that with my left
4 hand because it hurts to much to get a gallon of milk
5 out of the refrigerator.
6 Q. Thank you. I'm going to show you another note
7 from Austin Sports Medicine. This is Dr. Carey
8 Windler. Do you see that record?
9 A. Yes.
10 Q. Okay. Have you seen that document before?
11 A. Yes, I have.
12 Q. Has it been your experience that you have a
13 temporary increase in pain in your right wrist when you
14 work on the computer?
15 A. Yes.
16 Q. Do you -- do you experience a temporary
17 increase in pain when you do exercises?
18 A. Yes, I do.
19 Q. Do you experience a temporary increase in pain
20 when you do push-ups or pull-ups?
21 A. I did. We don't do them anymore.
22 Q. You don't do what anymore?
23 A. Push-ups or pull-ups.
24 Q. But just like push-ups and pull-ups, do you
25 experience temporary increases in pain if you're
171
1 writing with pen and paper a lot?
2 A. Yes.
3 Q. And the same way with typing at a keyboard?
4 A. Yes.
5 Q. Can you go through a normal day of work
6 without typing on a keyboard?
7 A. No, I can't.
8 Q. I don't know if anybody can anymore. I was
9 just curious. So certainly you cannot, can you?
10 A. No. I type until it starts hurting, then I
11 get somebody to help me.
12 Q. Have you actually had to -- have you had to
13 hire somebody to come help you?
14 A. Somebody -- I hired somebody to help me type
15 and to write notes for me.
16 Q. Have you made any changes in your exercise
17 routine as a result of these injuries?
18 A. I made changes that the therapist and that my
19 trainer suggest as guided by pain. They suggest --
20 they ask me -- they monitor me when I'm working out.
21 The therapist -- sometimes I'll make a mistake. She'll
22 tell me, you need to change this. The same thing with
23 the trainer, and we make adjustments, but I'm not going
24 to stop trying to live my life. I'm going to try to
25 keep exercising and try to keep doing things that I
172
1 like to do, but with pain as a guide.
2 Q. Since the date of these injuries in July of
3 2009, have you exercised with the same amount of weight
4 and repetitions as you did before?
5 A. No. That has changed over time. And, again,
6 as I said, I'm listening to people who are
7 professionals, who are watching me and suggesting
8 changes. I try to follow them.
9 Q. What about something fun like bowling? Can
10 you go bowling anymore?
11 A. No.
12 Q. Could you bowl before?
13 A. Yes, I did.
14 Q. I want to show you -- I saw a kettle bell here
15 in the courtroom earlier. I've never seen that before.
16 A. It's right there.
17 Q. Oh, there it is. Do you work out a lot with
18 kettle bells?
19 A. No.
20 Q. I'm showing you this chart note from
21 Dr. Lown's office. And you can see it's dated February
22 13th of 2013. It says, Patient worked out with
23 kettles, and it has aggravated his musculature. Do you
24 see that?
25 A. Yeah.
173
1 Q. Do you recall ever having an instance with
2 kettle bells that -- where you injured your wrist?
3 A. I didn't injure it. I increased the pain, but
4 we stopped after that.
5 Q. Was the increase in pain after using kettle
6 bells any different than the temporary increase of pain
7 you would experience, say, typing a lot or writing a
8 long letter?
9 A. It might be a little bit more, but it'll
10 dissipate after a while after icing and doing things,
11 and I would go see the therapist or taking Ibuprofen.
12 Q. Would you describe the temporary increase in
13 pain that you felt after using the kettle bells on this
14 date to be similar or much different than the pain that
15 you felt after engaging in the physical therapy
16 sessions in Dr. Lown's office?
17 A. There's some similarities.
18 Q. And just so we're all clear, that chart note
19 on kettle bells is February 13, 2013. When you first
20 saw Dr. Lown in August of 2011, was it your
21 understanding that you were a candidate for a wrist
22 fusion?
23 A. Yes, and for the ulna shortening.
24 Q. Has it been your understanding, after being
25 treated by your medical doctors, that exercising has
174
1 ever made your injuries worse?
2 A. Can you repeat that question?
3 Q. Is it your understanding that exercising has
4 made any of your injuries worse?
5 A. No, it has not.
6 Q. And as you sit here today, you intend to have
7 the wrist fusion surgery?
8 A. I do.
9 Q. Are you scared about your future in the level
10 of impairment you're facing with your hand?
11 A. Yes, I am. I've already had problems for
12 years. And to think that I'm going to face permanent
13 disablement -- another surgery, permanent disablement,
14 and the possibility that won't work is -- is
15 unsettling, so I am worried about my future. I know
16 I'm going to have to go through another surgery and go
17 through the rehabilitation process and the
18 inconvenience of it again, yes.
19 MR. CAGLE: Thank you very much,
20 Mr. Cronfel. We'll pass the witness.
21 MR. PAYNE: May I proceed?
22 THE COURT: Yes.
23 CROSS-EXAMINATION
24 BY MR. PAYNE:
25 Q. Mr. Cronfel, you and I have met before in your
175
1 deposition and a couple of things in this case, true?
2 A. Yes, sir.
3 Q. And, of course, you remember giving your
4 deposition long about a year ago, October of -- of
5 2013, right?
6 A. Yes, sir.
7 Q. And you agree that in your sworn deposition,
8 you told me back then that you had never injured your
9 right wrist before the July 2009 event, correct?
10 A. I think that later in that deposition I had
11 sort of cleaned that up a little bit.
12 Q. But at least when I asked you the specific
13 question, prior to the event that we are here for
14 today, had you previously sustained an injury to your
15 right wrist, do you remember what your response was?
16 A. What you just said, sir.
17 Q. Never, correct?
18 A. Yes, sir.
19 Q. And -- and you recall that I asked you, Prior
20 to the event that we are here for today involving
21 Mr. Murray's dog, have you ever seen a healthcare
22 provider for the purpose of treating right elbow pain
23 or right wrist pain, and you answered that I remember,
24 no, correct?
25 A. Correct.
176
1 Q. And, of course, these records reveal something
2 different, true?
3 A. Right. They weren't in front of me when I was
4 taking the deposition.
5 Q. And you didn't -- when I took your deposition,
6 you didn't remember having any therapy in 2005, and we
7 know that not to be true as well, correct?
8 A. That's true.
9 Q. And when I took your deposition, you didn't
10 remember a ligament injury, and we now know that not to
11 be true, correct?
12 A. That I didn't remember it? I don't know.
13 That's not the truth. I didn't remember it.
14 Q. Well, in fact -- well, and you were a surgical
15 candidate in 2005, were you not?
16 A. For the break of the hook of the hamate,
17 correct.
18 Q. That is -- that's your stated understanding on
19 the record, correct?
20 A. That's my understanding.
21 Q. And you do agree that you did, in fact, have a
22 ligament injury in 2005, correct?
23 A. That's what the medical records say, yes, sir.
24 Q. And you did have treatment to your right wrist
25 in 2005 with Dr. Walters, correct?
177
1 A. I don't remember whether I had treatment with
2 him in 2005 for my wrist.
3 Q. Well, at his referral to HealthSouth, correct?
4 A. I know I went to HealthSouth. I remember
5 that.
6 Q. And then you had another bike wreck in August
7 of 2012, correct?
8 A. Yes, sir.
9 Q. And you went over the handlebars, correct?
10 A. Yes. That was when I was down in the
11 greenbelt on the mountain bike, yes, sir.
12 Q. Right. Your deposition testimony was that you
13 were in the greenbelt, you went over the handlebars,
14 and you broke your left wrist?
15 A. Correct, yes, sir.
16 Q. And, of course, we -- I'm not going to pull it
17 up right now, but you've seen the medical record that
18 Dr. Lown writes that you actually struck a car in
19 August of 2012, correct?
20 A. Right, yes. He had made a mistake. Right.
21 Q. And it's your contention that's inaccurate?
22 A. Well, that portion is inaccurate, yes.
23 Q. And, of course, you -- you just testified you
24 had another bicycle accident in 2007 where you went
25 over the handlebars and you hurt your right hand,
178
1 correct?
2 A. Yes, sir.
3 Q. And very similarly -- and as a result of that
4 injury, you also had some difficulty typing, difficulty
5 gripping, difficulty writing, correct?
6 A. If that's what it says, it's true.
7 Q. And, of course, you are not claiming any lost
8 income in this lawsuit, correct?
9 A. Correct.
10 Q. And other than any doctors' appointments, you
11 haven't missed any time away from your law practice,
12 correct?
13 A. Yes, sir.
14 Q. All right. Now, this accident occurred,
15 you've talked about this, it was on July the 23rd of
16 2009 around 6:00 to 7:00 p.m., correct?
17 A. Somewhere in there, yes, sir.
18 Q. And you're on a street that you're familiar
19 with and that you rode often, correct?
20 A. Yes, sir. That's correct.
21 Q. And prior -- this was -- you talked about this
22 earlier. This was your neighborhood. You rode it.
23 You had two or three routes in the neighborhood you
24 rode hundreds of times, correct?
25 A. That's correct, sir.
179
1 Q. At no time before July 23rd, 2009, had you
2 ever noticed Mr. Murray, in particular, or his dog, in
3 particular?
4 A. That's correct, sir.
5 Q. You're not aware of any prior instances where
6 Mr. -- you had an altercation with Mr. Murray or his
7 dog, or noticed anything afoul before July 23rd, 2009,
8 correct?
9 A. That's correct, sir.
10 Q. The dog had never barked at you or jumped up
11 at you or anything like that before July 23rd, 2009,
12 correct?
13 A. That's correct, sir.
14 Q. Well, in fact, on July 23rd -- we'll talk
15 about this a little bit more -- but you're not alleging
16 that there was any barking or any contact between you
17 and the dog itself, true?
18 A. It's possible that the dog made contact as I
19 was going down to the ground, but it was so fast, it
20 would be difficult to say. But there was no barking,
21 you're right about that.
22 Q. Okay. No barking. And do you specifically
23 recall any contact between you and the dog?
24 A. My leg may have touched him, but nothing
25 that -- it was -- it might have been glancing.
180
1 Q. You agree that -- that wherever the contact,
2 if any, was, it was at your front wheel, not against
3 you and not at your back wheel?
4 A. Right. It was the front wheel, yes, you're
5 right, sir.
6 Q. And, of course, you were on a road bike?
7 A. Yes, sir.
8 Q. And that -- the road bikes are such you
9 actually have to clip into your pedals where your shoes
10 are attached to your pedals, right?
11 A. Correct, sir.
12 Q. And at the time of the accident, you were
13 coming up on parked cars, right?
14 A. Correct, sir.
15 Q. And you agree you were going pretty fast?
16 A. I was trying to pick up speed, yes, sir.
17 Q. And I think the term you might have used
18 before is, you were revving up, correct?
19 A. Yes, sir. That's correct.
20 Q. You were going pretty fast and revving up
21 beside the parked cars, correct?
22 A. That is true.
23 Q. And you agree that the rules of the road apply
24 to bicyclists just like they do to automobile drivers,
25 correct?
181
1 A. I would think so.
2 Q. Okay. The rules of the road apply to
3 bicyclists, true?
4 A. I think so, yeah.
5 Q. And a bicyclist, like anybody operating a
6 motor vehicle on a public street, you've got a duty to
7 keep a proper lookout, right?
8 A. Right.
9 Q. You've got to look at your surroundings,
10 right?
11 A. Right.
12 Q. Well, in fact, on a bicycle, you're even
13 more -- more vulnerable, and so you've got to be --
14 you've got to have this heightened sense of everything
15 that's going on around you, true?
16 A. True.
17 Q. And we -- I -- I can't bring that picture back
18 up, but you would agree, this roadway is pretty open,
19 fairly flat, correct?
20 A. It's kind of an uphill.
21 Q. A gradual uphill?
22 A. Yes, sir.
23 Q. Okay. And other than cars parked along the
24 street, there's nothing there to block your view, no
25 curves, no big hump in the road, anything like that,
182
1 correct?
2 A. Yes, sir.
3 Q. It's your testimony and contention, you never
4 saw Mr. Murray or his dog at any moment before the dog
5 came out in -- in front of you or into your path?
6 A. Yes, sir.
7 Q. And as you were going pretty fast and starting
8 to rev up, you never noticed Mr. Murray over in the
9 yard, correct?
10 A. Yes, sir. That's correct.
11 Q. And we've already talked about this, but the
12 collision, if any, occurred between your front wheel
13 and the animal?
14 A. Yes, sir.
15 Q. All right. Your helmet was not damaged in the
16 accident, correct?
17 A. There might have been some scrapes on it, but
18 not -- not -- not to where I needed a replacement or
19 anything like that.
20 Q. At least when you offered your deposition,
21 you -- you advised or swore that your helmet was not
22 damaged, true?
23 A. Right. Right.
24 Q. And other than putting on some new tape on the
25 handlebars, your bicycle was not damaged in the
183
1 accident, correct?
2 A. Right.
3 Q. And -- all right. So as you're coming up this
4 road -- remind me which roadway this was on?
5 A. I think it's Twisted Tree, sir.
6 Q. Twisted Tree. You're coming up Twisted Tree.
7 You did -- cannot offer an estimate as to how far back
8 from the dog you were when the dog entered into your
9 path, true?
10 A. I don't understand the question, sir.
11 Q. Do you have any estimate or can you offer any
12 estimate as to the distance separating you and the dog
13 as it came into your path?
14 MR. CAGLE: I mean, it clearly calls for
15 speculation, Judge.
16 THE COURT: Rephrase.
17 Q. (BY MR. PAYNE) Do you know the distance
18 separating you and Magnum, the dog, as you noticed that
19 something may occur?
20 A. He was on top of me when I noticed. It was
21 already -- he was already on top of me practically.
22 Q. Now, when you say on top of you, you don't
23 literally mean on you?
24 A. No. He was -- he came out from behind a car,
25 or, you know, he was coming out from behind a car.
184
1 When I noticed him, he was already almost making
2 contact with the bike. It was a very short distance.
3 Q. I thought I understood earlier, you felt like
4 you were far enough out in the roadway that you were
5 not concerned about a swinging door of a parked car?
6 A. Yes, sir.
7 Q. All right. So you agree would be -- what
8 distance is that? What distance made you feel safe far
9 enough away from those parked cars?
10 A. You know, three, four feet --
11 Q. Okay.
12 A. -- something like that.
13 Q. All right. So in any event, the dog, Magnum,
14 would have had to have come out three or four feet in
15 order to get up to your path, fair?
16 A. I guess so.
17 Q. So the dog would have had to move three or
18 four feet within your point of view before any contact
19 could have been made?
20 A. No. Because that's assuming that I'm seeing
21 him come in front of me. He came -- as I was passing
22 that car and came from the side this way.
23 Q. I thought we agreed it was between your front
24 wheel and the dog, if at all, the -- the contact? I
25 mean, it's not as if he's coming into you. He's coming
185
1 into your front wheel?
2 A. He came into my front wheel from the side,
3 sir.
4 Q. Okay. As you're going pretty fast and revving
5 up, the dog has an opportunity to travel four feet into
6 the side of your wheel, three feet out from a parked
7 car as you traveled up this roadway?
8 A. You know, you can come up with numbers. All I
9 can tell you is that he came into my bike from the
10 side, and I had no chance to react or avoid him.
11 Q. And you agree you did not react; you did not
12 shift to the left or the right; brake; do anything to
13 avoid the accident?
14 A. I had no chance.
15 Q. I'm sorry?
16 A. I had no chance.
17 Q. And you did not do so, true?
18 A. True.
19 Q. Now, you had just this moment in time to see
20 the dog before the accident, right?
21 A. Yes, sir.
22 Q. Okay. And you never saw the dog after the
23 accident, correct?
24 A. No. I don't remember seeing the dog after the
25 accident, sir.
186
1 Q. Okay. So we're just talking about this moment
2 in time where you saw Magnum, the dog, right? That's
3 the only time you saw him that day, was just that
4 moment, as he came out from the car and whatever
5 occurred, occurred, and then you never saw him again,
6 right?
7 A. Right. That's my memory, sir.
8 Q. Okay. And so the testimony you've offered
9 today about not seeing a leash or not seeing a collar,
10 it's based solely on that moment in time, correct?
11 A. I would agree with that.
12 Q. Okay. Now, you agree that -- at least when I
13 took your deposition, in October, about a year ago, as
14 of a year ago, you were still doing push-ups, correct?
15 A. Yes, sir.
16 Q. And about a year ago, you were still doing
17 pull-ups, correct?
18 A. Under the supervision of a therapist and a
19 trainer, yes, sir.
20 Q. And you continued to ride your road bike and
21 your mountain bike, correct?
22 A. Yes, sir.
23 Q. And you continued to lift weights, correct?
24 A. Reduced reps and amounts of weights, yes, sir.
25 Q. And you continued to water ski?
187
1 A. I water skied once.
2 Q. These neighbors that took you in, good
3 Samaritan style, do you recall their names?
4 A. No, sir.
5 Q. Did you do anything for them?
6 A. No, I didn't.
7 MR. PAYNE: Your Honor, can we approach
8 real quick?
9 THE COURT: Yes.
10 (Bench conference off the record.)
11 THE COURT: Let's go ahead and take our
12 15-minute break. It's 2:45. We'll come back at 3:00.
13 Thank you.
14 (Jury not present.)
15 THE COURT: You were giving a long
16 statement up here at the bench, and so I just wanted
17 you to be able to argue what you're arguing.
18 MR. PAYNE: Sure.
19 THE COURT: Okay.
20 MR. PAYNE: Part of our motion in limine
21 is that I would not discuss the other procedures, in
22 particular, the knee procedures and the like. But --
23 and so I approached before introducing evidence.
24 It is my contention that plaintiffs have
25 opened the door, at least to some brief questioning,
188
1 about the other surgical -- surgical procedures, the
2 five knee procedures, including the total knee
3 replacement. The reason I believe that the door has
4 been opened is the testimony about all of the fear and
5 nausea associated with having to undergo the surgery;
6 the being terrified of needles; the fear of not being
7 able to wake up from a surgery; being sad about having
8 metal in his body; the scar doesn't make him feel good
9 about himself and it's a daily reminder; when, in fact,
10 there -- there are several other procedures -- there's
11 other, presumably metal, some -- some material in his
12 body and his knee, and I just think that the door's
13 been open to discuss that, at least briefly.
14 THE COURT: Okay. What's it relevant to
15 though?
16 MR. PAYNE: Well, he -- he's -- he has
17 laid the groundwork for all this mental anguish
18 associated with having to undergo this procedure.
19 He -- he has clearly undergone similar procedures
20 before and since, which negates those claims.
21 MS. SACRA: He's saying it's -- it's
22 contributed to his delay in getting the surgery.
23 MR. CAGLE: No, that's not what he was
24 saying.
25 MR. PAYNE: Yeah. Actually, he testified
189
1 under oath that one of the reasons he was delaying the
2 surgery is he wanted to address his knee first.
3 THE COURT: What's your response?
4 MR. CAGLE: Sorry, Judge. If I may.
5 Thank you. As an initial matter, he testified that the
6 primary fear of him having the surgery is that he's
7 right-handed, and that interferes with his daily
8 activities. That's number one.
9 Number two is, the mental anguish and
10 emotional stress associated with having to undergo a
11 serious procedure like the one that he has and still
12 looks forward to doing, is that he only has to do this
13 because of this defendant's negligence.
14 If we all get older and we all have these
15 knees and things like that that we have to have worked
16 on, that's a completely different situation than
17 having -- being forced into this situation without any
18 choice. These aren't -- there's nothing elective about
19 these. These are situations he has to undergo because
20 someone else didn't care enough to take care of their
21 stuff. That's a much different situation than what --
22 what they're talking about.
23 THE COURT: And what all types of
24 questions -- do you want to get into all of his
25 different --
190
1 MR. PAYNE: It -- it would go -- it would
2 be real brief. It'd be something like this.
3 Mr. Cronfel, in fact, you know, you've testified about
4 your -- you know, the hesitation you have about
5 surgery. In fact, you've undergone five separate knee
6 surgeries, you've offered testimony that you have --
7 you have this daily reminder of a scar and fear of
8 metal in your body when, in fact, you've had a knee
9 replacement involving, you know, the same situation.
10 And that's essentially it.
11 MR. CAGLE: I just can't imagine, Your
12 Honor, how that's relevant at all to the issues in this
13 case.
14 THE COURT: Yeah, I don't -- I don't
15 think it's relevant. I'm going to say the door is
16 still closed on that.
17 MR. PAYNE: Your Honor, I mean, they
18 spent --
19 THE COURT: If you want to make an offer
20 of proof, you're welcome to put him back on the stand.
21 MR. PAYNE: Let's do it real quick.
22 THE WITNESS: Okay. May I take a comfort
23 break, Your Honor?
24 THE COURT: Yeah. Sure. We'll start in
25 five minutes.
191
1 (Recess was taken.)
2 THE COURT: I want to put on the record
3 that I've changed my mind, and I do think the door was
4 opened. Looking back at the transcript, he testifies
5 that he basically couldn't sleep, he was to worried
6 about the anesthesia, and I think that has opened the
7 door. But I want to be real -- you need to do it in
8 two or three questions. You don't have open to kind of
9 go into a lot of stuff, just two or three questions, I
10 think, is all I want to do on it.
11 MR. PAYNE: Yes.
12 THE COURT: All right.
13 MR. CAGLE: Judge, we're objecting to
14 this evidence coming in.
15 THE COURT: I understand. But he did
16 open the door, I'm fairly confident. So if you could
17 go ahead and come back up, Mr. Ochoa Cronfel. So it's
18 overruled. Sorry. Give you your ruling.
19 MR. CAGLE: Thank you.
20 (Jury present.)
21 THE COURT: We will pick back up.
22 Q. (BY MR. PAYNE) Mr. Cronfel, in the past you
23 have had several procedures -- other surgical
24 procedures done to your knees, correct?
25 A. Yes, sir, over the last 30 years I've had
192
1 several procedures.
2 Q. You have had a total knee replacement
3 performed to your right knee in August of 2010,
4 correct?
5 A. Yes, sir.
6 Q. You have hardware present in your body in
7 terms of a new knee, correct?
8 A. Yes, sir.
9 Q. And you have had multiple injections to your
10 knees in the past, correct?
11 A. Yes, sir.
12 Q. All right. Shifting gears and finishing up
13 real quickly, in case there's any confusion, I have
14 heard the term "dog attack" several times in the course
15 of this. But just so we're clear, the dog, Magnum, did
16 not bite you, correct?
17 A. Correct, sir.
18 Q. And other than this glazing blow that may or
19 may not have occurred, there was no contact between you
20 and the dog, correct?
21 A. Correct, sir.
22 Q. If there was any contact, it was just the dog
23 coming out either into your wheel, in front of your
24 wheel, beside your wheel. The contact was with the
25 wheel, correct?
193
1 A. There may have been some contact with my leg,
2 but it may have been glazing --
3 Q. Sure.
4 A. -- as you had said, sir?
5 Q. And -- and so in terms of the event in
6 question, it was dog to wheel, perhaps glazing into
7 something else, true?
8 A. My leg perhaps, yes, sir. That's correct.
9 MR. PAYNE: Pass the witness.
10 REDIRECT EXAMINATION
11 BY MR. CAGLE:
12 Q. Mr. Cronfel, in regards to any previous
13 surgeries you were just questioned about, were any of
14 those forced upon you through the negligence of someone
15 else?
16 A. No. Those were natural-age type things. And
17 with the same risks and the same concerns about needles
18 and the same concerns about coming out of anesthesia,
19 same worries.
20 Q. Okay.
21 MR. CAGLE: Thank you very much,
22 Mr. Cronfel. Pass the witness.
23 THE COURT: Okay. Thank you. You may
24 step down. You may call your next witness.
25 MR. CAGLE: Thank you, Your Honor. We'll
31
1 Thank you.
2 THE COURT: Plaintiffs may call their
3 first witness.
4 MR. CAGLE: We call Dr. Ira Lown.
5 THE COURT: Dr. Lown, it's on this side.
6 Come up through the middle. Please raise your right
7 hand.
8 (Witness was sworn in.)
9 THE COURT: Thank you. You may have a
10 seat.
11 IRA LOWN,
12 having been first duly sworn, testified as follows:
13 DIRECT EXAMINATION
14 BY MR. CAGLE:
15 Q. Good morning, Dr. Lown.
16 A. Good morning.
17 Q. Would you please introduce yourself to the
18 jury?
19 A. My name's Ira Lown. I'm a hand surgeon here
20 in Austin.
21 Q. I want to start by asking you a little bit
22 about your educational background for the folks in the
23 jury. Is that okay, Doctor?
24 A. Sure.
25 Q. You earned your undergraduate degree from the
32
1 University of Texas at Austin?
2 A. That's correct.
3 Q. Doctor, would you mind moving the mic toward
4 you a little bit?
5 A. Sure.
6 Q. So you earned your undergraduate from the
7 University of Texas here in Austin?
8 A. That's correct.
9 Q. And you attended medical school at the
10 University of Texas, Medical School in Houston?
11 A. That's correct.
12 Q. After you earned your M.D. from UT Medical
13 School in Houston, did you do a residency up in New
14 York?
15 A. Yes, I did.
16 Q. What did that residency involve?
17 A. That was general surgery.
18 Q. After you completed your residency in general
19 surgery, did you pursue a fellowship training course?
20 A. I did.
21 Q. Can you tell us what a fellowship training
22 course means?
23 A. It's extra training after specialized,
24 subspecialized training. So I did my five years of
25 general surgery in New York, and then did a year of
33
1 just hand surgery, hand and wrist surgery, in
2 Connecticut.
3 Q. So your fellowship was more narrowly focused
4 on the hand and the wrist?
5 A. Yes, sir.
6 Q. Do all doctors have fellowship training in
7 hand and wrist surgery?
8 A. No.
9 Q. Can you tell us why you were interested in the
10 orthopedic hand fellowship?
11 A. I enjoy the anatomy. It's a little more
12 intricate than the rest of the body, and you get to
13 work with bones, tendons, nerves, arteries.
14 Q. Doctor, are you a fellow in the American
15 College of Surgeons?
16 A. I am.
17 Q. And, Dr. Lown, are you a member of the
18 American Society for Surgery of the Hand?
19 A. I am.
20 Q. Do you have what's called a certificate of
21 added qualifications in hand surgery?
22 A. I do.
23 Q. Can you tell us a little bit about what that
24 means?
25 A. That is a -- it's a -- it's -- basically, it's
34
1 a test, an added test that you take after being board
2 certified, to demonstrate your knowledge of hand and
3 wrist surgery.
4 Q. Is that something that many doctors in our
5 community have or something that a few doctors have?
6 A. A few.
7 Q. Doctor, have you ever gotten paid as a hired
8 medical expert in a civil lawsuit?
9 A. No.
10 Q. And have you been hired by either side in this
11 case to be an advocate for either side?
12 A. No.
13 Q. Are you getting paid for your time here today?
14 A. Yes, I am.
15 Q. Doctor, just so everyone here is clear, that
16 you're testifying here because you just simply happen
17 to be Mr. Cronfel's treating hand surgeon; is that
18 right?
19 A. That's correct.
20 Q. And you don't care one way or another who wins
21 this lawsuit?
22 A. No.
23 Q. Are you here to give us all objective medical
24 opinions about, not just Mr. Cronfel's injuries, but
25 the treatment that he's been through thus far, his
35
1 current condition, and the medical treatment that he
2 still needs?
3 A. Yes.
4 Q. Is it your understanding, Dr. Lown, that
5 Mr. Cronfel suffered injuries to his right arm and
6 wrist as a result of a dog attack on July 23rd, 2009?
7 A. Yes.
8 Q. And, Doctor, are you familiar with Drs.
9 Margolin and Keinarth, Paul Keinarth, here in Austin?
10 A. I am.
11 Q. Were you aware that Mr. Cronfel visited
12 Dr. Keinarth's office on July 24th, 2009, just a day
13 after this incident?
14 A. Yes.
15 Q. I'm going to show you what's been admitted
16 into evidence as Margolin & Keinarth medical records.
17 Do you recognize those documents?
18 A. Yes.
19 MR. Cagle: Your Honor, may I approach
20 the witness?
21 THE COURT: Yes.
22 Q. (BY MR. CAGLE) I brought a binder for you,
23 Doctor. This might make it easier. It's tabbed for
24 you, and I'll let you know when we're at the tab that
25 I'm showing to the folks on the jury. Okay?
36
1 A. Okay.
2 Q. Would you please turn to Tab 1 in your binder?
3 A. Okay.
4 Q. I'm showing you an excerpt from the Margolin &
5 Keinarth medical records which have been admitted into
6 evidence as Plaintiff's Exhibit 2. Have you seen these
7 documents before?
8 A. Yes, I have.
9 Q. Looking at Page 2 under Assessment, is it your
10 understanding that Guillermo was experiencing pain in
11 his right shoulder, elbow, hand, and wrist on the day
12 after the dog attack?
13 A. That's correct.
14 Q. And looking at that second page, can you tell
15 us if Dr. Keinarth did a right-hand examination of
16 Guillermo on that day?
17 A. He did.
18 Q. Looking at the Margolin & Keinarth records
19 from the day after the attack, was there any indication
20 that Mr. Cronfel had a lingering hand problem from any
21 prior injury?
22 A. No.
23 Q. And what about on his right wrist, Dr. Lown?
24 On the day after the attack, were there any abnormal
25 findings of Guillermo's right wrist on that day?
37
1 A. He did say that it has edema, which is
2 swelling, and limited range of motion.
3 Q. So the document you're looking at from the day
4 after the attack shows swelling in his right wrist and
5 limited range of motion?
6 A. That's correct.
7 Q. Do those findings indicate to you whether
8 there was a traumatic injury to Guillermo's right wrist
9 the day before?
10 A. It would indicate that they did. There was.
11 Q. Can swelling and limited range of motion in
12 the wrist suggest a tear of the scapholunate ligament?
13 A. It can.
14 Q. Have you seen that before in your practice,
15 Doctor?
16 A. Yes, I have.
17 Q. Is it your understanding that X-rays were
18 ordered of the right elbow, hand, shoulder, and wrist
19 on that day?
20 A. Yes.
21 Q. And do you know if those X-rays were done?
22 A. I believe they were.
23 Q. If you turn to Tab 2, Doctor. Have you seen
24 the document that is in Tab 2?
25 A. Yes.
38
1 Q. That is an X-ray result. Do you see that?
2 A. Yes, I do.
3 Q. What does this X-ray show?
4 A. He's got a radial head-neck fracture.
5 Q. And have you treated patients with that injury
6 before?
7 A. Yes, I have.
8 Q. Just so the folks on the jury are clear, the
9 radial head fracture is shown on X-ray dated July 24th,
10 the day after the incident with the dog?
11 A. That's correct.
12 Q. I'm showing you now, Doctor, an X-ray image of
13 a right forearm. Do you see that?
14 A. I do.
15 Q. Can you tell us if -- if that's a fair
16 anatomical depiction of a right forearm?
17 A. Yes.
18 Q. And the radius is one of the bones in the
19 forearm, right?
20 A. That's correct.
21 Q. Are you able to point that out to the folks in
22 the jury?
23 A. How do you want me to do that?
24 Q. Would you mind getting up?
25 A. Go up? Sure. So this is the radius, this is
39
1 the radial head and the neck, and this is just the
2 radius, the hand is facing down. This is the ulna next
3 to it.
4 Q. Okay. And do the radius and the ulna bones,
5 do they both meet where the wrist joint is?
6 A. It's called the distal radial ulna joint.
7 It's right here.
8 Q. And can you show us on that X-ray where the
9 July 24th, 2009 noted fracture was in Guillermo's
10 radius bone?
11 A. It's up here in this area.
12 Q. It's way up there by the elbow joint?
13 A. That's correct.
14 Q. Is that kind of fracture -- how do you treat
15 that? Is it nonsurgical, or can it be surgical?
16 A. In his case, it's nonsurgical. It can be
17 surgical. Depending on the amount of damage done to
18 the bone.
19 Q. Can a radial fracture like that be painful, in
20 your experience, treating patients?
21 A. Yes.
22 Q. Can it limit motion, in your experience?
23 A. Yes.
24 Q. Does the patient have to be in a cast or a
25 sling?
40
1 A. Yes.
2 Q. How long, Dr. Lown, does a patient normally
3 have to be in a cast or a sling?
4 A. Depending on the fracture and the patient,
5 usually I keep them in a sling for a couple of weeks
6 and then start range of motion.
7 Q. Do you know if Guillermo's radius bone, after
8 it healed from this fracture of July 23rd, 2009, was it
9 shorter than it was before?
10 A. Yes.
11 Q. And how do you know that? Can you explain
12 that to us?
13 A. From subsequent X-rays. So what happens is
14 the -- these -- the radius and the ulna are at the same
15 length. They're equal. What happens with this
16 fracture is the radius sometimes gets shortened. So in
17 more recent X-rays, you'll see that this is shortened,
18 which makes the ulna a little bit longer.
19 Q. Do you call that condition an ulna impact
20 syndrome?
21 A. Yes.
22 Q. And is that a condition that -- in your
23 experience, treating Guillermo for these July 23rd,
24 2009 injuries --
25 A. Yes.
41
1 Q. -- did Guillermo have an ulna impact syndrome?
2 A. Yes, he did.
3 Q. So it's difficult for me, Doctor, sometimes to
4 understand how a fracture way up high on the radius
5 like that can affect the wrist joint, but I think you
6 just showed us how that can happen.
7 Is there any medical treatment available
8 to correct ulna impact syndrome other than surgery?
9 A. No.
10 Q. I think you can sit down now. Thank you very
11 much, Doctor.
12 A. Sure.
13 Q. When you discuss the problems caused by the
14 ulna becoming longer than the radius, can you describe
15 for us in what kinds of problems do -- does that cause
16 a patient?
17 A. Well, if the -- if the ulna is longer, it can
18 cause pain in the wrist from, twisting or rotating
19 motions, extension, inflexion. Any time there's a -- a
20 transfer of force across the wrist, when you go to grab
21 something, pick something up, squeeze something, that
22 force goes across the wrist. And the normal anatomy of
23 the wrist is no longer there.
24 Typically, in a normal wrist, the ulna
25 will take about 15 percent of the load, but when the
42
1 radius is shorter than the ulna, the ulna -- the ulna
2 takes more of the load.
3 Q. And that's a condition that can cause pain for
4 patients?
5 A. It causes pain, yeah.
6 Q. Do these problems associated with the ulna
7 impact syndrome, do they occur immediately, Doctor, or
8 do they take some time to develop?
9 A. They take some time.
10 Q. Based on your experience treating Guillermo,
11 was he suffering from those problems, too, down by his
12 wrist as a result of the radius fracture by the elbow?
13 A. Can you say that again?
14 Q. Sure. Based on your experience treating
15 Guillermo, was he having problems down at his wrist
16 joint due to that radius fracture?
17 A. Yes, yes.
18 Q. In addition to the shortened radius bone and
19 the ulna impact syndrome, Doctor, were there any other
20 injuries from that July 23rd, 2009 incident that you
21 have diagnosed Guillermo with?
22 A. He has a scapholunate ligament tear.
23 Q. And the scapholunate ligament, that's a
24 ligament in your wrist?
25 A. It's in your wrist. It's between the
43
1 scaphoid -- the scaphoid bone and the lunate bone.
2 Q. And has that scapholunate ligament tear that
3 you just mentioned, has that caused Guillermo to suffer
4 any degenerative conditions in his right wrist?
5 A. Yes, it has.
6 Q. Can you tell us about those, what types of
7 degenerative conditions have developed?
8 A. So the -- the scaphoid and lunate are
9 connected with -- imagine a ligament between here.
10 They move together when you flex and extend your wrist.
11 And when it's torn -- that ligament is torn, the bones
12 don't move together.
13 And so I always explain it to patients
14 as, imagine if you had two spoons, if they're lined up
15 normally. They fit together nicely. But now imagine
16 if you had one twisted and they don't fit together and
17 they rub together, so that -- with those bones not
18 moving together, they rub in an abnormal way and you
19 can get arthritis in the wrist, which means that the
20 cartilage is damaged on -- on the radius and on the
21 wrist bones.
22 Q. Do you refer to that arthritis as traumatic
23 arthritis?
24 A. Yes.
25 Q. So currently, Doctor, so we're clear, you've
44
1 treated Guillermo for the -- the fractured radius and
2 the resulting ulna impact syndrome and also for the
3 scapholunate ligament tear?
4 A. Yes.
5 Q. I want us to focus on the shorted radius
6 first, okay?
7 A. Okay.
8 Q. In your experience, when a patient fractures a
9 radius bone like Guillermo did, can it be painful to
10 engage in just very mundane everyday activities, like
11 shaking hands?
12 A. It can.
13 Q. And I think we've discussed this, but I want
14 to make sure that we all understand it. This is not
15 the kind of pain that eventually goes away, but does it
16 get worse?
17 A. It can.
18 Q. And if it gets worse, then -- as opposed to
19 saying, you know, lifting a heavy bag of groceries hurt
20 at the beginning of this injury, but now it's gotten
21 worse and now it hurts to shake hands. Have you seen
22 patients experience that kind of development?
23 A. Yes, I have.
24 Q. When you talk with your patients that have the
25 ulna impact syndrome and you talk about a potential
45
1 surgery fix, do you tell them to have the surgery right
2 away?
3 A. No, I don't.
4 Q. Okay. Do you tell the patients to -- to try
5 to put the surgery off as long as possible?
6 A. I do. We try the conservative stuff first:
7 physical therapy, activity modification --
8 Q. Why do you tell patients that?
9 A. Because sometimes bad things can happen with
10 surgery. And if you don't have to have surgery, if
11 there's an easier way to fix it, then I prefer to do it
12 that way.
13 Q. Did you tell Guillermo to try to put off his
14 surgery, his ulna shortening surgery, for as long as
15 possible?
16 A. Yes, I did.
17 Q. And while Guillermo was following your orders
18 and putting that surgery off, do you know whether or
19 not he was engaging in conservative medical care, like
20 physical therapy, injections, things like that?
21 A. Yes, he was.
22 Q. Is that something a reasonable patient would
23 do?
24 A. Yes.
25 Q. Is it your medical opinion that Guillermo
46
1 developed this ulna impact syndrome as a direct result
2 of the July 23rd, 2009 injury?
3 A. Yes.
4 Q. And is that opinion based on your education,
5 your experience, and your real life treatment of
6 Guillermo?
7 A. Yes, it is.
8 Q. And is that based on reasonable medical
9 probability?
10 A. Yes.
11 Q. Regarding the injury to Guillermo's
12 scapholunate ligament tear, do you have an opinion as
13 to whether that injury was caused by the dog attack on
14 July 23rd, 2009?
15 A. I believe it was.
16 Q. And that, again, Doctor, is based on your
17 skills, your training, your experience, and your
18 real-life treatment of Guillermo?
19 A. That's correct.
20 Q. And that, again, is based on reasonable
21 medical probability?
22 A. Yes, it is.
23 Q. I say real life treatment, Doctor, and I know
24 that you're confused by me using that term. But just
25 so the folks on the jury are clear, you've actually
47
1 seen Guillermo, examined his arm and his wrist, you've
2 actually done the surgery on him, and seen films on
3 him; is that right?
4 A. Yes, I have.
5 Q. Dr. Lown have you diagnosed a patient with a
6 medical condition without ever seeing that patient?
7 A. I don't believe that I have.
8 Q. And have you ever determined the cause of a
9 patient's condition or injury without ever having the
10 benefit of seeing or examining that patient?
11 A. I don't believe that I have.
12 Q. Do you know any doctors in town that would
13 give a patient a diagnosis without ever seeing or
14 examining the patient?
15 A. Well, there can be a review of medical
16 records, but other than that, no.
17 Q. When you're trying to actually help a patient,
18 do you agree that it's better to examine the patient
19 before making a diagnosis?
20 A. Yes, yes.
21 Q. Is that more reliable?
22 A. Yes.
23 Q. Thanks, Doctor. I want to turn our attention
24 now to what's Tab 4 in your binder. It's an excerpt
25 from Plaintiff's Exhibit 3 -- oh, I'm sorry,
48
1 Plaintiff's Exhibit 2. And have you seen this document
2 before?
3 A. Yes, I have.
4 Q. Can you tell us what it is?
5 A. It's an X-ray from July 24th, 2009.
6 Q. So what you're looking at is an X-ray of
7 Guillermo's right wrist from July 24th, 2009, the day
8 after the attack?
9 A. That's correct.
10 Q. And I want to show you this image, this wrist
11 X-ray image. Is that a fair and accurate depiction,
12 anatomically of what a right wrist looks like?
13 A. Yes, it is.
14 Q. We've talked about the schapholunate ligament
15 tear earlier. And although you can't see the
16 scapholunate ligament on X-rays, can you show us where
17 it would be on this picture?
18 A. Sure. So this is scaphoid bone and a lunate
19 bone. The ligament is right there.
20 Q. Okay. And what's the purpose of that
21 scapholunate ligament?
22 A. To let those bones move together.
23 Q. And the ligament holds the bones together, but
24 also, Doctor, does it allow those bones to move or
25 articulate in unison together?
49
1 A. Right. That's correct.
2 Q. As a hand and a wrist surgeon, can you look at
3 an X-ray of a wrist, and even though it doesn't show
4 ligaments and soft tissues, can you still look at an
5 X-ray and tell whether or not there's a history of a
6 large scapholunate ligament tear?
7 A. You can for a large -- or a large tear, there
8 would be a space between the ligaments -- I mean,
9 between the bones, if the ligament isn't doing its job,
10 holding the bones together. Also on a lateral view,
11 there's certain angles of the scaphoid and lunate that
12 you can get a pretty good idea of a significant
13 scapholunate ligament injury.
14 Q. So, in other words, just so we're all clear,
15 even though you can't see the scapholunate ligament on
16 the X-ray, but the two bones of that ligament holds
17 together are separated, that can give you an indication
18 that there's been a large tear of the scapholunate
19 ligament?
20 A. Yes.
21 Q. When the scapholunate ligament is not torn, it
22 holds the scaphoid bone and the lunate bone together,
23 right?
24 A. Yes.
25 Q. You mentioned that earlier? And a normal
50
1 range could be anywhere from one or five millimeters,
2 separation between those two?
3 A. I think it's four, one to four.
4 Q. Okay. And if the tear causes those two bones
5 to separate and move independently of each other,
6 Doctor, is that the condition that can cause traumatic
7 arthritis?
8 A. That's correct.
9 Q. And you've seen your patients with large
10 scapholunate ligament tears develop traumatic arthritis
11 over time?
12 A. Yes, I have.
13 Q. How long would it take, Doctor, in your
14 experience, from the moment that someone suffers a
15 large scapholunate ligament tear until you first would
16 see arthritic changes in an X-ray?
17 A. It can take years.
18 Q. Can it take months?
19 A. It could.
20 Q. Certainly if someone suffered a large
21 scapholunate ligament tear, would you expect to see
22 arthritic conditions on an X-ray taking somewhere
23 between two and three years later?
24 A. You would.
25 Q. In other words, by two or three years after a
51
1 large scapholunate ligament tear, you would expect to
2 see arthritic changes in the X-ray?
3 A. That's correct.
4 Q. Thank you, Doctor. You can sit down, unless
5 you like it up there. You're all settled in?
6 A. Set.
7 Q. All right. In your experience, Dr. Lown, does
8 every injury of the scapholunate ligament result in
9 this traumatic arthritis in the wrist?
10 A. No, it does not.
11 Q. Does a mild -- well, let me back up. Have you
12 treated patients that have had mild disruptions in the
13 scapholunate ligament?
14 A. Yes, I have.
15 Q. Does a mild disruption in the scapholunate
16 ligament normally cause the traumatic arthritis that
17 you see with Guillermo?
18 A. No.
19 Q. And have you treated -- and have you treated
20 patients, Dr. Lown, that have a mild widening of the
21 space between the scaphoid bone and the lunate bone due
22 to a mild disruption of the scapholunate ligament
23 before?
24 A. Yes.
25 Q. And not every single one of those patients
52
1 will ever have to have a wrist fusion surgery; is that
2 true?
3 A. That's correct.
4 Q. I want to take you back, Doctor, to the July
5 24th, 2009 X-ray of Guillermo's right wrist. I think
6 it's Tab 4 in your binder.
7 A. Okay.
8 Q. Are you there?
9 A. Yes.
10 Q. Okay. If Guillermo had suffered a large
11 scapholunate ligament tear in his right wrist two or
12 four years before July 23rd, 2009, would you expect to
13 see some arthritic changes in that X-ray that you're
14 looking at?
15 A. I would.
16 Q. And looking at that wrist X-ray report of July
17 24th, 2009, was there any indication of arthritic
18 changes due to a scapholunate ligament tear from back
19 in 2005?
20 A. No, there's not.
21 Q. Do you see arthritic changes noted in X-ray
22 reports like the one you're looking at now from July
23 24th, 2009, often?
24 A. There can be.
25 Q. Okay. In other words, if there is a
53
1 significant finding of a traumatic arthritic condition
2 in someone's right wrist, you would expect that to be
3 recorded on an X-ray?
4 A. Yes.
5 Q. From the lack of evidence of arthritic changes
6 in Guillermo's right wrist on the July 24th, 2009
7 X-ray, can you tell us whether or not, in your opinion,
8 Guillermo suffered a large scapholunate ligament tear
9 at any time prior to July 23rd, 2009?
10 A. I do not believe that he had.
11 Q. I'm showing you -- if you could flip to Tab 6
12 for us, Doctor. I'm showing you an excerpt from
13 records from Dr. Walters' office. When you get there,
14 let me know, please?
15 A. Okay.
16 Q. Okay. Have you seen this document before,
17 Doctor?
18 A. I have.
19 Q. Is this a CT scan taken of Guillermo's right
20 wrist from an accident he had back in 2005?
21 A. Yes, it is.
22 Q. And do you see where it says, quote, mild
23 widening of the scapholunate articulation measuring
24 about four millimeters?
25 A. I do.
54
1 Q. And what does that mean? Can you explain that
2 to us?
3 A. Well, it could mean a couple of things. It
4 could just be an anatomic variant, which means that
5 we're all born with a little bit different -- the way
6 our ligaments and bones are lined up, or it could mean
7 that he's had a minor injury to that ligament.
8 Q. Is that type of injury that you're looking at,
9 is that a condition you've seen many patients for?
10 A. Yes.
11 Q. And does a mild widening to the scapholunate
12 articulation a condition that requires surgical repair
13 of any type, or even a wrist fusion surgery?
14 A. Usually not.
15 Q. Is a mild widening of the scapholunate space
16 the type of injury that you would expect to result in
17 degenerative arthritic changes?
18 A. No.
19 Q. In referring you, again, to the circled area,
20 so we can follow along with you, a mild widening of the
21 scapholunate space measured at approximately four
22 millimeters -- I asked you a little bit about four
23 millimeters. That gap between the scaphoid bone and
24 the lunate bone, is a four-millimeter gap considered
25 normal?
55
1 A. Yes, it is.
2 Q. So even without looking at the actual film of
3 that CT scan back in 2005, you can look at the
4 measurements of that interval and tell us if that's
5 within normal limits?
6 A. That's correct.
7 Q. If it's a normal finding, Doctor, does that
8 exclude the possibility that Guillermo suffered a large
9 scapholunate ligament tear back in 2005 in November?
10 A. I believe it does.
11 Q. I want to show you an excerpt. This is Tab 7
12 for you, Doctor, out of the Austin Radiological
13 Association, reading from Dr. Walters' records.
14 A. Okay.
15 Q. Have you seen this document?
16 A. Yes, I have.
17 Q. And this is an MRI of the right wrist,
18 Guillermo's right wrist done in 2005?
19 A. That's correct.
20 Q. And back then it says, He broke a bone called
21 the hook of the hamate. Is that your understanding?
22 A. That's correct.
23 Q. Can you show us where the hook of the hamate
24 is?
25 A. Sure. Actually, the hook of the hamate is
56
1 right here basically.
2 Q. And, in your opinion, did that fracture of the
3 hook of the hamate cause any problems with Guillermo's
4 wrist that we're dealing with now?
5 A. No.
6 Q. And, then, also looking at this MRI from 2005,
7 do you see where it says, disruption of the
8 scapholunate ligament?
9 A. Yes, I do.
10 Q. And that's the same disruption that we just
11 talked about from the CT scan in November of 2005?
12 A. That's correct.
13 Q. And does everyone that ever has a disruption
14 of a scapholunate ligament require a four-corner wrist
15 fusion surgery?
16 A. No.
17 Q. Do you have an opinion as to whether the
18 disruption of the scapholunate ligament on that
19 December 2005 MRI has any bearing on a large
20 scapholunate ligament tear that you're treating
21 Guillermo for?
22 A. I don't believe it does.
23 Q. Dr. Lown, would you have recommended Guillermo
24 undergo a four-corner wrist fusion surgery if he simply
25 had a mild disruption of the scapholunate ligament in
57
1 his right wrist?
2 A. No, I would not.
3 Q. I want to take you back, Doctor, I believe
4 it's Tab 4 for you, to the July 24, 2009 X-ray. I just
5 want to clear up some things and maybe learn some
6 medicine from you?
7 A. Maybe.
8 Q. Looking at that July 24th, 2009 X-ray, do you
9 see where it says -- and I'll quote -- "There is a well
10 corticated ossicle adjacent to the ulnar styloid
11 process which could reflect accessory ossicle or old
12 avulsion injury." That was a lot to get out of my
13 mouth.
14 A. Uh-huh.
15 Q. Do you see where it says that?
16 A. I do see that?
17 Q. What does that mean?
18 A. It means that he either could have been born
19 with this -- it's a little bone -- lots of little bone
20 fragments. He was either born with it, or it could
21 have been from a previous injury, but it's not acute.
22 Q. I'm sorry?
23 A. It's not an acute injury. It's an old injury.
24 Q. Okay. And so if anyone gets up here and says,
25 Well, Guillermo had a well corticated ossicle, and so
58
1 you know he had problems with his wrist. Does that
2 make any sense?
3 A. No.
4 Q. Okay. So this well corticated ossicle has
5 nothing to do with the wrist problems that you're
6 treating Guillermo for?
7 A. That's correct.
8 Q. If there was an old avulsion injury in
9 Guillermo's right wrist, would that have any impact on
10 his condition or his treatment?
11 A. No.
12 Q. I want to refer you, Doctor, to Tab 8, an
13 excerpt from Carey Windler's records at Austin Sports
14 Medicine.
15 A. Okay.
16 Q. Have you seen this document before?
17 A. I have.
18 Q. Can you tell us when Guillermo first went to
19 see Dr. Carey Windler?
20 A. July 29th. I don't know if it is the first
21 visit.
22 Q. Okay. Does July 29th, 2009, sound right?
23 A. Yeah.
24 Q. So that was just about six days after the dog
25 incident on July 23rd?
59
1 A. Yes.
2 Q. And can you tell us, looking at that record,
3 did Dr. Windler initially treat Guillermo for the
4 fractured radius?
5 A. He did.
6 Q. In looking at those records, does it appear
7 that Dr. Windler was mostly focused on the radial neck
8 fracture?
9 A. He was.
10 Q. If I could have you flip over to Tab 9,
11 please. Looking at -- did you flip to Tab 9, Doctor?
12 A. I did.
13 Q. And that's showing you Dr. Windler's note from
14 October 21st, 2009; is that right?
15 A. That's correct.
16 Q. Have you seen this document before?
17 A. I have.
18 Q. Do you see where it's noted that Guillermo is
19 experiencing soreness in the region of the distal
20 radius and ulna?
21 A. I did.
22 Q. And does that mean that Guillermo's
23 experiencing pain in that distal radial ulna joint we
24 talked about earlier?
25 A. That's correct.
60
1 Q. That's the wrist joint, right?
2 A. That's correct.
3 Q. Is that a symptom you would expect for a
4 patient that's developing -- I'm sorry. Scratch that
5 question. I think I've already asked you that. Let me
6 refer you to Tab 10, Doctor. This is another excerpt
7 from Dr. Windler's notes from June -- from June 14th,
8 2010. Do you see that?
9 A. Yes.
10 Q. And can you tell us if Dr. Windler ever
11 diagnosed Guillermo with another injury in addition to
12 the radial neck fracture in his upper arm?
13 A. Yes, he did.
14 Q. And what was that injury?
15 A. It was a right wrist probable scapholunate
16 injury.
17 Q. And can you tell us if that diagnosis from
18 Dr. Windler was based on the July 24th, 2009 wrist
19 X-ray that was taken the day after the dog attack?
20 A. It was.
21 Q. Have you worked with Dr. Windler in the past?
22 A. I have.
23 Q. Do you think he's a good doctor?
24 A. Yes, I do.
25 Q. And you're familiar with the way that he
61
1 handles patients with injuries to their -- if they have
2 a fractured radius and if they have wrist injuries?
3 A. Somewhat.
4 Q. Do these chart notes, Dr. Lown, from
5 Dr. Windler's office support your opinion that
6 Guillermo suffered a significant scapholunate ligament
7 tear on the day of the dog attack?
8 A. They do.
9 Q. And just so we're clear, Dr. Lown, you're not
10 the only doctor that has diagnosed Guillermo with a
11 scapholunate ligament tear as a result of the July
12 23rd, 2009 incident, are you?
13 A. That's correct.
14 Q. Can you tell us if Dr. Windler recommended any
15 imaging studies of Guillermo's right wrist at that
16 time?
17 A. He recommended an MR arthrogram of the right
18 wrist.
19 Q. Is that a reasonable thing to do at that time?
20 A. Yes, it is.
21 Q. And do you know if that MR arthrogram was
22 performed?
23 A. It was.
24 Q. If you flip to Tab 11, you can see the result
25 of that arthrogram. What's the difference, Dr. Lown,
62
1 between an MRI and an MR arthrogram of the wrist?
2 A. An arthrogram, they inject dye into the wrist.
3 And if there is a ligament, a tear in the ligament, the
4 dye can get someplace that it shouldn't normally get.
5 You can diagnose the injury that way.
6 Q. And that dye is delivered through a needle
7 into the wrist joint?
8 A. That's correct.
9 Q. Quite a bit more invasive than your standard
10 MRI?
11 A. The needle.
12 Q. After the needle is inserted in the wrist
13 joint for the arthrogram, then is the patient sent into
14 an MRI tube or --
15 A. That's correct.
16 Q. Have you had patients in the past say that
17 that's a painful procedure?
18 A. I don't order it very often, so I couldn't
19 answer that. It could be.
20 Q. Okay. Is it a scary procedure? Is that why
21 you don't order it?
22 A. No. I guess it could be scary for somebody.
23 Q. Can you tell us, looking at that MR
24 arthrogram, what were the results of that study in June
25 2010?
63
1 A. So a large change -- arthritic -- arthritic
2 changes at the proximal pole of the scaphoid, with the
3 lunate. There's a large scapholunate ligament tear.
4 Q. And is that the scaphoid ligament tear that
5 we've discussed?
6 A. Yes.
7 Q. And the arthritic changes that's noted in that
8 MR arthrogram, are those the arthritic changes that
9 develop after a large scapholunate tear?
10 A. That's correct.
11 Q. And this arthrogram was done almost a year
12 after the dog attack; is that right?
13 A. That's correct.
14 Q. And the presence of arthritic conditions
15 reported in that MR arthrogram, did that mean anything
16 to you in terms of timing of a potential scapholunate
17 ligament tear?
18 A. Well, like we talked about, it takes time for
19 the arthritic changes to develop.
20 Q. Would that be a normal or abnormal timeframe
21 in June 2010 to start seeing arthritic changes from a
22 July 2009 scapholunate ligament tear?
23 A. It's about right.
24 Q. And you see that, not just in Guillermo's
25 case, but in other patients you treat?
64
1 A. That's correct.
2 Q. And were the arthritic changes noted on that
3 June 22nd, 2010 arthrogram, almost a year after the dog
4 incident, were there any -- were those arthritic
5 changes present back on July 24, 2009, on those X-rays?
6 A. They were not.
7 Q. When you look at the June 2010 arthrogram of
8 the right wrist, does that support your opinion that
9 Guillermo suffered a large scapholunate ligament tear
10 on July 23rd, 2009?
11 A. It does.
12 Q. I want to take you back quickly to Dr. Carey
13 Windler's records. You've seen these records, haven't
14 you, Doctor?
15 A. Yes, I have.
16 Q. And are you familiar with Dr. Walters, the
17 hand surgeon, that was here in Austin that just
18 recently passed?
19 A. I am.
20 Q. Do you know who Guillermo saw next after
21 Dr. Walters passed?
22 A. Dr. Vagner.
23 Q. That's right. Good memory. He went from
24 Dr. Windler to Dr. Walters, then to Dr. Vagner, then to
25 your office. Is that your understanding?
65
1 A. That's correct.
2 Q. Now, I'm showing you, finally, your medical
3 records, Doctor. Have you seen these before?
4 A. I have.
5 Q. All right. When did you first see Guillermo?
6 A. It looks like it was August 11th, 2011.
7 Q. And when you first saw Guillermo on that date,
8 had you reviewed the medical records from Dr. Windler,
9 Dr. Vagner, and Dr. Walters in conjunction with
10 Guillermo's injuries?
11 A. I did.
12 Q. And from August 2011, the first time you saw
13 Guillermo, through today, have you reviewed diagnostic
14 films of Guillermo's right wrist and arm?
15 A. I have.
16 Q. And from August 2011 through today, have you
17 physically examined Guillermo as your client?
18 A. I have.
19 Q. And during that time period, have you
20 physically examined Guillermo's right wrist and its
21 range of motion?
22 A. I have.
23 Q. And during that time period, have you
24 performed and interpreted X-rays of your own of
25 Guillermo's right wrist?
66
1 A. Yes, I have.
2 Q. And as we sit here today, Doctor, you're still
3 actively treating Guillermo; is that true?
4 A. That's correct.
5 Q. You are his hand doctor; is that right?
6 A. That's correct.
7 Q. Looking under X-ray wrist exam findings, in
8 your records, you note that Guillermo has scapholunate
9 arthritis. Do you see that?
10 A. Yes.
11 Q. I hate to belabor a point, but I want to make
12 sure that when we see scapholunate arthritis in any of
13 these records, does that indicate the traumatic
14 arthritis caused by this scapholunate ligament tear in
15 July of 2009?
16 A. Yes, it does.
17 Q. Under Plan in your records, Doctor, it says,
18 The radial fracture in his forearm has healed well, but
19 now he's ulnar positive and has scapholunate DJD. Do
20 you see that?
21 A. Yes, I do.
22 Q. What is scapholunate DJD?
23 A. Degenerative arthritis is DJD.
24 Q. Okay. And when you say that Guillermo's ulnar
25 positive, is that referring to the radius being shorter
67
1 than the ulna, like we discussed?
2 A. That's correct.
3 Q. And when you say -- well, let me back up. I'm
4 sorry. And as a result of that ulna impact syndrome,
5 is it your opinion that Guillermo needed the ulna
6 shortening surgical procedure?
7 A. That's correct.
8 Q. Is it medically necessary for Guillermo to
9 have undergone the ulnar shortening surgery?
10 A. Yes.
11 Q. And you performed that procedure in September
12 of just this year?
13 A. I did.
14 Q. I want to take you back to Tab 12 and show you
15 an excerpt from the Austin Sports Medicine records.
16 A. Okay.
17 Q. They're admitted as Exhibit 6 in this case.
18 Do you see where it says, Guillermo's experienced
19 intermittent pain in his right wrist particularly when
20 using the computer, doing push-ups, and pull-ups?
21 A. That's correct.
22 Q. Do many of your patients experience
23 intermittent pain when they've been diagnosed with a
24 large scapholunate ligament tear?
25 A. Yes.
68
1 Q. And in your experience, can that pain come and
2 go as the patient, say, uses a computer, exercises, or
3 ties a tie?
4 A. Yes.
5 Q. In your experience, is the scapholunate
6 ligament tear that we're talking about the kind of
7 injury that causes intermittent nagging pain through
8 all types of daily activities?
9 A. It can.
10 Q. And in your experience, does surgical repair
11 for that scapholunate ligament tear, is that something
12 that you tell your patients that they need to put off
13 as long as they can until they just can no longer bear
14 the pain?
15 A. Sometimes, yes.
16 Q. Depending on the patient?
17 A. Depending on the patient, depending on how
18 recent the injury was.
19 Q. Uh-huh. In Guillermo's case, did you tell him
20 to try to put off the surgery for as long as possible?
21 A. Yes.
22 Q. But certainly in your opinion, is Guillermo a
23 candidate for this wrist fusion surgery?
24 A. Yes.
25 Q. And do you have an opinion, Doctor, as to
69
1 whether or not Guillermo was a candidate for that wrist
2 fusion surgery from the second that he suffered this
3 injury on July 23rd, 2009?
4 A. At that point, he could have had a -- possibly
5 had a repair to that ligament.
6 Q. Okay. But one way or another --
7 A. He needed surgery.
8 Q. Yeah. Now, I want to show you an excerpt from
9 your records under Tab 14. Do you see that?
10 A. I do.
11 Q. Do you see where it says, Wrist fusion,
12 there's arthritis involved so the patient is cautioned
13 on the amount of exercise with weight and repetition.
14 Do you see that?
15 A. No.
16 Q. Is that not there? I'm sorry. I think I have
17 it up for you now, Doctor, to look at.
18 A. Okay. Yes, I see it now.
19 Q. Okay. And the date of -- that that note was
20 entered, can you tell us when that was? That was
21 February 6th, 2013?
22 A. That's correct.
23 Q. And you started seeing Guillermo back in
24 August of 2011?
25 A. That's correct.
70
1 Q. So when you first saw Guillermo in August
2 2011, was it your opinion that he was a candidate for
3 this wrist fusion surgery?
4 A. I don't believe so. Can you say that again?
5 Q. Yeah. Let me see if I can back you up here.
6 Let me make sure we get it right for you.
7 THE COURT: You know while you're doing
8 that, can we go ahead and take our morning break?
9 MR. CAGLE: Sure.
10 THE COURT: Okay. Let's go ahead. It's
11 10:25, and we are going to get started at 10:45. But
12 we are on a break now.
13 (Recess was taken.)
14 THE COURT: We'll pick up where we left
15 off.
16 MR. CAGLE: Thank you, Your Honor.
17 Q. (BY MR. CAGLE) Okay. Dr. Lown, we're back.
18 And before we move on to the last segment, I promise,
19 the last segment of your testimony, I want to clear up
20 a couple of things from the earlier testimony.
21 In your professional opinion, would
22 Guillermo need a wrist fusion surgery in his right
23 wrist had he never been involved in this July 23rd,
24 2009 incident?
25 A. No.
71
1 Q. And now I'm showing you an excerpt from your
2 medical records. And do you see where it says, Wrist
3 fusion. There's arthritis involved so the patient is
4 cautioned on the amount of exercise with weight and
5 repetition?
6 A. That's correct.
7 Q. And is that the traumatic arthritis that we've
8 discussed a bunch today?
9 A. Yes, it is.
10 Q. Is it your understanding that Guillermo leads
11 a very active life-style?
12 A. Yes, he does.
13 Q. Do you know whether or not Guillermo has
14 modified his weight routines in terms of repetition and
15 weight during the course of his treatment with you?
16 A. I believe that he has.
17 Q. And before this note cautioning Guillermo
18 about the amount of exercise he does in February of
19 2013, had you already recommended him to undergo the
20 wrist fusion surgery?
21 A. Say that again, please.
22 Q. Sure. So before this note was entered
23 regarding, Patient is cautioned on the amount of
24 exercise he does, before that was even created, had you
25 already recommended a wrist fusion surgery?
72
1 A. Yes.
2 Q. So whether or not Guillermo is exercising,
3 what someone may have thought, something he needed to
4 watch at that time, at that point he was going to have
5 the wrist fusion surgery regardless?
6 A. That's correct.
7 Q. Is there any medical evidence in this case
8 that you've seen that would suggest that Guillermo
9 needs a wrist fusion surgery because of his exercise
10 routine?
11 A. No.
12 Q. Keeping in the exercise realm, Doctor, I -- I
13 want to show you this note from February 13th of 2013.
14 Do you see this?
15 A. I do.
16 Q. It says that patient works out with kettle
17 bells, right?
18 A. Yes.
19 Q. And, again, Doctor, well before February 13th,
20 2013, is it your professional opinion that Guillermo is
21 going to need to have this wrist fusion surgery,
22 regardless of whether he was lifting kettle bells?
23 A. Yes.
24 Q. Going to back to the first day you saw him in
25 August 2011, isn't it true that he could have juggled
73
1 kettle bells, and he still would need a wrist fusion
2 surgery?
3 A. That's correct.
4 Q. You haven't seen any notes that says he
5 juggles kettle bells, have you?
6 A. I have not, to my knowledge.
7 Q. Doctor, is it reasonable to engage in
8 conservative medical care like physical therapy,
9 exercising, having injections to deal with the pain
10 before undergoing either the ulna shortening surgery or
11 the wrist fusion surgery?
12 A. Yes, it is.
13 Q. Is it reasonable to engage in that type of
14 conservative medical care even for a period of years
15 before finally electing to have the surgery?
16 A. Yes.
17 Q. And in your experience treating Guillermo, did
18 he engage in conservative medical care for a period of
19 years to deal with the pain of the injuries that we've
20 discussed today?
21 A. Yes, he did.
22 Q. Do you have an opinion today as to whether
23 Guillermo will, in fact, need a four-corner wrist
24 fusion surgery to definitively treat the wrist
25 arthritis caused by that large ligament tear?
74
1 A. I believe he will.
2 Q. As you sit here today, though, you have done
3 the ulnar shortening surgery?
4 A. Yes, I have.
5 Q. Can those -- can those surgeries not be done
6 together?
7 A. No. I think it's -- I think it's better to
8 separate them. They're two big surgeries.
9 Q. Okay. What makes them big surgeries?
10 A. The soft tissue dissection on the ulna, and
11 the same thing at the wrist, the soft tissue dissection
12 at the wrist.
13 Q. I want to move on to the ulna shortening
14 surgery that you performed in September of this year.
15 I'm showing you an excerpt from your records. It's the
16 operative report from that surgery. Have you seen that
17 document before?
18 A. I have.
19 Q. Before we get started into the actual
20 medicine, can you tell us whether or not there was a
21 dictation error in the operative report?
22 A. I believe there was.
23 Q. Was there some type of dictation that said
24 that Guillermo had been injured in a car accident in
25 2012?
75
1 A. Yes.
2 Q. Do you know if that's true or not?
3 A. I believe that's not true.
4 Q. And was that medical record -- record fixed to
5 reflect that error?
6 A. I dictated an addendum to the note.
7 Q. Doctor, and for some of us who don't dictate a
8 lot of -- of notes in our normal lives, are dictation
9 errors fairly common?
10 A. Yes, they are.
11 Q. And so when -- is it -- is it rare or often
12 that you see typos or small errors in an operative
13 report?
14 A. It's often.
15 Q. Okay. And in this situation, you saw that
16 there's an August 2012 car accident note. You knew
17 that that was incorrect?
18 A. That's correct.
19 Q. So talking about this ulna shortening surgery,
20 did you place Guillermo under general anesthesia?
21 A. Yes.
22 Q. Next it says that you made a longitudinal
23 incision along the ulna order -- of the ulna; is that
24 right?
25 A. That's correct.
76
1 Q. Can you show us where that incision is made?
2 A. It's right here.
3 Q. How long was that incision?
4 A. Did I say? It's probably 8 to
5 10 millimeters -- 8 to 10 centimeters. It's a long
6 incision.
7 Q. Then it says that you retract tissues out of
8 the field. What does that mean?
9 A. So you make an incision in the skin, and the
10 bone's not right there. You have to pull the muscles
11 and the nerves and blood vessels out of the way so that
12 they're not injured.
13 Q. Then it says you place a TriMed plate onto the
14 bone. I assume that means the ulna bone?
15 A. That's correct.
16 Q. What is a TriMed plate?
17 A. TriMed is the name of the company that makes
18 this ulnar shortening plate.
19 Q. And then you drill -- you begin drilling holes
20 through that plate. And can you kind of just take it
21 from there?
22 A. That's correct. So you place the plate on the
23 bone and then you have to shorten the bone. You
24 stabilize the plate to the bone with screws and with
25 some wires that hold them in place, and then you take
77
1 what's called a sagittal saw, which is something that
2 goes back and forth, and you take that away from the
3 bone to shorten it.
4 And in his case, I took two millimeters
5 to bring up the ulna back down to where the radius was.
6 Then once you get it lined up and you're happy with it
7 on the X-ray, you put screws in the plate to hold the
8 plate and the bone in place so it can heal.
9 Q. And did you do all those things with
10 Guillermo?
11 A. I did.
12 Q. In your experience, performing procedures like
13 that, what is the post-operative pain level for the
14 average patient?
15 A. It's different for every patient.
16 Q. Would you characterize this as a -- as a
17 painful recovery?
18 A. It's one of the more painful. Any time you
19 break a bone or cut a bone and drill into bone and put
20 screws in it, there's pain.
21 Q. And I think we have an X-ray photograph of
22 your handiwork there, Doctor. Is that a fair and
23 accurate depiction of the ulna bone after that ulnar
24 shortening procedure was performed?
25 A. It is.
78
1 Q. The dark shadows on the X-ray, would those
2 represent those plates?
3 A. That's correct.
4 Q. Then, obviously, the screws securing the
5 plates to the -- to his ulna bone?
6 A. That's correct.
7 Q. Was this surgery a success?
8 A. Yes.
9 Q. And by success, his ulna and his radius bone
10 are now evenly the same length?
11 A. They're better aligned, yes.
12 Q. And was Guillermo put in a cast after the
13 surgery?
14 A. He was.
15 Q. How long was he put in the cast, do you
16 recall?
17 A. I believe four weeks.
18 Q. Do you recall -- did you follow up with
19 Guillermo after the surgery?
20 A. Yes, I did.
21 Q. Do you recall if he was experiencing any pain?
22 A. Yes, he was.
23 Q. Do you know if Guillermo underwent any
24 physical therapy after the surgery?
25 A. He did.
79
1 Q. And -- and is it your understanding that
2 Guillermo's next in line to do a wrist fusion?
3 A. Yes.
4 Q. During the ulna shortening procedure, can you
5 deaden the nerves in the right arm, or is there a
6 reason during that procedure that you cannot?
7 A. You can. It's called a block, and the
8 anesthesiologist can do that either before or after the
9 case. It takes the pain away for the first, you know,
10 18 to 36 hours.
11 Q. And is that -- how is that anesthesia
12 delivered? Is it delivered --
13 A. It's a needle into the neck area.
14 Q. Okay. And do know if in this case that
15 anesthesia was delivered after the surgery was done?
16 A. I don't remember.
17 Q. Before the ulnar shortening surgery, can you
18 deaden the nerve?
19 A. Yes, you can.
20 Q. And you don't recall if you did for this case
21 with Guillermo or not?
22 A. I don't.
23 Q. Okay. I'm going to show you this excerpt from
24 your records. It's a wrist -- a wrist X-ray image.
25 Have you seen this document before?
80
1 A. Yes, I have.
2 Q. I want to talk to you about the wrist fusion
3 surgery that you recommended for Guillermo due to that
4 scapholunate ligament tear and the traumatic arthritis.
5 Can you kind of just walk us through? And if you want
6 to be professor again, that would be wonderful.
7 A. Sure.
8 Q. Thank you. If you could, Doctor, please just
9 show us what that wrist fusion procedure entails.
10 A. Sure. So this is the disruption between like
11 the scaphoid and lunate. So the procedure is to take
12 out the scaphoid. Then we fuse the lunate to the
13 capitate, to these other -- these other bones, so that
14 the wrist moves as one unit from here without this.
15 Q. Okay. And then how -- how are those bones
16 fused? Can you explain that to us?
17 A. I use -- there's several different ways to do
18 it, but you take off the cartilage. There's cartilage
19 between these bones. Take all of that out and you get
20 the bones so you get down to -- down to good bone and
21 then I usually put pins or stainless steel wires to
22 hold the bones together to pin them in the position I
23 want them in. And then the pins or wires come out
24 after the bones heal in about four to six weeks.
25 Q. So even after the surgery is performed, four
81
1 to six weeks later the patient has to come in and have
2 the pins removed?
3 A. That's correct.
4 Q. How long are the wrist bones fused to the
5 forearm bones? Is that --
6 A. They're not.
7 Q. Okay. So that's not the four corner --
8 A. Four corners, one, two, three, four. That's
9 what's fused.
10 Q. And how is that supposed to help with the
11 pain?
12 A. Because this bone is removed, and this is
13 what's kind of rubbing up on the radius and moving and
14 not moving in line with the lunate. The lunate -- just
15 the way we're built, it's a deeper -- this is the
16 radius. It's a deeper -- deeper cup on the radius, so
17 there's a very predictable pattern of -- of arthritis
18 that develops. It usually starts here at the radial
19 styloid, and it works its way around and can work its
20 way between the capitate and the lunate. But what's
21 always preserved or usually preserved is the space
22 between the -- the lunate and the radius, so that's a
23 good area to run the wrist off of.
24 Q. And that's what you plan on doing for
25 Guillermo?
82
1 A. Yes.
2 Q. I think you can sit down now for the final
3 time. After this wrist fusion surgery that you just
4 described to us is completed, will Guillermo ever have
5 normal range of motion in his right wrist?
6 A. No, he won't.
7 Q. Can Guillermo expect at least 50 percent
8 impairment in range of motion of that wrist?
9 A. Yes, he can.
10 Q. And just so the folks on the jury are clear,
11 even if the surgery goes 100 percent perfectly well,
12 Guillermo can still expect at least 50 percent
13 impairment in his range of motion?
14 A. That's correct. I usually tell patients
15 they're going to have about half of the motion that
16 they come in with. It's usually not that -- it can be
17 better than that, but that's what I tell people.
18 Q. And could it be worse than that?
19 A. It could be.
20 Q. You just won't know until you're done with the
21 surgery?
22 A. Right, right.
23 Q. I want to talk a little bit about the cost of
24 that procedure, that procedure has not been done yet.
25 The surgical fees show to be $4,571.49 for you. Does
83
1 that sound right?
2 A. Yes.
3 Q. And you're going to do this surgery at a
4 surgery center here in Austin?
5 A. That's correct.
6 Q. I'm showing the surgery center fees to be
7 $8,175. Does that seem correct to you?
8 A. Yes.
9 Q. And in your experience, will there be a
10 separate charge for the anesthesiologist?
11 A. Yes.
12 Q. Is a charge of $1,425 for an anesthesiologist
13 a reasonable and necessary charge?
14 A. Yes.
15 Q. Will there be a separate cost for the bone
16 chips that you use to achieve this fusion in the wrist?
17 A. For implants, yes. Anything I put in there
18 will be extra.
19 Q. And do those bone chips cost you about $520?
20 A. Yes.
21 Q. Will Guillermo be immobilized in a cast after
22 this surgery?
23 A. He will.
24 Q. And for how long will that be?
25 A. Six weeks.
84
1 Q. And Guillermo will need more physical therapy
2 after this wrist fusion surgery?
3 A. Yes, he will.
4 Q. So the total cost for this wrist fusion
5 surgery that we just went through totals about $14,690.
6 Does that seem right?
7 A. Yes, it does.
8 Q. Is that a reasonable charge for those
9 procedures in this community?
10 A. I believe so.
11 Q. And that's based on your experience in
12 providing these types of services?
13 A. That's correct.
14 Q. The surgery -- the wrist fusion surgery, is
15 that Guillermo's best medical treatment option now?
16 A. Yes.
17 Q. And are there any guarantees for that surgery?
18 A. No, there are not.
19 Q. Even if the fusion surgery in his wrist goes
20 100 percent perfectly, is it possible that Guillermo
21 may still experience pain?
22 A. Yes.
23 Q. And even if the fusion surgery goes perfectly,
24 we know with medical certainty he's going to be
25 impaired, right?
85
1 A. That's correct.
2 Q. Even if the surgery goes perfectly, is it
3 possible that the wrist fusion just won't take?
4 A. Yes.
5 Q. I mean, it's possible that the bones don't
6 fuse?
7 A. Bones don't heal, yes. That's correct.
8 Q. Would that require a revision surgery?
9 A. It would.
10 Q. With all the attendant costs that we just
11 discussed?
12 A. Yes.
13 Q. Have you had patients where a wrist fusion
14 surgery, the bones didn't fuse?
15 A. I have not had one.
16 Q. Well, that's good to hear? Do what?
17 A. I have not had one --
18 Q. Do what?
19 A. I have not had one myself, but it can happen.
20 Q. It's certainly a risk that you make a patient
21 aware of?
22 A. Yes.
23 Q. If a fusion of the wrist, if the bones don't
24 fuse the way you intend and a scaphoid bone has already
25 been removed, what kind of anatomy of the wrist would
86
1 that patient have? I mean, would he have problems?
2 A. Yes. I mean, with motion, there could be
3 pain. I mean, the idea of -- of the surgery is to
4 decrease his pain and leave him with as much motion as
5 possible, but it's not going to be a normal wrist.
6 Q. Even after the surgery, will he still expect
7 to have some pain in his right wrist?
8 A. He could. It's possible.
9 Q. Is it possible that he can lose strength in
10 his hand as a result of this surgery?
11 A. It's possible.
12 Q. Is it possible that Guillermo will have pain
13 engaging in every day activities for the rest of his
14 life even if the surgery goes well?
15 A. It's possible.
16 Q. Other than actually undergoing this wrist
17 fusion surgery, is there anything certain about
18 Guillermo's medical condition of his right wrist?
19 A. No.
20 Q. Have you expressed your opinions today in
21 terms of reasonable medical probability, Doctor?
22 A. I have.
23 Q. And I want to -- before I pass you, I want to
24 ask you one more question, kind of a housekeeping
25 matter. From August 11th, 2011, through the present,
87
1 the total amount paid to Austin Hand Group, your
2 medical practice, for Guillermo shows as $6,812.51.
3 Does that sound right?
4 A. Yes.
5 Q. And are those charges for the services you've
6 provided reasonable here in our community?
7 A. Yes, they are.
8 MR. CAGLE: Doctor, I thank you very much
9 for your time. I know this is the first time you've
10 ever done this. And so thank you, thank you, thank
11 you. We appreciate it very much. I'll pass the
12 witness.
13 MR. PAYNE: May I proceed, Your Honor?
14 THE COURT: Yes.
15 CROSS-EXAMINATION
16 BY MR. PAYNE:
17 Q. Dr. Lown, you and I met once before, correct?
18 A. That's correct.
19 Q. And that was at your deposition in this case,
20 correct?
21 A. That's correct.
22 Q. Now, you are being paid to appear here today,
23 correct?
24 A. Correct.
25 Q. You are being paid by plaintiff's counsel, are
88
1 you not?
2 A. Correct.
3 Q. What amount are you being paid to appear here
4 today?
5 A. $4,500.
6 Q. Okay. So $4,500 to appear and -- and give
7 testimony in the courtroom this morning, correct?
8 A. Yes.
9 Q. And you were previously paid by plaintiff's
10 counsel to give your oral deposition in this case,
11 correct?
12 A. I believe so, yes.
13 Q. And do you recall what that amount was?
14 A. No, I don't.
15 Q. And that lasted, I don't remember, two or
16 three hours. Would it be a similar fee to what you're
17 charging today?
18 A. I don't know.
19 Q. Okay.
20 A. I don't know.
21 Q. And, of course, you've met with counsel in
22 advance of this trial to prepare for trial?
23 A. That's correct.
24 Q. And when did you do that?
25 A. A week ago.
89
1 Q. And how long did you meet with them at that
2 time?
3 A. Thirty minutes.
4 Q. And y'all went through your records and -- and
5 your records and your testimony that you were going to
6 offer this morning, correct?
7 A. That's correct.
8 Q. And you had gone through a similar process
9 with counsel before your deposition, correct?
10 A. That's correct.
11 Q. And I, of course, have not -- not had that
12 opportunity to meet with you. I have simply met with
13 you twice while you're sworn under oath, true?
14 A. That's correct.
15 Q. And I have not agreed, nor have I paid you any
16 fees to appear at any time in connection with this case
17 or any case, correct?
18 A. No, you have not.
19 Q. And -- and just so we're clear, you'll recall
20 you were asked questions that -- and I'm paraphrasing.
21 But the idea was that it's -- it's better to lay hands
22 on a patient, to actually examine them to offer a more
23 thorough opinion?
24 A. That's correct.
25 Q. And that was kind of the nature of those
90
1 questions. And you agree you never met Mr. Cronfel
2 until August of 2011, correct?
3 A. That's correct.
4 Q. That's more than two years after the accident
5 that forms the basis of this lawsuit, correct?
6 A. That's correct.
7 Q. And it's another three-and-a-half years before
8 this event of 2005, correct?
9 A. Yes.
10 Q. And so whatever occurred right at the time of
11 November of 2005, you did not lay hands on Mr. Cronfel
12 and -- and examine him in any way, correct?
13 A. That's correct.
14 Q. You don't -- you didn't examine him, visit
15 with him, take a history from him, review his actual
16 films in connection with that 2005 event, correct?
17 A. That's correct.
18 Q. All right. And, likewise, within the two
19 years following the 2009 event, you did not lay hands
20 on Mr. Cronfel, examine him, review his films, for two
21 years later?
22 A. That's correct.
23 Q. Now -- but you agree we -- we talked about
24 this in your deposition. Mr. Cronfel did, in fact,
25 have a almost identical, certainly a very similar, bike
91
1 wreck in November of 2005. You understand that, true?
2 A. Yes.
3 Q. All right. And --
4 MR. PAYNE: Your Honor, may I approach
5 the --
6 THE COURT: Yes.
7 MR. PAYNE: -- the podium.
8 THE COURT: Yes.
9 MR. PAYNE: Sorry about that. I
10 apologize for the delay.
11 Q. (BY MR. PAYNE) All right. You understand
12 that Mr. Cronfel had this accident -- if I can get it
13 to come up, we'll bring it up -- where he went, fell
14 off bicycle. Tried to break fall with right hand.
15 Pain along pinky down to wrist. Limits use. You've --
16 you've reviewed that record. And if we can get it to
17 come up, we can review it together, correct?
18 A. That's correct.
19 Q. And you understand that Mr. Cronfel saw
20 Dr. Walters following that fall, correct?
21 A. That's correct.
22 Q. All right. And Dr. Walters, he was a
23 well-reputed hand surgeon in the local community before
24 his untimely death, correct?
25 A. Yes, he was.
92
1 Q. And you -- he was a respected surgeon?
2 A. Yes.
3 Q. All right. And you understood that
4 Dr. Walters, following this fall and the history that
5 Mr. Cronfel gave, had Mr. Cronfel undergo a CT scan of
6 his wrist, did he not?
7 A. That's correct.
8 Q. And that CT scan, which I finally have been
9 able to bring up on the screen -- well, let's just go
10 through it together and we can -- well, here we go,
11 maybe. All right. You talked about this a little bit
12 with Mr. Cagle. That CT scan in November, it was taken
13 November 16th of 2005, showed this widening, mild, but
14 albeit widening, at the scapholunate articulation,
15 correct?
16 A. That's correct.
17 Q. And that is the same widening that you had
18 discussed that eventually -- or you had offered the
19 opinion will lead to surgery in 2014-2015, correct?
20 A. That's correct.
21 Q. And Dr. Walters, or this -- this CT scan also
22 referenced a concern with a ligamentous -- is that how
23 you say that?
24 A. That's correct.
25 Q. Ligamentous injury, meaning an injury to the
93
1 ligament, but it doesn't show up -- that's the kind of
2 thing that doesn't show up on a CT scan, right?
3 A. That's correct.
4 Q. So he referred Mr. Cronfel for an MRI, true?
5 A. That's true.
6 Q. So Mr. Cronfel -- and, of course, you have not
7 had the benefit of the actual review of that CT scan of
8 November 16th, true?
9 A. That's true.
10 Q. You haven't seen the film?
11 A. I've seen the reports.
12 Q. Right. And, likewise, you haven't seen the
13 MRI that was taken on December the 20th. Here it is.
14 December 20th, the -- the MRI that Dr. Walters wanted
15 Mr. Cronfel to undergo, he did, in fact, have that MRI
16 of his right wrist, correct?
17 A. That's correct.
18 Q. And that MRI revealed this disruption, which
19 is another word for tear, correct?
20 A. That's correct.
21 Q. The MRI taken three-and-a-half years before
22 the fall in July '09 showed that Mr. Cronfel already
23 had a tear at this scapholunate ligament, true?
24 A. That's correct, yes.
25 Q. It doesn't say mild and it doesn't say the
94
1 location. It simply says disruption, correct?
2 A. That's correct.
3 Q. And, again, this particular tear is the topic
4 or the subject that's going to lead to this four-corner
5 fusion that you want to perform?
6 A. That's correct.
7 Q. All right. And this tear is evidenced as far
8 back as 2005, December of that year, correct?
9 A. Yes.
10 Q. All right. 2005 Mr. Cronfel already has a
11 tear in this part of his wrist, as evidenced by this
12 MRI, correct?
13 A. That's correct.
14 Q. And, of course, you have not had the benefit
15 of that MRI to understand the extent, the nature,
16 the -- the significance of that tear. We just simply
17 know that it was a tear, right?
18 A. That's correct.
19 Q. Okay. And now that I finally got this
20 working, just so that we're clear, the initial record
21 shows that Mr. Cronfel fell off bicycle. Tried to
22 break fall with right hand. Pain along pinky down to
23 the wrist. Limits use. Do you see that?
24 A. I do.
25 Q. And that's what led to the CT scan and the
95
1 MRI, which revealed the tear in his wrist, true?
2 A. True.
3 Q. And the tear that was evidenced in 2005 and
4 the tear that was evidenced following 2009, as we sit
5 here today in the end of 2014, five years after this
6 fall and nine years after the other fall, this tear
7 still has not been addressed by Mr. Cronfel, true, in a
8 surgical way?
9 A. In a surgical way; that's correct.
10 Q. And, of course, following the July 23rd, 2009
11 fall, Mr. Cronfel treats with Carey Windler, Dr. Carey
12 Windler, does he not?
13 A. That's correct.
14 Q. And within three months of treating with
15 Dr. Windler, Mr. Cronfel appears there on October 21st
16 of 2009, and it says he's got pain with activities of
17 lifting and push-ups. Do you see that?
18 A. I do.
19 Q. So within three months of the fall in Travis
20 Country that Mr. Cronfel had, he has resumed his
21 push-ups and weight lifting, true, with pain?
22 A. True.
23 Q. And at that time, within three months of this
24 accident, he has full motion of the wrist and no
25 tenderness over the distal radial or ulnar joint at
96
1 that time, true --
2 A. That's true.
3 Q. -- according to Dr. Windler's records?
4 A. But that's different from the scapholunate
5 ligament.
6 Q. Okay. But full range of motion, in any event,
7 and no tenderness in those areas?
8 A. Yes.
9 Q. True.
10 A. Yes.
11 Q. All right. And he appears a year later in
12 2010, now almost a year removed from this event in
13 Travis Country. And at that time, he's still having
14 pain, but he's reporting that he's still doing his
15 bench press, his pull-ups, and his push-ups, is he not?
16 A. He is.
17 Q. So, again, a year after this accident,
18 Mr. Cronfel is still engaging in his weight lifting
19 activities despite whatever's going on in his wrist,
20 true?
21 A. That's correct.
22 Q. And then the June -- he gets a -- an X-ray on
23 July 21st, 2010. And just so there's no question, at
24 that time, a year after this accident, there's no
25 change in the wrist X-ray compared to the prior wrist
97
1 X-ray, the date after this accident, true?
2 A. That's correct.
3 Q. So within a year of this accident, his wrist
4 is unchanged, true?
5 A. True.
6 Q. According to the X-ray. And then he begins to
7 treat with you on -- on August 11th of 2011 and
8 continues to treat with you through -- into -- well, to
9 this date. But, in particular, he treats with you on
10 February the 2nd of 2012, does he not?
11 A. He does.
12 Q. And at that time, again, he is very physically
13 active with a constant exercise regime, true?
14 A. That's true.
15 Q. And that's despite whatever is going on with
16 Mr. Cronfel's right wrist. And he sees your physical
17 therapist a couple of weeks later, does he not?
18 A. Well, that note that you just showed was from
19 my physical therapist.
20 Q. Okay. Well, this is also your physical
21 therapist as well. And at that time Mr. Cronfel, I
22 guess the -- it seems to me, my interpretation is the
23 therapist is getting onto him that he's not icing, but
24 he -- but he hurts after his exercise, this joint --
25 this joint pain hand hurts after exercise, and he's not
98
1 icing it.
2 A. That's correct.
3 Q. That's what's reflected in this record?
4 A. Uh-huh.
5 Q. And the therapist tells him he needs to
6 stretch, pre-strengthening at the gym, and he needs to
7 use ice post-exercise and he's not doing it.
8 A. That's correct.
9 Q. Is that what's reflected in this record? And
10 then he returns to either you or your physical
11 therapist in March of 2012, and, again, he's
12 complaining that during a workout he torqued his right
13 wrist forcing his shoulder into hyperextension, and I
14 don't know if ER means emergency room or not. But in
15 any event, he torqued his right wrist while lifting,
16 sometime immediately before Feb- -- pardon me, March
17 20th of 2012, true?
18 A. True.
19 Q. And, you know, with weight lifting, I mean,
20 that's certainly something that's foreseeable. You can
21 torque your wrist while lifting weights?
22 A. True.
23 Q. You can torque your wrist while lifting kettle
24 bells, in particular, true?
25 A. True.
99
1 Q. And that's what appears to have happened with
2 Mr. Cronfel in March two years ago, true, according to
3 this record, he torqued his right wrist?
4 A. Yes.
5 Q. And then he returns to your office, among
6 other times, but he returns on August the 14th of 2012.
7 And at that time, he reports an event where his brakes
8 locked up and he went over the handlebars, sometime
9 before that, correct?
10 A. Correct.
11 Q. And for that event, you performed surgery
12 within two weeks, did you not?
13 A. No.
14 Q. You -- you didn't perform surgery to the left
15 wrist within two weeks of that event?
16 A. Sorry. On the left side, yes, I did.
17 Q. Okay. And -- and doesn't that stand in
18 contrast to your testimony today that we let -- we ride
19 these things out and let them go and see if they're
20 going to lead to surgery?
21 A. No, it does not.
22 Q. Okay. And then he returns following that
23 event, that within two weeks of the surgery that you
24 performed -- well, pardon me. Wrong record. Within
25 two weeks, Mr. Cronfel wants to get in the lake with
100
1 his cast. Do you see that?
2 A. I do.
3 Q. And you recommended against it?
4 A. I did. I did.
5 Q. And then by November of that same year,
6 Mr. Cronfel was physically able to deer hunt and load
7 his supplies. He had some pain with weekend
8 activities, but recovered, true?
9 A. True.
10 Q. And then -- of course, Mr. Cagle has shown you
11 this record, he returns to you again, and you caution
12 him as to the amount of exercise -- with regard to
13 weight -- you were cautioned -- or Mr. Cronfel is
14 cautioned with respect to the amount of weight, amount
15 of exercise with regard to weight and repetition,
16 correct?
17 A. That's my therapist, yes.
18 Q. Yeah. Your therapist is concerned that he's
19 overdoing it with the weight -- both repetition and
20 amount of weight that he's lifting, true?
21 A. True.
22 Q. And then he returns again this past year in
23 2013, and he's injured himself again or is complaining
24 of pain again. Patient worked out with kettles and
25 aggravated his musculature, correct?
101
1 A. Yes.
2 Q. Now, a kettle bell, can -- can you -- well,
3 Your Honor, may we approach?
4 THE COURT: Yes.
5 (Bench conference off the record.)
6 Q. (BY MR. PAYNE) Doctor, just so we're clear,
7 in case there's any question what a kettle bell is,
8 this is a kettle bell, right?
9 A. It is.
10 Q. Have you ever worked out with kettle bells?
11 A. I have.
12 Q. You have? Okay. Well, you know some of
13 the -- the exercises that you do with a kettle. I
14 mean, it -- it puts some significant torque on the
15 wrist, does it not?
16 A. It can.
17 Q. Okay. And, of course, Mr. Cronfel is working
18 out with kettles two-and-a-half years post-accident, so
19 much so that he's aggravated his musculature, true?
20 A. True.
21 Q. Now, Mr. Cronfel, again, returns to your
22 office on March 5th of 2013, this past year, and he's
23 talking about his right hand still hurts, but the left
24 is better. Do you see that?
25 A. I do.
102
1 Q. And then he returns again two weeks later, and
2 he's still complaining of this right hand pain. But
3 here's what is interesting here: On your medical
4 record, on March 29th, 2013, it contains a reference to
5 HPI. And what does HPI stand for on your medical
6 records?
7 A. History of present illness.
8 Q. All right. And so this was with respect to
9 Mr. Cronfel's right wrist. His history of present
10 illness is what?
11 A. I'm sorry?
12 Q. What's his history of present illness?
13 A. Bicycle riding August 5th, 2012.
14 Q. Okay. And just so we're clear, according to
15 your medical record from your office, Mr. Cronfel is
16 complaining of right wrist pain, and the history
17 provided for his right wrist pain last year, was a
18 bicycle accident on August the 5th of -- bicycle riding
19 on August the 5th of 2012, true?
20 A. That's what it says.
21 Q. And then he returns again on August -- pardon
22 me, May 28th, and he had an event at the Westlake -- or
23 it took him to the Westlake Hospital. He comes to your
24 office, and he's talking about, he woke up on May 25th
25 with swelling and pain in his right wrist. And, again,
103
1 what is the history of his present illness?
2 A. August 5th, 2012.
3 Q. All right. So, again, Mr. Cronfel woke up
4 and, in fact -- let me just show you the record. He
5 goes to Westlake Hospital emergency room complaining of
6 right wrist pain, and it's talking about, had soft
7 tissue mobilization. I can't make out a lot of this.
8 But having painful swelling at right wrist, which -- so
9 painful that it took him to the ER at Westlake,
10 correct?
11 A. Correct.
12 Q. And he follows up with your office again the
13 next day, after having to go to the emergency room and
14 the history of present illness. What took him to the
15 emergency room was whatever happened bicycle riding on
16 August 5th of 2012, true?
17 A. That's what the record says.
18 Q. And that's what three other records before
19 that say, do they not?
20 A. They do.
21 Q. As do subsequent records where he's, again,
22 complaining of right wrist pain, and your therapist
23 reports, Patient doesn't wear his splint very often
24 because it gets in the way. Do you see that?
25 A. I do.
104
1 Q. And so he's there treating, still for his
2 right wrist with a history of present illness of August
3 the 5th of 2012, true?
4 A. True.
5 Q. And not to beat a dead horse, but this occurs
6 again on -- on December 31st, he's at your office
7 complaining, same history. He's there again in March
8 of this year, same history. He's there in July of this
9 year, same history. He's there in August, same
10 history. And then you perform the surgery to the right
11 wrist, this one you've described to this jury. And
12 what does the narrative say? This is -- this is a
13 couple of months ago, September 11th, 2014. At that
14 time, this is the -- this is the history that you give
15 in the narrative, correct?
16 A. Correct.
17 Q. What does it say? This is a 56-year-old male
18 who is riding his bike and was hit by a car on August
19 the 5th of 2012 and sustained a radial head fracture
20 with some slight shortening after this heal. The --
21 the report that you submitted, or the narrative report
22 that you created in connection with your surgery done a
23 couple of months ago, references a whole new third
24 accident involving a car in 2012, does it not?
25 A. That was a mistake on my part.
105
1 Q. And so your records cannot be relied upon?
2 A. Well, just to explain what happens with my
3 records in my office is, Mr. Ochoa had a surgery on his
4 left wrist. And when we do that, our electronic
5 medical records, we start a whole new thing with the
6 history and all that stuff. So after that surgery was
7 kind of healed up, then he came back again.
8 Whoever my medical assistant or whoever
9 was in the room, did not pull the stuff from the
10 original note and just started kind of fresh where we
11 were at the time. So that's why the date from 2009 was
12 not in there.
13 Q. Well, but what we do know is that -- I lost
14 count, but roughly 10 to 12 of your records from your
15 office references something occurring with
16 Mr. Cronfel's right wrist in August of 2012 --
17 A. Uh-huh.
18 Q. -- true?
19 A. I believe it was an exacerbation of his
20 injury.
21 Q. Okay. So you think he actually -- he went
22 over the handlebars again in 2012, and he exacerbated
23 himself again?
24 A. It was his left wrist.
25 Q. Okay. That is -- granted this is a -- I mean,
106
1 I get what you're saying about the HPI, but this is a
2 pretty specific narrative that you provided in Arise,
3 is it not, Hit by a car on August 5th. That's not in
4 any part of the medical records?
5 A. Well, it's obviously wrong. It's incorrect.
6 Q. All right. But you concede it's pretty
7 specific?
8 A. It is.
9 Q. Okay. All right. Now, as to the chronology,
10 you agree Mr. Cronfel did not -- in fact, I think I can
11 sit down for this.
12 Mr. Cronfel did not -- was not seen by
13 paramedics at the scene of this July event, correct?
14 A. I don't recall.
15 Q. You don't know?
16 A. I don't recall.
17 Q. Okay. I'll -- I'll represent to you he was
18 not seen by paramedics at the scene. He didn't -- do
19 you understand whether he went to the emergency room?
20 A. I don't.
21 Q. The first doctor he went to was his general
22 practitioner, right?
23 A. Yeah.
24 Q. Dr. Keinarth?
25 A. Yeah.
107
1 Q. And then he saw Dr. Windler, who saw him twice
2 in August, once in September, and once in October of
3 '09. You're familiar with those records, correct?
4 A. Correct.
5 Q. And we already talked about the October '09.
6 At the end of October, he's got full range of motion in
7 his wrist, true?
8 A. Correct.
9 Q. And -- and, essentially, at that time he had a
10 normal exam, did he not?
11 A. I believe so.
12 Q. Yeah. So -- just so we're clear, on August
13 21st of 2009, Dr. -- according to Dr. Windler's
14 records, Mr. Cronfel's wrist exam was normal.
15 A. I believe so.
16 Q. And it was not -- as -- as best I recall, he
17 was not treated again for the right wrist until June of
18 2010, some eight months later, where he had an
19 injection in his wrist, correct?
20 A. Okay.
21 Q. Do you have any reason to disagree with that?
22 A. No.
23 Q. And -- and I'm really just taking this from
24 your deposition.
25 A. Yes.
108
1 Q. Okay. So there's was an eight-month -- he had
2 this normal wrist exam, and then no treatment for eight
3 months, and then Dr. Vagner does an injection at the
4 wrist some eight months later, true?
5 A. True.
6 Q. Do you disagree with that?
7 A. No.
8 Q. And then no more wrist treatment for another
9 nine months until March of 2011. Do you agree with
10 that?
11 A. Yes.
12 Q. And then another five months passed with no
13 treatment until you see him in August of 2011, fair
14 enough?
15 A. Yes.
16 Q. Now --
17 MR. PAYNE: May we approach again?
18 THE COURT: Yes.
19 (Bench conference off the record.)
20 Q. (BY MR. PAYNE) Maybe this has been beaten to
21 death, but -- but you agree -- certainly your own
22 physical therapist records, all of Mr. Cronfel's other
23 records, reflect that he has an extremely active
24 life-style?
25 A. That's correct.
109
1 Q. And that's been true at all times following
2 this July 2009 event, correct, or it's been that way
3 for five years?
4 A. Sure.
5 Q. And someone who remains so active and copes
6 with any pain associated with such an -- such activity,
7 is not someone you would recommend performing a wrist
8 fusion for, correct?
9 A. I usually tell people that -- you know, in
10 this case -- in this -- cases are different. You know,
11 whether this is an acute injury or whether it's a
12 chronic injury, you know, his -- his left wrist was an
13 acute injury, we treated it one way. And his right
14 wrist was a chronic injury, we treated it a different
15 way.
16 Where it gets to the point where the
17 ligament is torn and he's probably going to develop
18 arthritis in that wrist, and just kind of tell him to
19 go ahead and use it until it hurts you and until you're
20 sick of the pain. Because if it's not bothering you, I
21 can't make that any better with surgery. So go ahead
22 and use it, do whatever you want to do. And then when
23 you're sick of it, come back, and we'll fix it.
24 Q. At least what you told me before under oath
25 was that you don't recommend fusion surgery to people
110
1 who are so active?
2 A. I mean, you're taking a snippet out of -- out
3 of a bigger, probably, sentence. I don't mean that
4 that's a hard and fast rule.
5 MR. PAYNE: May I approach the witness?
6 THE COURT: Uh-huh.
7 Q. (BY MR. PAYNE) Reading from Page 82, starting
8 on Line 2, Dr. Lown, I asked you under oath, and
9 it's -- so if someone continues to be active and only
10 complains of intermittent pain, is that someone you
11 would recommend doing a wrist fusion on? And how do
12 you respond?
13 A. Intermittent pain I would not recommend a
14 fusion for.
15 Q. Okay. And you agree there's no urgency to
16 perform such a fusion?
17 A. Agree.
18 Q. Now, we don't know -- again, we don't know the
19 extent that Mr. Cronfel's scapholunate ligament was
20 torn in 2005. We just know a report that -- that it
21 was, in fact, torn to some degree, right?
22 A. Correct.
23 Q. And that necessarily means that the tear had
24 to heal at some point or the disruption healed at some
25 point, right?
111
1 A. That's correct.
2 Q. And now --
3 A. Well, it wasn't significant enough to cause
4 arthritis.
5 Q. That's not my question, though. It -- it
6 healed at some point. And healing leads to scar
7 tissue, right?
8 A. It can.
9 Q. And scar tissue weakens the ligament, right?
10 A. It can.
11 Q. Okay. And I'm thinking in terms --
12 everything's got to be a football analogy, but I -- I
13 was thinking about Robert Griffin, Jr. He -- he tears
14 his -- he tears his ligament in his leg, it repairs,
15 and then it pops like that because it's weak now,
16 right?
17 A. Uh-huh.
18 Q. Is that -- is that a yes?
19 A. Yes.
20 Q. Okay. And so you could foresee a same
21 scenario with respect to a ligament in the wrist.
22 You -- you tear it once, you're going to tear it again?
23 A. Possible.
24 Q. All right. And, of course, minor point, but
25 you've offered an estimate that the surgery center for
112
1 the second surgery is going to be $8,000, correct,
2 roughly?
3 A. Okay.
4 Q. But would it surprise you that the -- the
5 surgery center for the past procedure was less than
6 $3,000?
7 A. I don't know. I don't know the numbers.
8 Whatever my office manager gave you is probably the
9 best estimate.
10 Q. So you don't really know what the surgery
11 center charges?
12 A. The -- the surgery center is separate from me.
13 Q. Okay. Well, you've offered an opinion under
14 oath to this jury as to what the reasonable estimate is
15 of the -- of the surgery center fee. But what I'm
16 hearing you say is, you don't really know what they
17 charge?
18 A. My office manager pulled those numbers
19 together for you. I --
20 Q. Okay. So would it be a fair statement, that
21 doesn't really fall under your personal knowledge and
22 personal expertise?
23 A. That's correct.
24 Q. Okay. You simply asked your office manager to
25 come up with an estimate. She gave you a number, and
113
1 that's what you testified to the jury?
2 A. That's correct.
3 Q. Okay. And so that -- so we would have to talk
4 to your office manager or really to the surgery center?
5 A. You should probably talk to the surgery center
6 and see what they charge.
7 Q. Okay. So does that mean that the jury really
8 can't rely on the $8,000 figure because we haven't
9 talked to the surgery center?
10 A. I don't think so. I think that I just don't
11 know that number off the top of my head.
12 Q. Okay. So as far as your testimony goes, you
13 can't personally offer testimony to this jury as to
14 what the surgery center's going to charge Mr. Cronfel
15 for some surgery that may occur in the future?
16 A. Well, I can tell you that I didn't -- I wasn't
17 over my office manager's back while she was, you know,
18 doing the calculations, but she does this all the time.
19 MR. PAYNE: Dr. Lown, thank you for your
20 time. I pass the witness.
21 MR. CAGLE: Your Honor, may I approach?
22 THE COURT: Yes.
23 REDIRECT EXAMINATION
24 BY MR. CAGLE:
25 Q. Doctor, hi. I -- you just answered a lot of
114
1 questions about stuff that happened in August of 2012
2 and all throughout the year 2012. Do you recall that
3 line of questioning?
4 A. Yes, I do.
5 Q. Well, I want to look through your notes. In
6 looking at the very first page of your records when
7 you -- when you very first saw Mr. Cronfel on August
8 11th, 2011 -- I mean, I went to A&M, but that's a whole
9 year before August 2012, right?
10 A. That's correct.
11 Q. And can you tell me, under Plan, from August
12 11th, 2011, did you have an opinion at that time after
13 putting your hands on Mr. Cronfel and examining his
14 medical records, his chart notes, and doing your
15 physical examination, what medical procedures on August
16 11th, 2011, did you think were appropriate for
17 Mr. Cronfel?
18 A. We discussed the ulnar shortening and the
19 four-corner fusion.
20 Q. So wait -- so -- oh, so you did discuss the
21 four-corner wrist fusion in August 2011?
22 A. Yes, we did.
23 Q. And that was well before any of these notes
24 that you just got all these questions about in August
25 2012?
115
1 A. That's correct.
2 Q. Do you have an opinion, Doctor, as to whether
3 or not Guillermo was a surgical candidate for the wrist
4 fusion surgery in August 2011, regardless what happened
5 after that?
6 A. Yes. At that time he was.
7 Q. And I mentioned earlier today that, you know,
8 Mr. Cronfel could have been a participant in the
9 world's strongest man competition even, but it wouldn't
10 have mattered if it was after August 2011, would it, to
11 you?
12 A. The damage was already done.
13 Q. And the damage was already done, and the
14 surgery was already going to have to be had. Is that
15 true?
16 A. Yes.
17 Q. When we talk about the estimate for the
18 surgery center, is that Arise Surgery Center?
19 A. I believe so.
20 Q. And that's the one that's right there by your
21 office?
22 A. That's correct.
23 Q. When you talk about what the estimates of
24 those billings are, you get them from your staff that
25 routinely engages in that type of business, right?
116
1 A. That's correct.
2 Q. But isn't it true that when you get that
3 estimate, that you rely on your experience in
4 scheduling those procedures and getting paid, you know,
5 for performing those procedures and how much the
6 surgery costs? You're familiar with those procedures,
7 aren't you?
8 A. I'm familiar with my part, my portion of it --
9 Q. Right.
10 A. -- the surgeon fee.
11 Q. But even with the surgery center, you're
12 familiar with their pricing schedule. You may not know
13 it like the back of your hand. You can answer
14 questions intelligently about it for patients, can't
15 you?
16 A. Usually, yes.
17 Q. And that's just part of your life as being a
18 hand surgeon that uses that facility, right?
19 A. Right.
20 Q. In terms of the other costs that we've asked
21 you for, just to give us an estimate for what this
22 wrist fusion will cost into the future. You said it
23 was just over $14,000. Are you very comfortable with
24 the reliability of that figure for how much that wrist
25 fusion will cost?
117
1 A. I am.
2 Q. Is that a number that the jury can rely on and
3 say, Dr. Lown really believes that 14,000 -- so the
4 folks on the jury can say to themselves, when Dr. Lown
5 says that $14,690 is about right for everyone, the
6 anesthesiologist, the surgery center, the surgeon to
7 come in and do the surgery, that's a reliable number
8 for them?
9 A. I believe so.
10 Q. And that's based on your experience in dealing
11 with these numbers?
12 A. It's based on my knowledge of my office staff
13 and them preparing the information.
14 Q. Great. On -- on August 5th, 2012, did
15 Mr. Cronfel injure his left wrist?
16 A. Yes.
17 Q. Okay. And there was no confusion -- there's a
18 lot of talk about that date, that date, that date.
19 Does that date correspond to his left wrist injury?
20 A. That's correct.
21 Q. I just want to make clear. And after
22 answering Mr. Payne's questions, have your opinions
23 changed at all as Mr. Cronfel's treating physician
24 that, other than this July 23rd, 2009 injury, would
25 Mr. Cronfel need this ulnar shortening surgery or would
118
1 he need the wrist fusion?
2 A. No, he would not.
3 Q. And that's based on your skills, experience,
4 training, and reasonable medical probability?
5 A. That's correct.
6 MR. CAGLE: Thank you very much,
7 Dr. Lown. I'll pass the witness.
8 THE COURT: Anything further?
9 MR. PAYNE: Briefly.
10 RECROSS-EXAMINATION
11 BY MR. PAYNE
12 Q. Dr. Lown, in your deposition you gave an
13 estimate for the surgery that you did in September,
14 right? Do you remember doing so?
15 A. I don't remember specifically.
16 Q. Well, I'll represent to you that you did. And
17 I'll represent to you further that it was wrong and it
18 was high. Does that surprise you?
19 A. Yes.
20 Q. Okay. Well, likewise, you've now offered an
21 estimate as to this --
22 MR. MORIN: Your Honor, can we approach?
23 THE COURT: Yes.
24 (Bench conference off the record.)
25 Q. (BY MR. PAYNE) Dr. Lown, you're relying on
119
1 what your office staff tells you to some degree about
2 these estimates?
3 A. That's correct.
4 Q. And not your personal expertise?
5 A. True.
6 MR. PAYNE: Nothing further. Thank you,
7 Dr. Lown.
8 THE COURT: Anything?
9 MR. CAGLE: Nothing further.
10 THE COURT: Okay. Thank you, Dr. Lown.
11 You may step down, and you're excused as a witness.
12 It's a natural breaking point. Even though we're a
13 little earlier than noon, I'm going to go ahead and
14 we'll take our lunch break.
15 What that means is, when we come back at
16 1:15, we'll have a little bit longer of an afternoon,
17 so just make sure you come back well fed and ready to
18 go until five o'clock. But at this time, it's 11:45.
19 I'll see you all at 1:15.
20 (Lunch recess was taken.)
21 THE COURT: Plaintiff, you may call your
22 next witness.
23 MR. CAGLE: Thank you, Your Honor. We
24 call the plaintiff, Guillermo Ochoa-Cronfel.
25 THE COURT: Mr. Ochoa-Cronfel, please
199
1 PATRICK MURRAY,
2 having been first duly sworn, testified as follows:
3 DIRECT EXAMINATION
4 BY MR. MORIN:
5 Q. Would you please state your full name for the
6 record?
7 A. Patrick Charles Murray.
8 Q. Mr. Murray, my name is Paul Morin, and I'm
9 assisting Mr. Cagle in representing Mr. Cronfel. We've
10 never met before; is that correct?
11 A. That's correct.
12 Q. You've met Mr. Cagle when he took your
13 deposition; is that correct?
14 A. That's correct.
15 Q. And you remember taking your deposition?
16 A. Yes.
17 Q. And you recall -- have you read that recently?
18 A. Yes, on Sunday.
19 Q. Okay. And you live here in Austin?
20 A. Yes. I live at 4600 Canyonwood Drive.
21 Q. That's the same residence you lived back in
22 July 23rd of 2009?
23 A. That's correct.
24 Q. All right. And you're employed here in
25 Austin?
200
1 A. Yes.
2 Q. And what type of work do you do?
3 A. I'm in insurance.
4 Q. Okay. Now, you obtained your dog from the
5 rescue center; is that correct?
6 A. From the GSP Rescue, yes, sir.
7 Q. Okay. And what type of dog is he?
8 A. A German short-hair pointer.
9 Q. Okay. How much does he weigh?
10 A. Approximately 55 pounds.
11 Q. Did he weigh approximately 55 pounds back in
12 July 23rd, 2009?
13 A. Yes, sir.
14 Q. And how high does he stand?
15 A. Two feet I guess at the shoulders.
16 Q. All right. So you didn't raise the dog from a
17 baby?
18 A. That's correct.
19 Q. And you got him when he was about three years
20 old?
21 A. That's what we believe, yes.
22 Q. All right. And -- so he was full grown when
23 you got him?
24 A. Yes.
25 Q. All right. And so you didn't know his
201
1 background or history; is that right?
2 A. No. Just that he came from a -- like I said,
3 a hunting-type lodge or camp. He was a failed hunting
4 dog.
5 Q. A failed?
6 A. Failed. Apparently, he was afraid of noises
7 or he didn't retrieve. I -- I don't know. He was a
8 failed hunting dog. They were going to put him down,
9 so we rescued him.
10 Q. Okay. Did he already have his name Magnum
11 or --
12 A. Yes.
13 Q. -- you named him?
14 A. That was the name that he already had.
15 Q. That was the name that he was given?
16 A. Yes, sir.
17 Q. Okay. So he was kind of a wild dog when you
18 got him?
19 A. I don't believe so, no.
20 Q. Well, aren't you telling us that he was
21 untrainable as a bird dog so...
22 A. He was apparently afraid of noises.
23 Q. Okay.
24 A. I don't know -- he was not a wild dog. He was
25 a pretty well trained dog when we got him and we did
202
1 additional training.
2 Q. Okay. So -- but afterwards, he needed
3 additional training to keep him under control?
4 A. No.
5 Q. No?
6 A. To build a trust between the owner and the
7 pet.
8 Q. So you went with him or you sent him off to be
9 trained?
10 A. No. This fellow would come to our house.
11 Q. Okay. Now, did you understand why he was
12 named Magnum? I mean, is that because he's fast?
13 A. I have no idea, other than maybe Magnum
14 shotgun shell. That's all I can think of. I have no
15 idea.
16 Q. Magnum is named after like a bullet, like 44
17 Magnum that Clint Eastwood uses in the Dirty Harry
18 movies?
19 A. I have no idea.
20 Q. Okay. On the evening of July 23rd, 2009,
21 you -- you took Magnum out for a walk in your
22 neighborhood; is that right?
23 A. That's correct.
24 Q. And you had walked, what, approximately a mile
25 from -- from your house to the location where this
203
1 incident occurred?
2 A. That's correct.
3 Q. All right. Now -- now, we have a photograph
4 that I believe you've seen before of -- it's
5 Plaintiff's Exhibit No. 1. Do you see that photograph?
6 A. Yes, sir.
7 Q. And you saw that photograph and we talked
8 about that -- or you talked about that with Mr. Cagle
9 at your deposition; is that right?
10 A. Yes, sir.
11 Q. Were you -- I notice there's only a sidewalk
12 on the right-hand side of the street --
13 A. That's correct.
14 Q. -- right? You were walking your dog down that
15 sidewalk; is that right?
16 A. I would be coming toward the vehicle, toward
17 the camera view.
18 Q. Okay. So you're coming against that car on
19 the sidewalk?
20 A. Correct.
21 Q. All right. And -- now, you say that you had
22 the dog on a leash; is that right?
23 A. That's correct.
24 Q. And you say that you were -- this is a rock
25 right here; is that right?
204
1 A. That gray object is a big, big rock, yes, sir.
2 Q. Okay. And then off to the right here, I can't
3 tell what that is. Can you -- do you recall what that
4 is there, in those people's yard?
5 A. When you say to the right, I mean, I see like
6 a -- a sprinkler. It holds a hose, one of those
7 hose -- if that's what you're --
8 Q. Oh, it looks like a chair and a -- and a
9 sprinkler hose holder. Is that what it is?
10 A. Yeah.
11 Q. Okay. And a chair, right?
12 A. Correct.
13 Q. And you don't know these people, correct?
14 A. I do not, no, sir.
15 Q. All right. So you told us that you were on
16 the other side of this big rock, right?
17 A. That's correct.
18 Q. That your dog had done its business?
19 A. That's correct.
20 Q. And that you were attempting to pick up the
21 waste; is that right?
22 A. Yes, sir.
23 Q. And what do you -- how do you think from the
24 other side of that rock where you were standing picking
25 up the waste, how far is it over here all the way over
205
1 to the sidewalk?
2 A. I'd say 20 feet maybe.
3 Q. I'd say -- how big is that rock, about a
4 10-foot rock there, isn't it?
5 A. No. It's not that big, no.
6 Q. From end to end?
7 A. I would say it's about five to six feet.
8 Q. Okay. So what do you think, 15, 20 feet
9 between where you're standing and the side -- the edge
10 of the sidewalk?
11 A. Well, I wasn't standing, but, yes, sir, from
12 where I was located.
13 Q. What was that?
14 A. From where I was located, yes.
15 Q. Yes. Where you were standing on the other
16 side of the rock?
17 A. I wasn't standing.
18 Q. You weren't standing?
19 A. No.
20 Q. What were you doing?
21 A. I was kneeling down to pick up his waste.
22 Q. Okay. Now, if you're -- how far do you say
23 you are from the front door of these people's home?
24 A. Maybe 30 feet. I don't know. I've never
25 measured it.
206
1 Q. All right. So, Mr. Murray, are you saying you
2 walked your dog coming up this sidewalk, correct?
3 A. Yes.
4 Q. You walked your dog. You have him on a leash,
5 and you literally pass by 10 -- 10 trees to walk in
6 these neighbors' yard, that you don't know, so that
7 your dog can do its business?
8 A. That's kind of how dogs work, yes, sir.
9 Q. That's kind of how dogs work?
10 A. They go where they feel comfortable.
11 Q. And are you kind the person that goes around
12 and let your dogs defecate in somebody else's yard?
13 A. That's why I was picking it up, yes, sir.
14 Q. I mean, if the dog's got to do its business,
15 you really -- and you're controlling him with a leash,
16 you really only got to walk a couple of feet for him
17 to -- to take care of business, don't you?
18 A. Apparently, he wasn't comfortable doing his
19 business that close to the sidewalk. I'm -- I'm sorry.
20 Q. Well, is it more likely he was off the leash
21 way over in that person's yard up close to the front
22 door doing his business?
23 A. No, sir.
24 Q. You walked him right over there.
25 A. I didn't walk him. I -- he led me --
207
1 Q. Did he pull you?
2 A. He did not pull me. They -- they sniff. And
3 when they find a place that they're comfortable with,
4 that's where they go.
5 Q. Well, I've got a dog, and my dog walks me.
6 It's smaller than your dog, but he literally -- he
7 pulls me on the leash. Literally some people say,
8 Well, your dog's out walking you. Is that the same
9 kind of way you are with Magnum?
10 A. No, sir.
11 MR. PAYNE: Objection; side bar.
12 THE COURT: Sustained. Hold on. I'll
13 sustain side bar objection. Rephrase your question.
14 Q. (BY MR. MORIN) But does your dog walk you, or
15 you walk the dog? You have control of him?
16 A. I walk the dog.
17 Q. Okay. He's not pulling on you?
18 A. No, sir.
19 Q. Well, I mean, don't you have enough control
20 over your dog that you can keep him next to the
21 sidewalk rather than walking some 15 or 20 feet into
22 a -- a neighbor's yard?
23 A. I guess if I wanted to, yeah, but I don't see
24 any problem with him walking into the neighbor's yard.
25 Q. You don't see a problem with your trespassing
208
1 on somebody's land and -- and you're letting your dog
2 take care of business on their -- on their front lawn?
3 A. I've never had a complaint. I'm sorry.
4 Q. Okay. So it's your testimony that you didn't
5 see Mr. Cronfel biking down the street?
6 A. Not at all, no, sir.
7 Q. And he's going -- headed towards the direction
8 that the car is parked, correct?
9 A. That's correct, yes, sir.
10 Q. All right. And you agree that it was about
11 6:30 in the afternoon?
12 A. It was sometime 6:30 -- between 6:30 and 7:30.
13 I don't know exactly.
14 Q. Okay. And you agree it was a weekday?
15 A. Yes, sir.
16 Q. Okay. So people are off work, and -- and
17 there's typically more cars when people are off work?
18 A. Typically more cars? I don't...
19 Q. People -- there's more cars parked because
20 they're off work, they're home. Do you know what time
21 this photograph was taken?
22 A. I believe that was taken in the morning on a
23 weekend.
24 Q. Okay. You took it?
25 A. Yes, sir.
209
1 Q. Okay. Do you recall there being more cars
2 parked where the white car is parked?
3 A. No, sir.
4 Q. Okay. All right. You don't recall either
5 way?
6 A. That's generally how it was every time I
7 walked by there. That white car was parked right
8 there.
9 Q. Yeah. But I'm asking you on July 23rd, around
10 6:30 in 2009, were there more than one car parked
11 there?
12 A. I don't believe there was.
13 Q. Okay. All right. So you can't -- you're
14 facing whatever direction you're facing, and you didn't
15 see Mr. Cronfel bicycling in -- in that direction, down
16 the direction that the car's parked?
17 A. That's correct.
18 Q. All right. But you've bent down -- I'm sorry.
19 Let's back up. You're holding the leash while your dog
20 is taking care of business; is that right?
21 A. I'm holding the leash. And when I'm picking
22 up his waste is when I drop it, and step on it, and
23 kneel down and pick up the -- his waste.
24 Q. Okay. And so you drop the leash, you drop
25 control of the leash; is that right?
210
1 A. I put it under my foot.
2 Q. Okay. So does the leash have a loop at the
3 end of it?
4 A. Yes, it does.
5 Q. And do you keep it around your wrist?
6 A. I do not.
7 Q. You do not. You just hold -- you don't put
8 your hand into the loop?
9 A. No.
10 Q. When you're walking?
11 A. That could be dangerous if a dog were to --
12 you could injure yourself.
13 Q. Take off running on you? Has that happened
14 before?
15 A. To me, no.
16 Q. Okay. So you don't put your hand into the
17 loop, right?
18 A. That's how we were trained, yes.
19 Q. All right. So you -- you let go of the leash
20 to lay it down on the grass, right?
21 A. That's correct.
22 Q. And that looks like some pretty lush
23 St. Augustine grass there, correct?
24 A. Yes.
25 Q. And -- so you let go of the leash, and you
211
1 step on it?
2 A. Correct.
3 Q. And that's your attempt to control the dog,
4 correct?
5 A. That's correct.
6 Q. But when you let go of the leash, you let
7 control of the dog, correct?
8 A. I don't believe so.
9 Q. All right. Well, you're putting the leash
10 down on the soft grass, the St. Augustine grass,
11 correct?
12 A. That's correct.
13 Q. So you're not going to have your foot pressing
14 weight on a hard surface that's going to make it hard
15 to pull that leash out, are you?
16 A. I guess that's true.
17 Q. Right. You've got a soft surface, so it can
18 easily pull out of there because you've got several
19 inches of sod, correct?
20 A. I weigh 200 pounds. I don't know how far the
21 leash is being compressed into -- into the earth,
22 but...
23 Q. But not against a hard surface?
24 A. That is correct.
25 Q. So the next thing you know your dog barks and
212
1 takes off; is that right?
2 A. I don't know if he barked or not.
3 Q. You don't know if he barked? Didn't you say
4 in your deposition that he barked and then he took off?
5 A. I don't know.
6 Q. Did you -- did you see your dog take off?
7 A. I did not.
8 Q. All right. And since you read your deposition
9 on Sunday, the question was asked of you, But you
10 didn't see him take off? You answered, No, I mean, I
11 just heard him take off. I mean that -- that's kind of
12 a bark and takeoff type -- type -- type of action. Do
13 you recall that?
14 A. If that's what it says right there, then I --
15 I don't disagree.
16 Q. All right. Did -- did you know what the dog
17 was barking at?
18 A. No, sir.
19 Q. Did you see what the dog was barking at?
20 A. No, sir.
21 Q. When he immediately takes off, what action do
22 you do to try and stop him?
23 A. I didn't -- I didn't do anything. I mean,
24 when I turned around is when the accident occurred.
25 Q. Okay. Did you attempt to call him to stop
213
1 him?
2 A. No, sir.
3 Q. Do you have that kind of control over Magnum
4 that you can -- you can make a command, and he stops?
5 A. No, I don't believe I do. He'll come, but
6 stop? I -- I don't know.
7 Q. All right. And then the next thing you hear
8 is barking and screaming; is that right?
9 A. I don't know that I heard screaming. I think
10 Mr. Cronfel made a noise, but I don't know if it was
11 screaming.
12 Q. Okay. Let's -- you recall your deposition
13 that you gave on October 29, 2013, correct?
14 A. Yes.
15 Q. All right. Let me point you to Page 14, Line
16 20. The question is, What's the first thing you saw
17 with regards to the bicyclist? Your answer? Could you
18 read that, sir?
19 A. "I think I heard the dog barking and some
20 screaming or, you know, ouch. I don't really recall.
21 I mean, I wish I did."
22 Q. Okay. When you first saw Mr. Cronfel, where
23 was he?
24 A. He was in the middle of the street.
25 Q. Okay. Was he standing? Was he laying on the
214
1 ground?
2 A. He was laying on the street.
3 Q. Okay. And was he moaning in pain?
4 A. Yes.
5 Q. You heard his -- him moaning in pain?
6 A. Yes.
7 Q. And you saw him, correct?
8 A. Yes.
9 Q. And you could see that he was in extreme pain?
10 A. I don't know the extreme -- the amount of pain
11 he was in. I could tell he was in pain, yes, sir.
12 Q. You could tell he was in a lot of pain?
13 A. You'll have to ask Mr. Cronfel.
14 Q. What did you do next?
15 A. I asked him how he was doing.
16 Q. Did he respond?
17 A. He said he was hurting.
18 Q. Okay. Did you attempt to lift him up?
19 A. I asked him if he wanted to move. I did not
20 attempt to lift him, no, sir.
21 Q. Okay. And then what was the next thing you
22 do?
23 A. Then more people started gathering around,
24 some of the neighbors.
25 Q. Okay.
215
1 A. And I was also concerned about my dog as he
2 had taken off. I think he was scared by the incident
3 as well.
4 Q. Okay. And -- so you took off to chase down
5 your dog?
6 A. I went to go locate the dog, yes.
7 Q. Could you see him from where you stood?
8 A. I don't know. He was maybe three houses down,
9 four houses down.
10 Q. Okay. And were you afraid for other people?
11 Is that why you went after Magnum?
12 A. No. I was afraid for the dog. I mean, he
13 just was involved in a traumatic event himself.
14 Q. Okay.
15 A. So I don't know what he's going to do, if he's
16 going to run off. I -- I don't know.
17 Q. Okay. And, in fact, he -- he got injured from
18 the bicycle accident, correct?
19 A. He got injured, yeah. He had a nick on his
20 nose.
21 Q. Okay. And so is there any doubt in your mind
22 that your dog collided with the wheel as Mr. Cronfel
23 described?
24 A. I don't know what happened. I don't know if
25 he hit the wheel. I don't know if he hit the street.
216
1 I don't know what happened. I didn't see it.
2 Q. Okay. Now, you had -- had previous instances
3 where your dog got upset when bicyclists came by,
4 correct?
5 A. The only time is when there was a large group
6 that would ride through the neighborhood. There was
7 maybe 30 or so, maybe more, and the -- and the noise
8 involved with those guys talking and all, he would get
9 a little upset. That happened on Saturday mornings,
10 when they would ride through the neighborhood on
11 Saturday mornings.
12 Q. Okay. And he would get upset and like lunge
13 towards them, or he'd be hard to control him on a
14 leash?
15 A. He would bark.
16 Q. Okay. But, I mean, as you're holding him on
17 the leash?
18 A. As we're -- yes, as we're holding him on the
19 leash.
20 Q. Now, you agree that after you put your foot on
21 the leash to pick up the waste and the dog pulled away,
22 you agree that you were no longer in control of your
23 dog, correct?
24 A. That's correct.
25 Q. Now, do you have any knowledge of any facts
217
1 that Mr. Cronfel did anything wrong in this collision
2 with your dog?
3 A. I don't know what he did because I did not see
4 him.
5 Q. Okay. So you don't have any facts to base on
6 that --
7 A. I don't know. I did not see what he was
8 doing.
9 Q. Okay. Prior to the collision or after the
10 collision and until you saw him on the ground; is that
11 right?
12 A. The only time I saw him was after the
13 collision.
14 Q. Now, while you're holding your dog on a leash
15 and it's taking care of business, can you not put the
16 loop around your wrist and pick up the waste with one
17 hand?
18 A. That is an option, yes, sir.
19 Q. Okay. Were you trained that way?
20 A. No.
21 Q. No? When was the last time you had a dog
22 prior to having Magnum?
23 A. When I was living in El Paso as a teenager,
24 almost -- almost 40 years ago now.
25 Q. 40 years prior to 2009?
218
1 A. No. I would say 30 years prior to 2009.
2 Q. Okay. Now, do you carry the bags around
3 yourself that you put the waste in?
4 A. Yes, sir.
5 Q. And have -- have you since then tried a
6 different technique where you do -- the bag goes over
7 your hand, and you pick it up, and then you pull the
8 bag back?
9 A. That's the only way I've ever picked up dog
10 waste, yes, sir.
11 Q. Okay. So that's the same technique -- you put
12 your hand in the bag, you pick up the waste, and then
13 you pull the bag over?
14 A. Correct.
15 Q. And that day you could have looped that --
16 looped the leash around your hand and kept control of
17 the dog by doing that technique, correct?
18 A. I guess I could have, yes, sir.
19 Q. And you didn't do so, correct?
20 A. I did not.
21 Q. Prior to doing that, did -- did you take a
22 moment to look around if -- if there was any bikers
23 coming -- coming through?
24 A. I did not.
25 Q. Did you hear Mr. Cronfel coming through?
219
1 A. I did not.
2 MR. MORIN: Pass the witness.
3 MR. PAYNE: May I proceed?
4 THE COURT: Yes.
5 CROSS-EXAMINATION
6 BY MR. PAYNE:
7 Q. Mr. Murray, you alluded to, just a moment ago,
8 that -- just briefly, by way of background, where did
9 you grow up?
10 A. I grew up in El Paso, Texas.
11 Q. And where did you go to school after that?
12 A. I went to college in San Antonio at St. Mary's
13 University.
14 Q. And you -- and when did you come to Austin?
15 A. Moved to Austin in -- in 1994.
16 Q. And when did you move into Travis Country?
17 A. 1996.
18 Q. Are you a married man?
19 A. Yes.
20 Q. And your wife lives there with you with
21 Magnum?
22 A. That's correct.
23 Q. And you talked about this a little bit, but
24 how did you come to have Magnum?
25 A. Well, when my wife and I met, we decided to
220
1 get a dog, and she did some research on dogs that maybe
2 don't shed a whole lot and also aren't real, I guess,
3 real barkers, so to speak, and so that was the breed
4 that we decided upon.
5 Q. And where did y'all get him from?
6 A. From the Texas GSP Rescue.
7 Q. What does GSP stand for?
8 A. German short-haired pointer.
9 Q. Oh, okay. Okay. It's a unit particular to
10 that breed?
11 A. Solely that breed, yes, sir.
12 Q. I see. All right. Then once you got
13 Magnum -- and you had gotten him about a year and a
14 half before this incident occurred?
15 A. Yes. In December 2007.
16 Q. All right. And after you got him, you alluded
17 to this again earlier, but tell us about what kind of
18 training you -- you did with him?
19 A. For Christmas in December 2007, my wife bought
20 me -- actually us, the first round of training lessons.
21 It was six in-home training lessons from a fellow at
22 Gateway Dog Training, Greg Sharp. And then probably
23 about a year later, we had another lady come by,
24 Tara -- I can't remember her last name, Training by
25 Tara, who also did two in-home trainings with us.
221
1 Q. And I -- you alluded to this earlier, but I
2 understood this was about a establishing trust between
3 the dog and --
4 A. Correct.
5 Q. -- the people? And did you -- did you
6 routinely walk Magnum?
7 A. Every day, yes.
8 Q. Okay. And was this road -- is it Twisted
9 Tree?
10 A. Twisted Tree, yes, sir.
11 Q. Was this part of y'all's regular route?
12 A. It depends. I think that was probably a
13 little bit of a shorter walk because of the summer
14 heat. Generally, we would do a three-mile loop around
15 the -- the neighborhood, but that was because there was
16 a little more shade and all involved. My wife was --
17 she's a flight attendant, so she was out of town. So
18 that's the route I chose to take.
19 Q. Okay. Now, the -- you've described how you
20 took care of Magnum's waste. He -- he -- you know,
21 kind of hints that he wants to go over here, and he
22 does his business, and then you put -- you kneel down,
23 you put the leash under your foot, and you put on the
24 glove, and you scoop it up. Is that a fair statement?
25 A. Yes.
222
1 Q. Is that -- was that also something routine?
2 Is that -- is that how you did it?
3 A. Yes.
4 Q. And before July 23rd, 2009, had you had any
5 problems with Magnum getting out from under your foot?
6 A. Never.
7 Q. And I didn't -- I didn't know this, but you
8 mentioned this in direct -- or cross-examination.
9 Were -- did you say you were trained not to put it --
10 not to put the loop on your wrist? Did I
11 misunderstand?
12 A. Correct. Yeah. Because it can injure the --
13 the owner, I mean, if the dog takes off, you want to
14 have just -- hold it when you're walking.
15 Q. And who taught you that?
16 A. Greg Sharp.
17 Q. Okay. So the professional trainer who came to
18 your home and you had the lessons with, he's the one
19 who gave you that instruction?
20 A. That's correct.
21 Q. And this picture here, you took this picture
22 on a weekend morning; is that right?
23 A. That's correct.
24 Q. And this was one of your routine walks,
25 correct?
223
1 A. Yes.
2 Q. And is it your testimony that this is
3 typically how this scene looked on that Twisted Tree
4 Street?
5 A. Yes, sir.
6 Q. And to the best of your recollection, is this
7 about how it looked when this event occurred?
8 A. Correct, other than the sun would have been on
9 the other side, but, yes.
10 Q. And -- all right. And when you went out
11 there, you -- you heard the commotion behind you, you
12 turned, you go to see what has occurred. Where did you
13 find Mr. Cronfel?
14 A. In the middle of the street.
15 Q. Was he up against that white car?
16 A. No, no. He was three, four feet, at least, to
17 the left of it. He wasn't even with the car. He was a
18 little forward of the car.
19 Q. He was forward of the car and out in the
20 middle of the street?
21 A. Correct.
22 Q. And that's where -- based on what you saw
23 immediately thereafter, that's where he came to rest?
24 A. That's correct.
25 Q. In the middle of the street?
224
1 A. Correct.
2 Q. Mr. Murray, did you feel like the way you
3 handled the waste process to be safe?
4 A. Yes, I do.
5 Q. Did you feel like you had control of Magnum at
6 the time?
7 A. Yes.
8 Q. Thank you, sir.
9 MR. PAYNE: Nothing further.
10 MR. MORIN: No more questions, Your
11 Honor.
12 THE COURT: Okay. Thank you. You may
13 step down.
14 All right. Plaintiff, do you have any
15 other witnesses?
16 MR. MORIN: We have one final witness,
17 Your Honor.
18 THE COURT: You may call your next
19 witness.
20 MR. CAGLE: Shane Selberg.
21 THE COURT: Come on up. Please raise
22 your right hand.
23 (Witness was sworn in.)
24 THE COURT: Thank you. Please have a
25 seat.
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