Maribel Imamovic v. Robert Milstead and Texford Battery Company Inc. ( 2015 )

Opinion issued February 5, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-01030-CV
———————————
MARIBEL IMAMOVIC, Appellant
V.
ROBERT MILSTEAD AND TEXFORD BATTERY COMPANY, INC.,
Appellees
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Case No. 2012-46761
MEMORANDUM OPINION
This is a car-wreck case. Appellant Miribel Imamovic appeals the trial
court’s judgment, entered on the jury’s verdict, awarding her zero damages. We
affirm.
BACKGROUND
Appellee Robert Milstead,1 while driving a truck owned by appellee Texford
Battery Company Inc., rear-ended the Toyota Prius Imamovic was driving.
Appellees admitted fault, and trial was held only on the issue of personal-injury
damages. Imamovic argues that the jury’s awarding zero damages was against the
great weight of the evidence and manifestly unjust. Accordingly, she requests that
we reverse and remand for a new trial.
A. Trial Testimony
Maribel Imamovic
Imamovic was 42 years old at the time of the 2013 trial. She works as a
vehicle-for-hire inspector for the City of Houston in its Administration Regulatory
Affairs Department. In this position, she travels around Houston to inspect
vehicles like taxicabs, limos, and private school buses. She testified that she was
stopped in her City-owned Toyota Prius at a red light on July 5, 2011, when she
was struck from behind. She testified that the force made her “want[] to black out”
and “overwhelmed.” The police report was admitted into evidence and stated the
investigator’s conclusion that Milstead and Imamovic were both stopped at the red
light before Milstead moved forward and struck the back of Imamovic’s car.
1
Robert Milstead died before trial, and his son Robert John Milstead was
substituted as heir.
2
Imamovic told the police officers that responded that she did not need
medical treatment, and she drove the Prius from the scene. She testified, however,
that the following day she starting feeling sore and that her neck pain was
unbearable by the third day. It constantly felt like sharp needles were stabbing her
neck.
Imamovic made an appointment at Kelsey-Seybold, which is her primary
medical provider. Her regular doctor, Dr. Kelly Cajahuaringa, was not available,
so she instead saw Dr. Xavier Castillo on July 7, 2011. She was unimpressed with
Castillo, as he did not appear concerned. He prescribed her anti-inflammatory and
pain medications and—at Imamovic’s request—ordered x-rays. According to
Imamovic, Castillo also ordered physical therapy for her, although there is no
reference to that in Castillo’s notes. Castillo’s notes from his July 7 appointment
reflect that he “placed her on light transitional duty” and asked her to make a
follow-up appointment within two weeks. She testified that she went to physical
therapy at Focus Physical Therapy after her first visit with Castillo, but did not
return to work. Imamovic instead waited almost two months before returning to
see Castillo on August 31, 2011. She first testified did not return to the doctor
before then because she had plenty of pain medication and did not believe that
Castillo would do anything helpful for her. She later testified that she did not
3
return earlier because she did not control when Kelsey Seybold scheduled
appointments.
Imamovic also testified that, at the August 31, 2011 follow-up appointment
with Castillo, she asked for a release to return to work because she was concerned
that the City was laying off employees and did not want her employment to be
adversely impacted by her being out with an injury. Castillo’s notes from that
follow-up appointment state that Imamovic told him that “she has an attorney for
her worker’s comp case” and that an outside doctor had referred her to physical
therapy. Castillo’s records also reflected that he told Imamovic that she had a “soft
tissue injury” and “degenerative arthritis” in her neck.
Her physical therapy records also show that her physical therapy had ended
by August 31, 2011, but that a Dr. Roberts, who works at Focus Physical Therapy,
had referred her for an MRI at Memorial MRI, which Imamovic testified was
because she was still complaining about neck pain.
In September 2011, Imamovic was in another wreck in which she rear-ended
another vehicle. She testified that was a minor accident in which she was not
injured.
Imamovic testified that, in January 2012, a co-worker recommend that she
see a Dr. Berliner. “New patient” forms she filled out at Dr. Berliner’s office,
however, were dated November 2011. Although she testified that she was still in
4
pain and taking painkillers and muscle relaxers when she went to see Berliner, the
intake paperwork she filled out for her first visit with Berliner reflected that she
was not taking any medications. She testified at trial that was because she did not
remember the names of any of the medication she was taking. Berliner’s records
reflected that Imamovic did not tell Berliner about the September 2011 wreck and
that she specifically denied suffering any injuries prior to the July 2011 accident.
Contrary to what she told Berliner, Imamovic testified at trial to having
suffered a previous lost-time on-the-job fall and a previous rollerskating injury.
And, although she testified to never having previously had shoulder pain, medical
records were introduced at trial showing that, in 2009, x-rays were ordered of her
shoulders based upon her complaint about severe pain in both shoulders. Medical
records also reflected that, when she was injured on the job in March 2011, she
took several weeks off work and made a workers’ compensation claim
complaining of lower back pain and her arm tingling.
Imamovic testified to being much more impressed with Berliner than
Castillo, as Berliner seemed to listen to her and be very knowledgeable. She
testified that Berliner looked over her MRI results and told her that she has bulging
discs in her back that put pressure on her spinal cord. Berliner treated her with an
epidural steroid injection, but that did not help her pain. She has the option to have
surgery to have two disc in her neck fused. She first testified that she had not yet
5
had the surgery because the defendants refused to pay for it. On cross-
examination, she conceded that she could have filed for workers’ compensation or
used her private insurance for the surgery. She did not avail herself of those
options because she did not think the City should have to pay for her surgery
because the accident was not her fault.
Imamovic testified that she was still in significant pain at the time of trial.
Her neck injury also makes daily driving with her job challenging, as she has to
move her neck a lot. She had hoped to become a police officer and has passed the
written exam, but her neck injury prevents her from being able to perform the
physical examination part of the test. She also used to exercise regularly, which
she cannot do any more.
On cross-examination, Imamovic agreed that she had a physical examination
with her regular doctor, Dr. Cajhuaringa, two months before trial, and that she did
not mention to Cajhuaringa that she had any neck or back pain, and did not list
painkillers as medication that she was taking at the time of the physical. Medical
records from that June 2013 examination were entered into evidence, which
reflected that her neck was supple and had a normal range of motion.
On cross-examination, Imamovic also agreed that—although she testified
that her back injury from the accident made her sad and depressed—she actually
suffered from depression prior to the accident and had been on anti-depressant
6
medication for a number of years. She also clarified that although she testified
essentially that she was unable to pass the law enforcement physical because of her
back injuries, she actually stopped working out three years before the July 2011
accident. She also agreed that Berliner had never told her that she could not work
out. She further testified on cross-examination that she had not done the other
things necessary to applying for law enforcement jobs, including completing
applications and registering for the required college classes.
Dr. Kenneth Berliner
Dr. Berliner’s deposition testimony was played at trial. He testified that he
is a board-certified orthopedic surgeon. At Imamovic’s first appointment with him
in November 2011, she reported to him that her vehicle had been rear-ended by a
truck in July 2011. Her airbags did not deploy, and her “head and torso were
jerked in a forward-and-back motion causing intense pain.” She told Berliner that
her physical therapy had not given her relief, and that she had pain radiating into
both arms and constant back pain. She also reported discomfort with side-to-side
movement and pain radiating to the left leg with some numbness and tingling.
Through his examination and evaluation of Imamovic’s MRI results,
Berlinger diagnosed her with “disk protrusions at C5-6 and C6-7” and “some disk
bulging at L4-5.” He first recommended a cervical epidural steroid injection to
decease inflammation and prescribed an oral anti-inflammatory medication, a
7
medication for muscle spasms, and a pain medication. In April 2012, Imamovic
had the steroid injection performed, but on May 22, 2012, reported that she had
constant pain in her neck, pain with movement, stiffness, pain radiating to both
arms, back pain and stiffness, and occasional pain radiating into her right leg.
At her May 2012 appointment, Berliner recommended surgery; namely, a
cervical discectomy and fusion. Berliner testified to his opinion that surgery would
bring Imamovic significant lasting relief. He also testified to his opinion that the
“surgery is medically necessary to help alleviate her symptoms that arise from the
disk protrusion and herniations at C5-6 and C6-7.” He further opined that she
would have a “permanent physical impairment” from the procedure, in that she
would lose some range of motion in her neck and back. He estimated these as 28%
to 29% “whole person impairment.”
Dr. Stuart Weil
The appellees introduced the deposition testimony of their neurosurgeon
expert, Dr. Weil. Weil testified that he reviewed Imamovic’s medical records and
examined her. His opined that Imamovic’s neck problems seen on her x-rays were
degenerative in nature and not caused by the July 2001 vehicle accident. Weil
found significant the absence of any mention of radiating symptoms in her arms
until Imamovic saw Berliner. This is because, if there were neurological injuries
resulting from a traumatic injury, those would be expected to manifest themselves
8
“immediately or shortly after” the event. He opined that she may have suffered
some soft tissue symptoms as a result of the accident, which would be
appropriately treated with some physical therapy and muscle relaxants. He saw no
evidence, however, of a permanent or sustained structural or neurological injury.2
Weil also opined that nothing in the MRI or his examination of Imamovic
objectively supported her complaints of numbness or tingling in her extremities.
He disagreed with Berliner’s assessment that she needed surgery.
Dr. Richard Harding
Dr. Harding testified as a biomechanical causation expert.3 He relied upon
photographs of the wrecked Prius, the vehicle repair estimate, the accident report,
the various physicians’ depositions, and Imamovic’s medical records. He testified
that comparing the damage to the Prius with studies by the Insurance Institute for
Highway Safety reflect that this collision had a Delta V of less than 8 miles per
hour. Delta V signifies the change in velocity and acceleration. Harding explained
that a Delta V of 8 miles an hour indicates that a rear-ended stationary vehicle “has
moved from zero miles an hour to 8 miles an hour because of the crash.” He
2
He also opined that, to the extent that any abnormality seen on her imaging test
was the result of an injury, it would more likely be caused by her prior falls than
by an automobile accident.
3
Biomechanics is the study of force and acceleration on human tissue.
9
testified that any neck injury from a less than 8 Delta V “would be a soft tissue
injury and it would resolve within days at the most.”
B. Evidence on Damages
No bills from Kelsey-Seybold were introduced at trial. Records from Focus
Physical Therapy ($2,385), Memorial MRI ($4,400), and Berlinger ($7,906.40)
reflected a total of $14,691.40 in pre-trial medical expenses. Imamovic testified
that she had not personally paid these expenses, but that they would be payable out
of any award. Berlinger estimated future medical expenses to be $81,000.00.
Imamovic also requested awards of $45,000.00 for past pain and suffering,
$100,000.00 for future pain and suffering, $50,000.00 for future lost wages, and
$25,000.00 for future physical impairment.
C. The jury’s verdict and the trial court’s judgment
The jury did not award any damages to Imamovic in response to the
following question:
What sum of money, if paid now in cash, would fairly and
reasonably compensate Maribel Imamovic for her injuries, if any, that
resulted from the occurrence in question?
Consider the elements of damages listed below and none other.
Consider each element separately. Do not include damages for one
element in any other element. Do not include interest on any amount
of damages you find.
Do not include any amount for any condition existing before
the occurrence in question, except to the extent, if any, that such other
10
condition was aggravated by any injuries that resulted for the
occurrence in question.
Answer in dollars and cents, if any.
a. Physical pain and mental anguish in the past. $0.00
b. Physical pain and mental anguish in the future. $0.00
c. Loss of earning capacity in the future. $0.00
d. Physical impairment in the past. $0.00
e. Physical impairment in the future. $0.00
f. Medical care in the past. $0.00
g. Medical care in the future. $0.00
The trial court entered a take-nothing judgment on the jury’s verdict.
Imamovic filed a motion for new trial arguing that the jury’s failure to award
damages was against the great weight of the evidence and manifestly unjust. The
trial court overruled the motion for new trial, and Imamovic timely appealed.
ISSUE ON APPEAL
In a single issue, Imamovic argues that “the jury’s award of ‘zero’ damages,
and the Court’s entry of a take nothing judgment was against the great weight and
preponderance of the evidence.”
STANDARD OF REVIEW
“When a party attacks the factual sufficiency of an adverse finding on an
issue on which she has the burden of proof, she must demonstrate on appeal that
the adverse finding is against the great weight and preponderance of the evidence.”
11
Benavente v. Granger, 312 S.W.3d 745, 748 (Tex. App.—Houston [1st Dist.]
2009, no pet.) (quoting Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.
2001)). In reviewing a challenge that a finding is against the great weight and
preponderance of the evidence, we consider and weigh all of the evidence and may
set aside the verdict only if the finding is so against the great weight and
preponderance of the evidence that it is clearly wrong and unjust. Id.; Cain v. Bain,
709 S.W.2d 175, 176 (Tex. 1986). A jury may believe one witness and disbelieve
another, and it may resolve inconsistencies in any witness’s testimony. Eberle v.
Adams, 73 S.W.3d 322, 327 (Tex. App.—Houston [1st Dist.] 2001, pet. denied).
ANALYSIS
Imamovic argues that the “zero damages” rule applies here, which she
asserts mandates reversal of the trial court’s judgment because she introduced
evidence of an objective injury and proved damages flowing from the injury. See,
e.g., Russell v. Hankerson, 771 S.W.2d 650, 653 (Tex. App.—Corpus Christi 1989,
writ denied) (“A jury is not at liberty to disregard the evidence that an injury has
occurred and award no damages.”). Appellees disagree, arguing that the zero
damages rule “does not apply in this case [because] Imamovic’s injuries were
subjective and controverted.” They contend that the jury was not required to
believe Imamovic’s claim of injury from the accident, especially given her
impeachment at trial “on several issues, including her previous medical history,
12
multiple accident history, and inconsistent treatment and complaints for her alleged
injuries.” We agree with appellees that the jury’s failure to award damages is not
against the great weight and preponderance of the evidence.
“The general rule is that a finding of the jury is entitled to great deference by
the appellate court unless the record reflects that the jury is motivated by passion,
prejudice or something other than conscientious conviction.” Lehmann v. Wieghat,
917 S.W.2d 379, 385 (Tex. App.—Houston [14th Dist.] 1996, writ denied). A jury
finding cannot be set aside on appeal merely because this Court would have
weighed the evidence differently or reached another conclusion, but only if it is so
against the great weight and preponderance of the evidence as to be manifestly
wrong and unjust. See Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651
(Tex. 1988).
Imamovic cites nine cases in support of her argument that the jury’s
awarding her zero damages was against the great weight and preponderance of the
evidence. See Davis v. Davison, 905 S.W.2d 789, 791 (Tex. App.—Beaumont
1995, no writ) (jury’s awarding zero damages for past medical bills, past mental
anguish, and past physical pain was against great weight and preponderance of
evidence because plaintiff’s burns were objective and documented by medical
records); Monroe v. Grider, 884 S.W.2d 811, 820 (Tex. App.—Dallas 1994, writ
denied) (jury’s awarding zero damages for past pain and suffering was against
13
great weight and preponderance of evidence, given objective nature of appellant’s
injuries, which included fractured wrist); Prescott v. Kroger Co., 877 S.W.2d 373,
375–76 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (jury’s award of zero
damages for past pain and suffering was against great weight and preponderance of
evidence given uncontroverted evidence that appellant’s injuries required surgery
that was undertaken before trial); Hicks v. Ricardo, 834 S.W.2d 587, 590–91 (Tex.
App.—Houston [1st Dist.] 1992, no writ) (jury’s awarding zero damages for future
pain and mental anguish was against great weight and preponderance of evidence
given uncontroverted evidence of an objective injury, i.e., broken teeth and gum
infections caused by faulty bridge, that still existed at time of trial); Hammett v.
Zimmerman, 804 S.W.2d 663, 668 (Tex. App.—Fort Worth 1991, no writ) (jury’s
awarding zero damages for past pain and physical disfigurement to plaintiff with
objective symptoms of injury was against great weight and preponderance of the
evidence, but jury’s awarding zero past pain and physical disfigurement to another
plaintiff involved in the same automobile accident was not against great weight
and preponderance of the evidence because “record reflects that she presented no
objective evidence of injury”); Russell, 771 S.W.2d at 653 (jury’s award of zero
damages for past pain, mental anguish, physical impairment and medical expenses
was against great weight and preponderance of evidence given jury’s finding
defendant at fault in car accident, plaintiff’s clear “objective symptoms of injury,”
14
and lack of evidence “to controvert the evidence that [plaintiff] was injured in the
collision and that she suffered pain and some physical impairment prior to trial”);
Cornelison v. Aggregate Haulers, Inc., 777 S.W.2d 542, 548–49 (Tex. App.—Fort
Worth 1989, writ denied) (jury’s awarding zero damages to parents for the death of
son was against great weight and preponderance of evidence given uncontroverted
evidence that parents were very close to son and “his death resulted in emotional
distress, pain, and anguish to his parents”); Robinson v. Minick, 755 S.W.2d 890,
891 (Tex. App.—Houston [1st Dist.] 1988, writ denied) (jury’s award of zero
damages for past physical impairment was against great weight and preponderance
of evidence, given objective nature of the injuries that included “multiple facial
fractures that required 12 hours of surgery and approximately a month of
hospitalization”); Porter v. Gen. Tel. Co., 736 S.W.2d 204, 205 (Tex. App.—
Corpus Christi 1987, no writ) (jury’s awarding zero damages for past pain was
against great weight and preponderance of evidence because there was evidence of
objective injury, i.e., lacerations on appellant’s arm, and no evidence “to controvert
the evidence that appellant was cut in the collision”).
Here, although appellees admitted fault in the July 2011 automobile
collision, the jury heard ample evidence casting doubt on Imamovic’s credibility,
as well as evidence from which the jury could conclude either that Imamovic’s
back was not injured or, alternatively, that any injury was caused by earlier or later
15
incidents about which she was not forthright. “Even if the defendant’s liability has
been established, proof of [a] causal nexus is necessary to ascertain the amount of
damages to which the plaintiff is entitled.” Walker v. Ricks, 101 S.W.3d 740, 747
(Tex. App.—Corpus Christi 2003, no writ). The jury is not bound by expert
testimony about the cause or extent of a plaintiff’s subjective injuries, even when
the expert’s testimony is uncontroverted. Id. at 746–48 (evidence from which “the
jury could reasonably inferred that [plaintiff] was not injured in the accident or that
any problems she complained of were pre-existing” supported jury’s award of zero
past medical expenses); see also Ponce v. Sandoval, 68 S.W.3d 799, 806–07 (Tex.
App.—Amarillo, 2001, no pet.) (“A jury generally may disregard a doctor’s
testimony on both the necessity of treatment and on the causation relationship
between the accident and the plaintiff’s complaints”).
The cases Imamovic relies upon are distinguishable because, unlike here, in
each of those cases the plaintiff suffered objective injuries, and the causal link
between the defendant’s conduct and the objective injury was established.
Because the jury’s awarding zero damages to Imamovic is not against the great
weight and preponderance of the evidence, we overrule Imamovic’s sole point of
error.
16
CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
17