Inez Manigault v. Jane Thorn-Henderson ( 2015 )

CASE NO: 12-14-00156-CV
FILED \H COURT OF APPEALS
IN THE COURT OF APPEALS
FOR THE TWELFTH DISTRICT Oi
TYLER, TEXAS
CATHY £
INEZ MANIGAULT
Appellant
v-
JANE THORN-HENDERSON
Appellees
On Appeal from Cause No. 1228525 145™ JUDICIAL District Court
NACOGDOCHES COUNTY TEXAS
BRIEF OF APPELLANT
Inez Manigault
P. 0. Box 81922
Atlanta, Georgia 30366
(843) 367-0007
Pro Se Litigant
May 28, 2015 Oral Argument Requested
VJ
IDENTITY OF PARTIES AND COUNSEL
APPELLANT
Inez Manigault
PROSE
TRIAL COUNSEL FOR APPELLANT INEZ MANIGAULT
W. Wade Flasowski
State Bar No: 24055482
Fairchild, Price, Haley & Smith
www.fairchildlawfirm.com
1801 North Street
Nacogdoches, Texas 75963
Telephone: (936) 569-2327
Fax: (936) 569-7932
APPELLEE
Jane Thorn-Henderson
APPELLATE COUNSEL FOR APPELLEE JANE THORN-HENDERSON
Adam B. Allen
White Shaver, PC
205 West Locust Street
Tyler, Texas 75702
TRIAL COUNSEL FOR APPELLEE JANE THORN-HENDERSON
James E. Hughes
State Bar No: 10214525
Herald, Farish & Hughes
3400 W. Marshall,
Suite 402
Longview, Texas 75604
Telephone: (903) 297-7681
Fax: (903)297-7698
FILED IN COURT OF APPEALS
ia-m-ooiS(&-ci> 12th Court of Appeals D!?ti
jun -8 201
v
TABLE OF CONTENTS TYLER TEXAS
CATHY S. LUSK, CLERK
IDENTITY OF PARTIES AND COUNSEL ii
TABLE OF CONTENTS Hi
INDEX OF ALTTHORrnES iv-vii
STATEMENT OF THE CASE 1
STATEMENT REGARDING ORAL ARGUMENT 1
STATEMENT OF FACTS 1-9
ISSUES PRESENTED 9-10
SUMMARY OF ARGUMENT 11-12
ARGUMENT 12-26
CONCLUSION AND PRAYER FOR RELIEF 26
CERTIFICATE OF SERVICE
ISSUES PRESENTED/ENUMERATION OF ERRORS
1. Was the jury selection a fundamental error and prejudicial?
2. The trial court erred in entering judgment because there were legally sufficient
evidence to support the claim in damages in this lawsuit.
3. Is there factually sufficient evidence to support the juror's findings and judgment of
the trial court?
4. There were legally and factually sufficient evidence of the reasonableness and
necessity of medical expenses to prove a reasonable compensation for physical
impairment, loss of earning capacity sustained in the accident for physical pain and
mental anguish physical impairment she suffered in the past; and medical expenses,
and not submitting mental anguish and physical pain as a single submission.
5. Did the lower court commit a reversible error by excluding critical evidence at trial?
The trial court erred by improperly weighing the evidence and not applying controlling
law(s).
6. Did the trial court abuse its discretion and exceeded its power, Due Process?
7. Manigault argues the Ex Parte communication the trial judge, the Defense attorney
and his client address bias, prejudice and affected the juror's decision?
8. Did Plaintiff's attorney engage in dilatory practices to defeat his client, and did the
attorney act appropriately, when his client reported a sleeping jury to him?
9. Did the behavior pre and post trial along with the admission of false evidence
(statements, documents, photographs) by defense attorney inadmissible and speak to
willful disregard for the law?
10. The judge erred by submitting a broad form jury question about the damages in the
case in Question #2:What sum of money, if paid now in cash, would fairly and
reasonably compensate Inez Manigault for her damages, if any, resulting from the
occurrence in question?
11. The judge erred by submitting a broad form jury question about the damages in the
case in Question #2:What sum of money, if paid now in cash, would fairly and
reasonably compensate Inez Manigault for her damages, if any, resulting from the
occurrence in question?
12. Does the ruling of the Court Conflict with the Precedent of the Supreme Court?
II!
INDEX OF AUTHORITIES
CASES
PAGES
Amanda Sylvia Thompson v. State of Texas,
14-99-00855 11
Amazon v. State
487 SO.26.8 (Fla.1986) 11
ATI Ins, Co. v. Boyette,
342 S.W.2d 379, 383 (Tex. Civ, App—Beaumont 1960 wit refd n.r.e 14
In re Atlanta Pipe Corp., 304 F.3d 136, 143 (1st Qr.2002) 22
In re Atlantic Pipe Corp
304 F.3.d, 136, 143 (1st Cir 2002) 22
In re Barry
13 S.W.3d 525, 523 (Tex. Rev. Trib (1988) 23
Biair v. Bukson vs.
521 W.W.2d 652 (Tex.Civ. App—San Antonio (1975, no wit) 16
Brown v. Davis
123 S.W.3d 321, 325 (Tex.2002 11
Citizens &Co Bank v. Maddox 22
Citizens National Bank v. Waxahachie Scott
1955 S.W.3d 94, 96 (Tex 2006 13
Dawson v. Briggs
107 S.W.3d 739, 752 (Tex. App—Fort Worth 2003, no pet.) 17
Dawson
102 S.W.3d at 752 , 17
District Court Harris County on Appeal 23
iv
E. M. Kelley eta! Appellant v. Atlantic Gulf Stevedore, Inc. etai 18
In re Estate of Amadt
187 S.W.3d 84,88 (Tex. App—Beaumont, 205 no pet) 14,21
First Bank of Maretta v, Hartford Underwriters Insurance Company
2002 U.S. ( App—LEXIS 21117-25) 22
First Bank of Maretta v. Hartford Underwriters Insurance Company
2002 U.S. (FED App.—03561P (6th Cir. 2002 22
Garza v. Alviar
395 S.W.2d 821, 823 (Tex. 1965 15
Galleos
357 19
Gilbert v. Brownnell Electric
832 S.W.2d 143, 144-451 (Tex. App. Tyler 1992) 21
Golden Eagle Archery
116. S.W.3dat772 17
Grammar Group
S.W.3d at, 2012 WL 1025781,4 20
Harris City v. Smith
96 S.W.3d 230, 234 (Tex. 2002) Tex R. App. P. 44 (a)(2) 25
Marshall v. Jerrico Inc.,
446 U.S. 238, 242, 100 S.Ct 1610, 64 Lei 2d 182 (180) 22
Mart. v. Warren Miller Company
629 S.W.2d 706, 709 (Tex. App - Tyler 1982, no wit) 19
Miller v. Wilson
456 S.W.3d 654, 657 (Tex - 2000) ......11,13
Morgan v. Com Graphic Corp.
675 S.W.2d 729, 731, 9 (Tex. 1984) .25
Morgan v. Compugraphic Corp.
729 S.W.2d 729, 733 (Tex. 1984) 26
Norman 668 So; 20@1019-1020 13,26
Norris v. Jackson:
2-09-265-CV 2010 WL 426154 (Tex. App-Fort Worth Oct. 28, 2010 no pet 17
Pisgras v. Hart
832 S.W.2d 360, (Tex, app - Fort Worth 1992 (writ denied) 15
Robert Earl Lee v. The State of Texas
248th District of Texas 23
Roger Merritt thie Loman v. The State of Texas
(12-2005) 23
Service Comp International Guerra
348 S.W.3d 221 (Tex.2011) 17
Signal Oil & Gas Corp. v. Universal IiL Products
572, S.W.2d 320 (Tex 1978) 18
Smith v. Southernwestern Bell 9
Strickland
466 U.S. at 687; Young
25 S.W.3d at 712 12,23,24,25
S. V. Gigax
605 F.26 507 (10th Cir. 1979 23
Timothy J. Walh & Serena Chan ....18
487 SO.26.8 9 (Fla 1986) 13
Thomas v. Oil Gas Building, Inc.
582 S.W.2d 873, 881 Tex Civ App. Corpus Chritisti:1979 writ refd n.r.e.... 19
VI
United Federal Statues
Service Act of 1968 12
Title III of the Civil Rights Act of 1964 13
28 U.S. C. A. @ 1651 22
28 U.S. C.S Sec: 455 22
Codes
Tex Civ. Prac & Rem Code 18.091 19
Texas Code 41.0105 19
Rule
Texas District Rule 1.02(b) 24
VII
I. STATEMENT OF CASE
This appeal is from a judgment for damages incurred as a result of personal
injuries caused by a motorist's negligence (failure to control speed), while Manigault
was stopped for a red traffic light. The case proceeded to trial before a jury on May 13th
& 14th (Clerk's Record 10). Upon the vote of twelve jurors, Manigault was awarded
$7,517.63. A motion for an enlargement of time was filed by Manigault on May 23,
2014. The request was denied, by the trial court (CR 119-121). The Motion would ask
the court to disregard the juror's judgment and move for a new trial, under case No.
C1228525, filed in the Clerk of Court's office on August 13, 2012, by Plaintiff acting Pro
Se. The jury returned a verdict adverse to Manigault's request for an amount
reasonable in damages and Judge Campbell Cox signed a final judgment on the Jury's
verdict on June 6, 2014, (CR 134-135). Manigault timely filed a Notice of appeal on
June 10, 2014,,(CR 136- 137).
II. STATEMENT REGARDING ORAL ARGUMENT
Due to the important First Amendment and other constitutional Issues in this
case, Plaintiff-Appellant request oral argument. This case also presents matters of first
impression in the Circuit that would benefit from oral argument. The inclusion of oral
argument will significantly aid the decision of this court.
Ill STATEMENT OF FACTS
Beginning with the characterization by the Defense Attorney, James Hughes, the
1
underlying automobile accident as "minor" (RR 90), continuing with the Defense
attorney suggestion, that because something bad happened, psychologically Appellant
wanted something to peg it to, and exaggerated the severity of the accident (RR 92 &
94). The Defense continuing through presenting to the court, such as: after two and a
half years or so later with no treatment, Plaintiff come into court, with no selective
summary of evidence regarding her injuries (RR @90), suffered is both demonstrably
unjust, wrong and incomplete.
The Accident
On August 12, 2011, Manigault was headed to Stephen F. Austin College, in
Nacogdoches, Texas driving in from Atlanta Georgia. Manigault, stopped for red traffic
light, and was violently struck from behind (RR@53) by Defendant, Henderson. The
force from the collision was sufficient to cause Manigault to jerk forward and backward,
with foot on the brake, the car would not stop, no matter how hard the brake was
applied. The car was forced through the traffic light and finally came to rest, several
feet away, blocking both lane of traffic (RR 102-115, Dep @20). The court record does
not contain a full copy of Plaintiff's nor Defendant's deposition CR@25-30. Manigault,
was in shock and emotionally distraught, after the impact. Henderson exited her vehicle
to talk with Manigault. The Defendant was very apologetic, and stated "I hit you so hard
a part of my bumper fell of and I placed it in my trunk" (Dep @22 CR@21-25).
Henderson was cited for failure to control speed by Officer Hancock. (RR @P1,18-45).
As the night progressed Manigault, began to feel pain particularly in her neck and back
2
Dep@22. Treatment was received from Nacogdoches Medical Center by Dr. Roger
Collins, Medical physician, a Radiology Specialist from Lufkin Radiology who performed
a CT Scan, and an Emergency Room (ER) Physician of Forrest County Emergency
Center (RR Ex.@5,10,11,@14). Dr. Collins, ER diagnosis was no broken bones, Neck
Injury Cervical Strain that was more severe at C-3, C-4, through C-6-C7 Appellant's
blood pressure escalated, drugs had to be administered for the first time to reduce the
pressure. (RR Ex.4. CR 42-52(RR@119-120&122. The doctor prescribed, Flexeril,
Naprosyn, and Vlcodin. These were to be taken every 4-6 hours or as needed for pain.
His instruction was to continue treatment with an Orthopedic doctor (RR@122).
Plaintiff, had never taken any of these medication before the accident. After leaving
ER, Plaintiff's entire body ached, as told would happen by the ER Physician (Dep@ 24).
It was extremely difficult to get comfortable and Manigault had difficulty falling asleep ,
for the pains and aches (RR@126). Manigault sought treatment, in Atlanta. On Monday,
August 14, 2011, Appellant contacted Dr. Fowler, for an appointment. He indicated
there was nothing he could do at the time because the entire body ached. He advised
to continue taking the medication and wait a couple days before setting up an
appointment. The treatment with Dr. Fowler was up to four visits, before being referred
to physical therapy. Upon release he indicated once you have been hit with a 4,000
pound machine, you will continue to have pain (Dep@31). Physical Therapy treatment
was provided by Toni Allison, of Resolution Physical Therapy. Manigault underwent a
series of rigorous treatments from September 2011 - November 22, 2011. The pain
3
persisted, even after physical therapy. Before being released, the therapist provided
training for a home treatment training plan, to manage the pain. These treatments
wouid continue each morning throughout life. (Ex.). At one point the pain was
unbearable and lasted for several days a Chiropractor, Dr. Ruder was seen (Dep@33).
During and after the visit the pain was worst (RR @ 55 & 90 Dep.@33). Manigauit
continues the physical therapy training each day. Appellant realize you never get well
you learn how to manage the pain.
Background
The accident was reported to Farmer's Insurance Group (FIG) on August 15,
2011. A response letter was received dated, August 16, 2011 ( Ex.1). An agent on
behalf of Henderson, met with Manigault, September 1, 2011 ( Ex.2). On March 14,
2012, a letter was sent to FIG claim office, to initiate settlement (Ex.3). Brian Wenger
responded to the request letter dated April 20, 2012 (Ex.4), with an offer of $6, 047.14
Plaintiff, telephoned Mr. Wenger, to ask for a better offer. During the conversation, Mr.
Wenger, stated, "you should have been resting instead of seeking medical attention."
On April 25, 2012, a letter was sent declining Mr. Wenger's offer (Ex@5).
Filing Complaint
On May 11, 2012, Manigault filed a Complaint C1228321 in the 145th Judicial
District Court of Nacogdoches County, Texas, naming Jane Thorn-Henderson and
Farmers Insurance Group (FIG) as Defendants (Ex.6) A letter, was received dated June
22, 2012, from Carolyn Martindale, a representative for Defendant and FIG with an
offer in the amount of $7, 500.00 ( Ex.7).
Plaintiff entered into contract with W. Wade Flasowski, of Fairchild, Price, Haley
& Smith, on July 25, 2012 (Plaintiff Ex@8 CR@ 170). On August 13, 2012, Flasowski,
filed a new Complaint C1228525, CR@ 6-13, but did hot include Farmers Insurance
Group as a Defendant along with Henderson. The attorney did not explain his reason
for the exclusion. A letter dated August 1, 2013, was received from Attorney Flasowski,
indicating he needed to file a Cause of Non-Suit (CR@180-181), to Plaintiff's Pro Se
case filed in the Court Pro Se./The Motion was granted without prejudice by the courts.
Manigault made numerous calls to Flowoski, for status of the case, and provided
evidence through faxes. After numerous delays between the attorneys, the deposition
and mediation were scheduled. Mediations were scheduled for 9/11,10/1,10/3, and
10/14 CR@32 of 2013. Manigault was notified Mediation was scheduled for October 3,
2014, in Nacogdoches, Texas at 9:00 a.m. Manigault drove from Atlanta, Georgia to
Nacogdoches, Texas to attend the.mediation, to find no one present. Manigault was
able to reach the attorney at 11:00 a. m. and learned the mediation was cancelled.
Everyone was advised of the cancellation except Manigault. After, some time, Flowoski
finally agreed to re-schedule for the afternoon(CR@32). No settlement was reached at
the conclusion of the mediation (CR@36). A letter was received from the mediator
recommending the case be settled for $18,500.00 (Ex.8) Plaintiff was advised by the
attorney to tell the mediator, if this offer was made at the beginning stages of the
accident, this would be a fair offer.
Trial Case Cause No: Confusion
There are discrepancies on file with the Cause No. Filed by Manigault Pro Se and
The Cause No. filed by Attorney Flowoski. The Cause case No: in reference to
mediation, on record the Cause No. is for the case filed by Flowoski C1228525
(CR@37). The mediator's letter No.C1228321, copy of the Civii Status Conference No.
filed Pro Se, the caption reads Inez Manigault vs. Farmer Insurance Group, et al, the
scheduled conference date July 24, 2013 ( Ex)., but The copy on record have Cause
No. C1228525 filed by Flawoski (CR@31). A Motion to Limme filed by Flawoksi on May
9, 2014 i, No. C1228321,CR@95, Order Granting Motion to withdraw, issued on May 29,
2014, by Flawoski CR@130, and Order Granting Motion to withdraw filed on May 29,
2014 by Flawoski, and signed by Judge Campbell Cox, on May 30, 2014, CR@31 all are
filed in the court at No.C1228321, which not the case at issue and not the case before
this court.
Trial
The trial commenced on May 13th and 14th 2014, with a jury, (RR@1,CR@74).
Appellant was not involved in the jury selection process. Appellant first noticed the jury
was not diversified. Plaintiff expressed concerns to her attorney about the possible
jurors. The attorney stated where the jury members were seated in the courts they had
to be chosen for duty. He left the conference room, he returned then stated, he knew
who he wanted on his jury, and asked if Plaintiff knew the date she returned to work at
Kohl's Department Store after the accident.
A jury of twelve men and women were selected or pre-selected by the attorneys.
(Eleven Caucasian 5 men four women) and one African American (female) CR@ 103. As
the trial progressed, Plaintiff pointed out a sleeping juror to the attorney, who said it
was OK. In a conference room, right before taking the stand a warning came from
Flawoski, not to mention: 1. The statement made to Plaintiff by Henderson after the
accident "I hit you so hard my bumper fell of", CR@30, Dep@22, or the dilatory tactics,
and egregious manner the Defense attorney and representative of the insurance group
behaved during pre-trial. 3. Not to mention anything about the insurance company and
the wrongful manner in which they treated me. The attorney's reason for the warning
was to prevent an appeal. Appellant was not aware another reason existed for
attorney's request, the Defense Motion to Limme, until review of the court records
preparing for this appeal CR@100-101. Plaintiff became aware of both defense and
Plaintiff motion.
The jury heard from four witnesses two for the Appellant, Manigault's daughter
testified of her mother's condition before the August 12, 2011 car accident. The
testimony confirmed her mother frequently, jogged and exercised before the accident,
but after the accident periodically. Manigault's daughter confirmed after the accident
Manigault had trouble during car travels, and performing simple chores (RR@60-80).
Manigault testified she had problems sleeping, playing with the grandchildren and
moving up and down stair steps (RR@97), (Dep@36). Manigault testified regarding the
accident and ensuing treatment received that is already outlined above. Officer Hancock
7
testified, Henderson, failed to control speed, struck Appellant in the rear and was the
sole cause of the accident. The officer testified to a piece missing from Defendant's car
(RR 30&.51). The officer also testified, Appellant reported possible injuries sustained
during the car accident as my neck began to hurt at the scene of the accident. The
Officer wrote a note on her report of Plaintiff's statement. Manigault follow up with a
Physician. (Dep@22 RR@7, RR 16&18). The Defendant testified she was the sole cause
of the accident, was not paying attention, did not see Appellant in front of her stopped
for the red traffic light; did not see the light was red because, she was looking in a
store's parking lot, across the street (Hastings); may have been exceeding the speed
limit of 45 miles per hour, Appellee (Dep @ 10-13, RR 43, 44, 8t 47-48); did not honk
her horn, hit her brakes, or give any warning before the impact with Appellant's car.
Defendant, testified she witnessed Appellant rubbing her neck after the accident
(Dep@13,RR@48).
During examinations of both thai and defense attorney, a series of questions
were asked regarding medical care and cost (RR@81-100). Records obtained from
Nacogdoches Medical Center, the Physical Therapist and Dr. Fowler gave the diagnosis
when referred to the Physical Therapist as Cervical Spine Stenstois (CR@ 57-
64&RR@Ex.3,4,&5, RR@ Ex 5), Manigault pain was eight out often (RR@118).
Appellant testified to the significance of the medical doctors findings regarding injuries
that flowed from the August 12, 2011, car accident to support the already introduced
medical documents. More importantly, critical treatment documents were excluded. In
8
Smith v. Southernwestern Bell the court expressly stated that lay testimony of
causation is appropriate and sufficient if it establishes a sequence of events that
produced a strong logically traceable connection between the event and the condition.
All injuries and expenses resulting from this accident were a direct result of the
negligence of Henderson.
The case was submitted to a jury upon two questions, on Question #1, the jury
found negligence of Defendant caused injury to Manigault. The jury only awarded
damages in the amount of $7,573.63. The jury awarded precisely, the amount
suggested by Defense attorney, James Hughes RR@99-101. The jury awarded
Manigault $1,500 for physical pain and mental anguish suffered in the past, $0, for
physical pain and mental anguish that in reasonable probability she will suffer in the
future, $1,000, for physical impairment she suffered in the past, $0, for physical
impairment that in reasonable probability she will suffer in the future, $5,017.63 for
medical expenses incurred in the past, and $0 for loss of earning capacity sustained in
the past RR 95, 99 & 100.
The triai court signed a final judgment on June 6, 2014, upon the judgment of
the jury's award CR 134-135.
Appeal
Manigault timely filed a Notice of appeal on June 10, 2014, CR 136-137, and
challenges the final judgment on the following grounds:
ISSUES PRESENTED/ENUMERATION OF ERRORS
1. Was the jury selection a fundamental error and prejudicial?
2. The trial court erred in entering judgment because there were legally sufficient
evidence to support the claim in damages in this lawsuit.
3. Is there factually sufficient evidence to support the juror's findings and judgment of
the trial court?
4. There were legally and factually sufficient evidence of the reasonableness and
necessity of medical expenses to prove a reasonable compensation for physical
impairment, loss of earning capacity sustained in the accident for physical pain and
mental anguish physical impairment she suffered in the past; and medical expenses,
and not submitting mental anguish and physical pain as a single submission.
5. Did the lower court commit a reversible error by excluding critical evidence at trial?
The trial court erred by improperly weighing the evidence and not applying controlling
law(s).
6. Did the trial court abuse its discretion and exceeded its power, Due Process?
7. Manigault argues the Ex Parte communication the trial judge, the Defense attorney
and his client address bias, prejudice and affected the juror's decision?
8. Did Plaintiff's attorney engage in dilatory practices to defeat his client, and did the
attorney act appropriately, when his client reported a sleeping jury to him?
9. Did the behavior pre and post trial along with the admission of false evidence
(statements, documents, photographs) by defense attorney inadmissible and speak to
willful disregard for the law?
10. The judge erred by submitting a broad form jury question about the damages in the
case in Question #2:What sum of money, if paid now in cash, would fairly and
reasonably compensate Inez Manigault for her damages, if any, resulting from the
occurrence in question?
11. The judge erred by submitting a broad form jury question about the damages in the
case in Question #2:What sum of money, if paid now In cash, would fairly and
reasonably compensate Inez Manigault for her damages, if any, resulting from the
occurrence in question?
12. Does the ruling of the Court Conflict with the Precedent of the Supreme Court?
10
SUMMARY OF ARGUMENT
The judge should have considered the adverse impact the jury chosen would
have on the case, and invoke the Jury Selection Act of 1968, to provide a fair cross
section of the community. The judgment was procured by undue means. The trial judge
erred in excluding and failing to consider critical evidence established by the Supreme
Court of Texas in Miller v. Wilson and in Brown v. Davis, 125, S. W. 3d 321, 325 (Tex.
2002), Miller v. Wilson, 456S.W. 3d654, 657(Tex. 2000). The weight on testimony in
this case was great. Photographs, presented to the jury to determine the amount of
award, was based on faulty photos that should have been ruled inadmissible. The
photograph was taken by the Defendant's Insurance Company. The judge excluded the
testimony from Plaintiff which would reveal the hidden fact behind what was not seen,
in the photographs to the court. The court allowed the Defense counsel to control the
hearing. He abused his power by engaging into Ex. Parte conversation with the Defense
counsel and his client in plain sight of the jury, this act was prejudicial to Manigault with
the already bias jury selection. The evidence to sway the jury's opinion came from
inflammatory, prejudicial, bias statements from the Defense attorney. He did not
support his argument with valid information, but appealed to the passion of the jury
thus, denying Manigault a fair trial see Amanda Sylvia Thompson v. State of Texas (14-
99-00855). In this case the Information was fundamentally defective as in Manigault's
case. The trial court dismissed Manigault as an outsider, Amazon v. State 487
So.26.8(Fia. 1986), any conversation with the defense are potentially harmful and
11
prejudicial. The same opportunity was not extended to Manigault. Hughes without any
objection from the Flowoski, altered evidence to the date return to work to the
advantage of the defense in order to shed a negative light on Manigault's testimony. In
Strickland, 466, U. S. at687; Young 25 S.W.3d at 712, the trial court's judgment is not
supported by factually sufficient evidence. Manigault explains below there were
an abundant proof, in the form of testimony by fact witnesses, medical records,
documents , some admitted without objection, Defendant's own admission as to
causation that flowed from the underlying accident and the uncontroversial and clear
testimony of Manigault, to show she has serious life long injuries from the accident to
the court. Manigault would have prevailed if the attorney had done what she hired him
to do,
ARGUMENT/CITATION AUTHORIZATQN
1. Was the jury selection fundamentally prejudicial
A claim for negligence, in an automobile accident, involves the same standards
for damages analysis as in any negligent case. The judge signed a judgment upon
substandard Texas precedent. The court should reverse the trial's court's judgment and
remand for a new trial on each element of damages. The Jury Selection and Service Act
of 1968, charges the District Court to create a list of names of prospective jurors from
voters registration list or supplemented from other sources if necessary, to achieve a
fair cross-section of the community to prevent discrimination. The list must include
1,000 names. In the instant case the jurors' selected was not in direct proportion with
12
the 1968 Act. (CR.103 ). The Supreme Court in 487So.26.8 (Fla.1986), enunciated a
new trial based on complained of conduct as a matter of public policy and maintaining
the integrity of the jury trial. The courts found while a party is not entitled to a perfect
trial, they are entitled to a fair trial, see Norman 668 SO; 20 at 1019-1020. Title III of
the CivilRight Act of 1964, prohibits discrimination in public facilities. In Miller v. Wilson
(Tex. 2000) a decision was based on unreasonable determination of the facts in light of
the evidence, as in this case.
2. The trial court erred in entering judgment legally and sufficient evidence;
The Supreme Court determined if the trial court hold that a verdict is not
supported by factually sufficient evidence it should set aside the verdict and if it does
not, it goes against the great weight and preponderance of the evidence that it is
manifestly unjust see Citizens Nat'l Bank in Waxahachie v. Scott 195S.WJd94, 96
(Tex 2006). As in this case, Defense counsel Hughes, in cross examination of witness
Rachael Greer, suggested to the jury Appellant was in an accident in Nacogdoches on
August 12, 2011, she and her mother drove back to Atlanta on August 13, 2011, and
Manigault went directly to work (RR@70&45). Other than the belief and trust in
Attorney Hughes, by this court there is no evidence of record to support the trial court
findings. Manigault provided sufficient evidence to prove the date Plaintiff returned to
work (CR@179). Hughes, also presented both witnesses, and the court a control sheet,
used by payroll, and not Appellant's hourly sheet to convince the court she returned to
work on August 13, 2011 (RR @Ex. 0014), the day after the accident. Both presentation
13
of the erroneous documents, and statements had a profound impact on the court.
Again, without any documented proof he convinced the jury, Manigault quit her job at
Kohl's because she wanted to. Manigault testified during her deposition and during her
testimony, of the strain being placed on her back by the continuous standing for long
hours. The record also prove Manigault, obtained another job with less strain on her
body in November 2012 (Plaintiff's Ex. Dep @8, RR@87). The Defense attorney was
aware these statements were false when it was made. The court determined the
remedy for the improper admission of evidence is a new trial. In re Estate ofAmadt
187. S.WJd 84,88 (Tex App-Beaumont 205, no pet), (citing Atl. Ins Co. y. Boyette, 342
S.W. 2d379, 383 (Tex. Civ. App.-Beaumont 1960 writ refd n.r.e.).
The photos was shown and submitted to the jurors to show the extent of
damages to plaintiff's car. The trial judge exclusion of critical testimony in reference to
why the rear of Appellants car did not crumble when hit from the back destroyed
Plaintiff's testimony. Therefore, because of the trial court admission of the erroneous
evidence, Manigault ask the court to reverse the judgments award and remand the case
for a new trial. More importantly, while Appellant claim the evidence regarding the
claims of Manigault is both legally and factually sufficient, critical evidence, were not
submitted into evidence. The self-management training to mange pain by Physical
therapist and document to show why rear bumper did not crumble. The judge excluded
critical testimony in favor of the Defendant.
3. IS THERE FACTUALLY SUFFICIENT EVIDENCE TO SUPPORT THE JUROR'S
FINDINGS AND JUDGMENT OF THE TRIAL COURT?
14
The evidence does not support the jury's verdict and the trial court findings.
Insufficient evidence supporting the court's findings is so weak to the overwhelming
weight of the evidence that the findings should be set aside Garza v. Alviar, 395 S.W.2d
821, 823 (Tex. 1965). Defense counsel repetitious harping about: 1. Fowler's diagnosis
of delay muscle soreness, 2. Here we are two and a half years or so later and Plaintiff is
asking for award money with no medical treatment. 3. Defense attorney sarcasm
Plaintiffs pain "it is not because I'm getting older" "not because I'm almost 64 years old
now. 4. The false photographs of Plaintiff's car, and his statement to the jury it is the
best evidence the jury can look at to determine the severity of the accident (RR@94).
These comments along with the fact the jury could identify with Defense attorney
Hughes prejudiced the jury and tainted the case. Thus, the jury rendered an unfair
verdict. Other than surgery (Dep pg 34-37), there was noting eise medically the
doctors could do. Also, on the same diagnosis sheet, the attorney was harping from was
Dr. Fowier's examination of Plaintiff states: tightness in the cervical spine, she is
diffusely tender in her neck and back (RR 88-101).
4. Sufficient evidence to prove damages and reasonableness
a. physical pain and mental anguish suffered in the past; Jury awarded
$1,500.00
A jury may arrive at a fair compensation for physical pain based on common
knowledge and their sense of justice, as in Pipgras v. Hart, 832 S.W.2d 360, Tex. App-
Forth Worth 1992 (writ denied), The amount of reasonableness compensation for
15
physical pain is not to be determined by a set formula as demonstrated by defense
counsel, in this case, when he advised the jury to award the amount of $1,500
(RR@101) this decision should be at the jury's discretion. The Court erred in not
submitting mental anguish and physical pain as a single submission. To prove physical
pain and mental anguish one must a.) prove what injury was like at the scene of the
accident b) prove how painful and frightening the ER treatment was c.) d) self-esteem
are sufficient evidence to give a reasonable amount of compensation. The appeals court
modified and recommended to the trial court to calculate interest and enter judgment in
accordance with the modification. The same should be done for Manigault.
b. Physical pain and mental anguish that In reasonable probability she will
suffer in the future: Jury Awarded $0
The Appeals Court determine a court is under duty to reconcile conflicting jury
findings if at all possible. In Signal Oil& Gas Co v. UniversalAil Products, 572, S.W.2d
320 (Tex.1978). The court found the award of medical expenses and denial of
compensation for physical pain and mental anguish was against the great weight and
preponderance of the evidence to be manifest unjust. Like Plaintiff she suffered spinal
injuries the doctor prescribe medication, for and muscle spasm were evident in her case
(RR@P4). In Blair v. Buksn ys521 W.W.2d652 (Tex. Civ. App-SanAntonio 1975,
no.wit). Medical evidence showed that the accident resulted in soft tissue injury causing
a recurrence of back pain. The court reversed the trial court judgment, it concluded in
the situation where medical expenses have been awarded, the jury failure to award
16
damages for physical pain and mental suffering is so against the great weight and
preponderance of evidence. Future pain and suffering evidence can be sufficient if it
show that the person is still suffering up to the time of testimony. Manigault and her
daughter testified to the continued pain and suffering. The jury heard an honest,
genuine testimony about Manigault's decreased quality of life and change in daily
activities, but chose not to believe her, the decrease amount of jogging, traveling and
playing with grandchildren. These are all things the jury had to see beneath the
surface. As in Norris v. Jackson: No. 2-09-265-CV, 2010 WL 4261541 (Tex. App-Forth
Worth Oct. 28 2010 (no pet), Manigault provided records to show she had noticeably
higher blood pressure,(RR@119) felt scared and she was a different person. See also
Service Comp. Internat'l Guerra, 348, S.W.3d 221 (Tex.2011). Plaintiff could not sleep
at night, and sought treatment, medication for anxiety and pain over what happened in
the accident (RR@122&130).
c. Physical impairment she suffered in the past: The jury awarded $1,000
Question two was presented to the jury by the court.
The courts determined in Dawson 102 S.W.3d at 752; see also GoldenArchery
116, S.W.3dat772, It would be appropriate to advise the jury they may consider loss
of enjoyment of life as a factor, when determining awards for physical impairment. Loss
of enjoyment of life encompasses the loss of the injured party's former lifestyle, see
Dawson v. Briggs 107S. W. 3d 739, 752 (Tex App. Fort Worth 2003, no pet) see also
Golden Eagle Archery, 116, S.WJd at 772, when evidence submitted in a case
17
supports, loss of enjoyment of life, it is at best the fact finder consider assessing
damages for physical impairment.
d. Physical impairment that in reasonable probability she will suffer in the
future The jury awarded $ 0
If the jury find that appellant suffered injury as a result of the accident, a Court
is under duty to reconcile conflicting jury findings if at all possible. In Signal Oil & Gas
Co. v. Universal OilProducts, 572 S.W.2d 320 (Tex.1978). As in Timothy! Walsh &
Serena Chan, the cases were reversed when the trial judge erred and failed to reconcile
conflicting jury findings. The court found that it was against the great weight and
preponderance of evidence that the jury did not award any damages for pain in the face
of the testimony as in Appellant's case. Manigault testified her treating sources said she
will never get well, but will be able to manage the pain (RR@5. See also E. M. Kelley,
etai. Appellant v. Atlantic GulfStevedores, Inc., etai, The court found the award of
medical expenses and denial of compensation for physical pain and mental anguish was
against the great weight and preponderance of the evidence as to be manifestly unjust.
e. Medical expenses incurred in the past, The jury awarded $5,017.63
Medical expenses, lost wages are valid elements of personal injuries damages
there were sufficient evidence to prove causation and reasonableness and necessity of
such damages. The best indication of the trauma experience during and after the
accident was the elevated blood pressure (RR@p4). A good indication of how Manigault
felt during the accident was scared and afraid of being hit by oncoming traffic again, my
18
neck jerked forward, and backward, with my foot on the brake the car was out of
control, Plaintiff felt distraught and very disoriented (RR@120, Dep.CR@25-30, Dep. 18-
20). Tex Civ. Prac. & Rem. Code # 41.0105 provides that the recovery of medical or
health expenses incurred is limited to the amount actually paid and is limited to the
amount paid or incurred by or on behalf of Plaintiff. Manigault at the time of the
accident paid the amount in Medical Insurance of $572.00 monthly. Before coming to
trial. A portion of the amount for services rendered after the accident were written of.
The total cost was $7, 603.14, excluding cost for medication. The amount presented to
the court at trial was 5, 217.63 (CR@94). The award for damages is largely within the
jury's discretion. However, they must award something for every element of damage
resulting from an injury see Martin v. Warren Miller Company 629 S.W.2d706, 709 (Tex
App-Tyler 1982, no wit).
f. Loss of earning capacity sustained in the past: The jury awarded $ 0
Tex Civ. Prac & Rem. Code & 18.091 provides that if a plaintiff seek recovery of
loss of earnings or loss of earning capacity evidence to prove the loss must be
presented in the form of a net loss after reduction for income tax payments or unpaid
tax liability according to the federal income tax law (RR@ Ex.P8). The courts found the
fact of injury is acknowledged by the jury, a finding of damage and the jury's failure to
award damages is against the great weight and preponderance of the evidence. The
jury must award something for every element. Thomas v. OilGas building, Inc., 582
S. W.2d873, 881 TexCiv App. Corpus Christi 1979 writ refd n.r.e also see Gallegos at
19
357; Edmonson at 720. The courts in GammarGroup S. WJdat, 2012 WL 1025781, 4,
found the trial court had the discretion to determine whether the proponents has met
its burden. Manigault testified to the amount earned at Kohls to be $8.00 an hour.
Manigault's attorney did not offer any evidence of the applicable tax rate or Medicare
taxes (RR. P4), to the court. Manigault would have prevailed if the attorney had done
what she hired him to do
5. Reversible error/exclusion of critical evidence
The court should reversethe trial court's judgment and remand to the court's for
a new trial. The photographs offered at trial did not show the true damages to Plaintiff's
automobile. To eliminate the unjust judgment, the trial court could have considered any
sworn testimony or other evidence offered during the hearing. Manigault, testified at
trial the judge excluded the testimony. Manigault provided proof to her attorney from
the Chrysler Corporation, to prove true damages (Plaintiffs Ex 9). Based on the Defense
counsels statement "he never saw the information" maybe he did, and maybe he did
not (RR@24), and in accordance to the court records the information was never
introduced into evidence. The information as explained by the expert, but for the steel
rod that was placed in the year, make and model of Manigault's car, during the collision
the rear bumper would have crumbled showing signs of severe damages, and the
impact of how hard Manigault was hit. The rod sustained most of the blows (rear
absorber took most of the impact) (RR@21-32) (Plaintiff's Ex.9). For, these reasons the
case should be reversed and remanded to the trial court for further consideration. When
20
evidence is introduced in a hearing the issue become fact questions for the trial court to
resolve see Gilbert v. Brownnell Electric, 832 S.W.2d 143, 144-45 (Tex. App Tyler1992.
The remedy for the improper admission of evidence is a new trial in re Estate ofAmadt,
187, S.W. 3d 84, 88 (Tex. App-Beaumont 2005, no pet). The court did not review the
entire record. Only signature pages of Plaintiffs and Defendant deposition is in the
court record, no crash record on file from Nacogdoches police department (RR@P1)
Accordingly the case should be remanded.
6. Did the trial court abuse its discretion, exceed its power and deny
Appellant Due Process
The jury witnessed favorable exchange between the judge and Defense team. By
this act, did the Judge make clear to the juror's Henderson, was protected by her
residency. The trial judge erred in requesting the attorney to continue his
representation of Manigault even after a dismissal letter was filed in the courts on May
22, 2014 (CR@ 161). The dismissal letter was ignored by the court. The judge asked
Attorney to draft a judgment consistent with the jury's verdict on May 23, 2014
(CR@164-165). A day after Manigault filed her withdrawal letter. However, the .
attorney's withdrawal letter filed on May 29, 2014 (CR@124) was granted by the trial
judge on May 30, 2014 (CR@131). There is no trial worthy evidence to support the
court's position and a District Court's case that is fraught with errors. Manigault filed a
motion for an enlargement of time on May 23, 2014, to respond to the jury's verdict. It
was denied (CR@172-173). The court will find that a rational tier of fact could have
21
found the essential elements of this case at the trial court level. Appellant maintained
the trial court abused its discretion in denying Plaintiff's request for an enlargement of
time to prepare and respond to the Judgment, and due process. The fundamental idea
of due process is Notice and Opportunity to be heard. In Citizens & Co. Bank v. Maddox;
"the benefit of notice and a hearing before judgment is not a matter of grace, but is
one of right." A judgment is void if the rendering court or tribunal acted in manner
inconsistent with due process of law. The constitution, by prohibiting the act, renders it
void. The Supreme Court caution "a court or tribunal should be cautious in exerting its
inherent power and must comply with the mandates of due process" First Bank of
Marietta v. Hartford Underwriters Insurance Company, 2002 U. S. App. LEXIS 21117, -
25; 2002 FED App. 0356P (6th Cir. 2002); also see In ReAtlantic Pipe Corp.. 304 F.3d
136,143 (1st Cir. 2002). The district court refused to correct the errors made and
therefore, Manigault was denied her rights to due process.
7. Was the ex-parte communication bias or prejudicial
During the course of the two day trial, Judge Cox, held numerous conversations
with the Defense attorney and his client. The conversations were held before court, and
during breaks in. plain view of the juror's. The Supreme Court Rule 20 as authorized by
28 U.S. C. A § 1651(a), 28 USCS Sec. 455, and Marshall v. Jerrico Inc., 446 U.S. 238,
242,100 S. Ctl610, 64LED.2d 182 (1980), states, the neutrality requirement will not
be taken on the basis of an erroneous or distorted conception of the facts or the law.
The law requires not only an impartial judge but also one who appears to the parties
22
and the public to be impartial. Appellant, does not know if the Merits of the case were
discussed. The same courtesy was not extended to Manigault. Henderson, has lived in
Nacogdoches for over thirty years (RR@55). As to the Defense attorney he referred to
him as Jim (RR@ 63). Is the judge impartial and prejudice against people of color, but
also whether reasonable men might question his impartiality, under all circumstances U.
S. v. Gigax, 605 F2d 507 (10th Cir 1979) also see in re Barr, 13, S.W.3d 525, 523 (Tex.
Rev. Trib (1988). A judge shall not engage in conversation, permit or initiate
communication with anyone with interest in a proceeding.
8. Did the attorney engage in dilatory practice
Appellant argues her trial lawyer was ineffective in failing to: 1.Object to jurors
even after Plaintiff voiced her concerns about certain jurors, their distain glare for
Plaintiff even before trial began. 2. Plaintiff witnessed and told the attorney about one
sleeping juror, the attorney said it was alright, in Robert EarlLee v. The State of Texas
248th District of Texas, District Court Harris County, onappeals point of error was
raised of a sleeping juror, the case was remanded back for further proceeding, also see
Roger Merritt Thie Loman v. TheState of Texas (12-2005). 3. Object to false egregious
misleading statements by opposing attorney, which was suspect and misleading to
jurors, for instance, to the cause of Manigault injuries, her own fault, her growing age
(RR) 4. He did not defend the Plaintiff. Even though his contract states handling the
case through appeal process he stated he would not help with the appeal. In Strickland,
466, U.S., at687; Tong25S.W.3dat712, there is a reasonable probability that but for
23
counsel's errors the results of the proceedings could have been different. Manigault
contingency agreement did not limit the scope of the lawyers responsibility to his client
to representation in the trial court. In fact the agreement did not contain any limitations
at all as to the scope of representation. A lawyer is permitted to limit the scope of the
representation of a client only, if the client after consultation consents Tex. District Rule
of Professional Conduct 1.02b. Strickland 466, U S. Young 25 S.W.3d at 712 as in this
case counsel made errors so serious that counsel was not functioning as the counsel
guaranteed the defendant by the sixth amendment fell below standard of
reasonableness. Flawoski, committed plain error.
8.. Did the improper conduct of the board's lawyer (James Hughes, opposing
attorney) during the trial and closing argument prejudice the jury toward
Plaintiff,
The defense attorney deprived Plaintiff of a fair trial. The repeated belittlement
and unfounded accusations in an apparent effort to prejudice the jury (RR@88-100).
Additionally, inherent impermissible appeals to the self interest of the jurors (RR 94,
101, 102). The Supreme Court determined it is every attorney's right to vigorously
defend his client's cause but parties are entitled to a fair trial on the merits of the case,
uninfluenced deadly appeals to passion or prejudice. Defense misconduct is entirely
procedural involving repeated deliberate attempts to obstruct discovery by failing to
comply with Court orders.
10. Trial judge erred by submitting a broad form jury question about the
damages: JURY CHARGE:NO. 2: What sum of money if paid now in cash,
would fairly and reasonably compensate Inez Manigault for her damages, if
any, resulting from the occurrence in question?
24
The Texas Supreme Court, has held that it is error for the trial court to submit a
broad form jury question on damages that include valid and invalid elements of
damages. See Harris City v. Smith, 96 S.W.3d 230, 234, (Tex 2002). Tex R. App P.
44(a)(2). The jury was further instructed, Do not include any amount for any condition
resulting from the failure if any of Plaintiff Inez Manigault to have acted as a person of
ordinary prudence would have done under the same or similar circumstances in caring
for and treating her injuries if any, that resulted from the Occurrence in question:
There were evidence submitted of all 3, 4, 5, admitted without object at trial
along with Manigault's testimony. Even Defense conceded in their testimony and
statements that there was proof from the emergency room, medical doctor private
medical doctor, physical therapist an orthopedic visits, The record proved Manigault
obtained another job with Macy's department store a less strenuous job, Manigault
testified and supplied documents to Plaintiff's attorney of the daily arduous routine
exercises for cervical spine, hip & knee she must undergo every morning. The Defense
advised the jury to give Manigault $0 because she left her job willingly. In spite of
documented proof of job change and continued health care, the jury chose to follow the
advice of the defense attorney. With no consideration of Manigault's choice to perform
these training was taken away on August 12, 2011. (ExlO). In Morgan v. Com. Graphic
Corp, 675S. W. 2d 729, 731, 9 Tex. 1984), lay testimony prove the nexus the causal
nexus between the event sued upon and the plaintiffs injuries must be shown by
competent testimony. In this case at hand as outlined above. Manigault was a healthy,
25
vibrant woman who engaged both her work and play. Before the accident she pursued
her passion, running, playing with her grandchildren and car travels to visit her
grandchildren with energy and enthusiasm. After the accident she never played with her
grandchildren again and unable to run consistently, without experiencing pain. A
worked extremely hard and diligently to protect her health. She will never get well and
there was no other event than the accident, that contributed to her pain. The supreme
court have approved this type of proof as sufficient Morgan v. Compugraphic Corp. 675,
S. W. 2d 729, 733 (Tex 1984).
Does the rulings of the Court conflicts with the precedent of the Supreme
Court?
In Norman 668 So: 20 at 1019-1020, states: to maintain confidence in the
integrity of jury trial while a party is not entitled to a perfect trial, a party is entitled to a
fair trial.
PRAYER
Appellant, Inez Manigault, for the reasons stated above respectfully, ask the
court to reverse the judgment of the trial court and remand the case for a new trial.
Respectfully Submitted,
Inez Malpigault
P. 0. Box 81922
Atlanta, Georgia 30366
(843) 367-0007
26
CERTIFICATE OF SERVICE
I hereby certify that on June 1, 2015, a copy of the foregoing Appellant's Brief was
mailed to Adam B. Allen of White Shaver, PC
Adam B. Allen
White Shaver, PC
205 West Locust Street
Tyler, Texas 75702
Inez-r?r
Manigault (Pro Se Litigant
P. 0. Box 81922
Atlanta, Georgia 30366
(678) 547 - 3914
APPEALANT APPENDIX
CAUSE NO: C1228525
Inez Manigault
Appellant
v.
Jane Thorn-Henderson
Appellee
List of Documents
1. Final Judgment 1
2. Response to Report Reporting injuries to Farmers Ins. Co 2
3. Meeting with representative Brian Wenger of Farmers Ins. Co 1
4. Letter to initiate settlement 3
S.Offer from Brian Wenger Representative of Farmers Ins. Co 3
6. Letter from Plaintiff rejecting Offer 1
7. Copy of Complaint filed Pro Se 2
8. Offer from Carolyn Martindale of Farmers Ins. Co 1
9. Letter from Mediator, Douglas J. McCarver Settlement Recommendation 2
10. Gwinnett County Chrysler Deal- Steel Rod n Bumper 1
11. Physical Therapy Home Training 9
12. Copy of Plaintiff Deposition... 41
13. Copy of Defendant Deposition 24
JANE THORN HENDERSON, MARCH 22, 2013
Page 1
CAUSE NO. C1228525
INEZ MANIGAULT * IN THE DISTRICT COURT
vs
145TH JUDICIAL DISTRICT
JANE THORN HENDERSON NACOGDOCHES COUNTY, TEXAS
ORAL DEPOSITION OF
JANE THORN HENDERSON
Volume 1 of 1
ORAL DEPOSITION OF JANE THORN HENDERSON, produced as
a witness at the instance of the PLAINTIFF, and duly sworn, was
taken in the above styled and numbered cause on the 22nd day of
March, 2013 from approximately 3:17 p.m. to 3:37 p.m., before
Liesa Kliman, Certified Shorthand Reporter in and for the State
o:f Texas, reported by machine shorthand at the offices of
Fairchild, Price, Haley & Smith, located at 1801 North Street,
Nacogdoches, Texas pursuant to the Texas Rules of Civil
Procedure and the provisions stated on the record or attached
hereto.
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JANE THORN HENDERSON, MARCH 22,2013
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Page- 2 | Page 4
l APPEARANCES JANE THORN HENDERSON,
2 FOR THE PLAINTIFF:
having been firsi duly sworn, teslified as follows:
BY: W. WADE FLASOWSKI
EXAMINATION
3 Fairchild. Price. Haley & Smith
1801 North Street BY MR. FLASOWSKI:
4 P.O. Box 631668 Q Please state your name for the record, ma'am.
Nacogdoches, Texas 75963-1668 A Jane Thorn Henderson.
5 Telephone: 936.569.2327
6
Q Ms. Henderson, my name is Wade Flasowski and you
7 FOR THE DEFENDANT: 8 understand that I represent the plaintiff, Inez. Manigault, in
BY: MR. JAMES E. HUGHES 9 this matter?
Herald Farish & Hughes 10 A Yes. sir. I sure do.
3400 W. Marshall. Suite 402
11 O Okay. And you understand what we're here to talk
Longview. Texas 75604
Telephone: 903.297.7681 12 ahout today is a motor vehicle accident that occurred on or
10 13 ahout August 12th, 2011?
11
14 A Yes. sir.
12
15 Q Okay. And am I correct that you were involved in
13
14 16 that motor vehicle accident?
15 17 A' Yes. sir.
16
18 Q Okay. And I assume you've had an opportunity to meet
17
19 with your attorney for a hrief period of time in preparation
18
19 20 for this deposition?
20 21 A Yes. sir.
21 22 Q Okay. And you understand that this deposition -- you
22
23 have been sworn under oath and that your testimony can be
23
24
24 presented to a judge or a jury in this case?
25 25 A Yes. sir.
Page : Page E
INDEX 1 Q Okay. And you're here to tell the truth, ma'am?
PAGE 2 A Yes, sir, 1 sure am.
Appearances 2 3 Q Great. Ma'am, where do you live?
WITNESS 4 A I live on 2000 - 2005 Timberlake Street,
JANE THORN HENDERSON
5 Nacogdoches, Texas 75961.
6 Q How long have you lived there?
EXAMINATION
7 A I've lived there, I want to say, about six years.
BY MR. FLASOWSKI 4
8 Q You were living there at the time of this accident?
9 A Yes, sir.
SIGNATURE AND CHANGES 21
9 REPORTER'S CERTIFICATE 22 10 Q Who do you live with?
10 11 A I don't live with nobody.
11 12 Q By yourself?
12 13 A By myself. My son just moved in.
13 14 Q Okay. At the time of the accident, were you living
14 15 with anybody?
15
16 A No, sir.
16
17 Q And you mentioned a son. You understand that this
17
18 case might proceed to a trial here in Nacogdoches County?
18
19 A Yes, sir.
19
20 Q Okay. And the reason I'm going to ask this question
20
21 is not to pry into your personal life but just to make sure
21
22
22 that I don't have any of your family members or close friends
23 23 on my jury in this case. You understand that?
24 24 A Yes, sir.
25 25 Q So let me ask you, do you have any close relatives or
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Page 6 Page 8
1 friends in Nacogdoches County? 1 A (The witness nods.)
2 A Yes. sir. I've gol some family members and some 2 Q Is that a yes?
3 friends. 3 A Al Rudy's. Yes. sir.
4 Q Let's start with family members. 4
Q And for the ladies and gentlemen of the jury that
5 A Okay. William Thorn. don't know ~ I think most people in Nacogdoches know Rudy's,
5
6 Q Okay. 6 but that's like a convenience store, correct?
7 A Okay. There is Ann Thom, that's his wife. 7 A Yes. sir.
8 Q Any relatives that don't have the last name Thorn or 8 Q Okay. And'at Rudy's. 1 guess you were, you know,
9 Henderson? 9 gassing up or getting a snack or something?
10 A My son is Reid. R-E-I-D. 10 A I was getting a soda.
11 Q What's his last name? 11 Q Okay. Great. How long a break do you think you
12 A Leonard Dean Reid. He's my ex-husband. 12 took?
13 Q Any -- any relatives with the last name Henderson? 13 A Not thai - not that long of a break.
14 A They all.live in Lufkin. It's my husband thatjusl 14 Q Okay.
15 passed away. 15 A Because I had to gel - 1was ready to gel this house
16 Q Do you — 16 done and get il through, get it over with.
17 A His family. 17 Q How long had you been working on that house that day?
18 Q Stanley? 18 A Oh. it was like maybe about five hours. It was late
19 A Family. 19 that afternoon and what —yeah, about five hours.
20 Q Family. Okay. Do you live - do you have a — 20 Q Okay. And would you agree that the accident happened
21 attend a church here in Nacogdoches? 21 somewhere pretty —in the late evening on August 12th. being
22 A No. sir. 22 between 8:30 and maybe even 10:00 at night?
23 Q Are you a member of any organizations or groups? 23 A 1 think so. 1 think so. Because it was after dark.
24 A No, sir. 24 Q Am I correct that you were headed south on North
25 Q What do you do for a living? 25 Street when the accident occurred?
Page 7 Page 9
1 A i am self-employed. 1 A I was ~ I want to call thai south.
2 Q How are you self-employed? 2 0 Okay. Yeah. And, in other words, you were headed
3 A I clean houses. 1 paint. 1do it all. 3 ' towards Stephen F. Austin?
4 Q Do you have a card? 4 A Yes, sir.
5 A No. sir. No. sir. Thai's what 1was doing. That's 5 Q Okay. And you were coming from the Rudy's that is up
6 what 1was doing. 6 kind of near Nacogdoches Medical Center?
7 Q Okay. And, ma'am, can you tell me what happened in 7 A Yes, sir.
8 the accident that occurred on August 12,2011? 8 Q Okay. And do you remember how fast you were
9 A Okay. 1 was —I was at work at 217 Travis Street. 9 traveling when the accident occurred?
10 1- one of my houses that 1do - one of my houses that I do. 10 A 1knew 1was going a little bit fast, but 1was '
11 they've gol rent property. And somebody was moving in that 11 not —I did not look at my speedometer.
12 weekend and she wanted me lo clean it al the spur of the 12 Q Okay. If the accident report were to say that the
13 moment. And 1 was finishing up one job and then 1was at that 13 speed limit at that location was 45 miles per hour, would you
14 house cleaning ii late that afternoon. 14 disagree with that?
15 Q Okay. 15 A I don't remember how -
16 A In that lime of the night. So 1slopped for a little 16 0 I guess my question —
17 break, went to ihe store, and then 1 was on my way back to work 17 A - what that speed limit was. Thai's the whole bit.
18 and 1 looked over at Hastings parking lot and I hit her in the 18 Q I guess my question is you wouldn't have any reason
19 back end of her car. 19 to dispute that?
20 0 Okay. Let me back up just a little bit. Okay. My 20 A No, sir, 1 would not.
21 understanding that you had been working cleaning a hoase that 21 Q Okay. And so if - would it be safe to say that you
22 evening? 22 weregoing somewhere around45 milesper hour or close to the
23 A Uh-huh. Yes. sir. 23 speed limit when the accident occurred?
24 Q Okay. And - and you had decided to take a break and 24 A Yes, sir.
25 you went to a store? 25 Q Okay. You didn't have an opportunity to hit your
t
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Page 10 Page 12
1 brakes before the accident occurred? l Q Certainly. 1understand that. And after the impact
2 A No. sir.because i! happened so fast. 1waslooking 2 occurred -or let me ask you this. How would you describe the
3 in Hastings parking lot like this driving and il --ii happened 3 impact?
4 that fast. 1 hit her. 4 A How do 1describe it? My airbag didn't come out. so
5 Q Okay. 1mean. I just hit her.
5
6 A And that's - I mean - 6 Q Okay. And what I'm getting at is, you didn't have an
7 Q And so what would you say was the cause of the 7 opportunity to hit your brakes or slow down in any way before
S accident? 8 this impact occurred, correct?
Q
A Probably me not paying no attention. 9 A I did not see — no, sir. 1 did not see her car.
10 Q You wouldagree with me that there wasnothingthat 10 Q Would you describe the impact then as being a hard
11 Ms. Manigault, my client, could have done to avoid the 11 impact?
12 accident? 12 A Kind of. sort of.
13 A Explain that. 13 Q Okay. And if Ms. Manigault had described this impact
14 Q Well, would.vim agree with me that Ms. Manigault was 14 as a violent or a hard impact, that wouldn't be incorrect from
15 stopped at a red light? 15 your view?
16 A Yes. sir. 16 A It was kind of. son of impact. 1mean, it's just
17 Q When the accidentoccurred she was —she was 17 like hitting somebody .in Ihe rear end and their car moved
18 stopped? 18 certain inches or certain feet or whatever.
19 A Yes. sir. because when 1hit her - when 1hit her, 1 19 Q And can you tell me what happened after the impact
20 saw the light was red. 20 occurred?
21 Q Okay. And, ma'am, I assume from your testimony as 21 A After Ihe impact occurred, I unbuckled my seat bell
22 well that you are accepting responsibility for this accident? 22 and I goi out and 1 was going over there to see if she was
23 A Yes. sir. 1sure am. Il was my fault. 23 all right. And she got up out of her car and she said that she
24 Q Yes, ma'am. And can you tell me what happened to the 24 was all right.
25 vehicles after the impact? 25 Q Okay. Anything else said between the two of you
Page 11 Page 13
1 A After the impact? Okay. She was —she was in the 1 before you left the scene?
2 middle of the road when 1hit her and 1was - 1 put on my 2 A 1- 1asked her —she was sitting in her car and I
3 brakes and 1just stopped right there. 1 mean, it's like I — 3 asked her if she was still all right. And she was rubbing
4 1can't really tell you how far we were apart. 4 her - her neck. And she said that her neck was getting a
5 Q Okay. 5 liltle bit sore. And 1politely told her that if you think
6 A But 1 know she was like up underneath the red light. 6 you're hurt, there is the hospital right down there. Medical
7
0 And so just to clarify, when you —when you struck 7 Center, and you need to go get checked out.
8 Ms. Manigault's vehicle, she wasn't stopped out in the middle 8 Q And the medical —how did she respond?
9 of the intersection? 9 A She said, well —she said. "1 might. Again, 1 might
10 A No. sir. 10 not." 1said, "Well, if you think you're hurt, then you need
11 Q She was stopped behind the line that she should have 11 lo have il checked out."
12 been stopped behind? 12 Q Okay. And so you would agree that if she had went —
13 A Yes. sir. 13 gone to the emergency room, that it would have been reasonable
14 Q And the impact caused her vehicle to be pushed 14 at that point in time for her to go and get checked out and
15 forward out to the intersection and underneath where the red 15 receive some medical treatment?
16 light was? 16 A She needs to.
17 A Yes. sir. 17 Q Okay. And so in this case you understand that she
18 Q And you actually, after the impact, looked up and saw 18 did in fact go to the emergency room and receive some medical
19 that there was a red light? 19 treatment?
20 A Yes. sir. 20 A Well, 1was hoping she did. and then 1found out that
21 Q And it would have been your responsibility to stop at 21 she did.
22 that red light and not come into contact with Ms. Manigault's 22 Q Okay.
23 vehicle, correct? 23 A And I'm glad she did.
24 A Yes. sir. If 1 was paying more attention, then 1 24 Q And Medical Center —from where the accident
25 would have not hit her. 25 occurred, can you give the ladies and gentlemen of the jury an
L.
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5 (Pages 14 to 17)
Page 14
Page 16
idea of how far away the Nacogdoches Medical Center is? and I paid my ticket.
A I'm noi good at distance. I have no idea because
Q Are there any other witnesses to the accident that
where Hastings is, Iwarn to say it's like one, two red lights you remember their names?
from Medical Center. I can't give you the distance. A No, sir.
Q Well, it's relativelyclose?
0 Do you remember anyone else inthe accident coming up
6 A It's very close.
and speaking with you?
7
Q You could get to itinaminute orso from Hastings A No. sir.
8 if youdidn't catch any red lights?
Q Do you remember anyone else coming and speaking with
9
A Well, probably about five, ten minutes. 9 . Ms. Manigault, other than yourself?
10 1} Okay. 10 A No, sir.
tl A It's very close. 11
Q You haven'thadanycontact with my client since the
12
0 Theaccident happened in front of Hastings? 12 date of this accident?
13 A Yes, sir. 13 A No, sir. I sure haven't.
14 Q On North Street in Nacogdoches? 14
Q Whatkind of property damage was there to your
15 A Yes. sir. ' 15 vehicle?
16
Q And Medical Center is - 16 A I'vegot a hole in my fronl bumper.
17
A Like about five - five, six. seven, ten minutes 17 Q Did the bumper fall off?
18 away. 18 A No. sir.
19 Q Okay. 19. 0 No bumpers fell off -
2 0 A Something like thai. It's according on how fast - 20 A No, sir.
21 if you go the speed limit and all that stuff. 21 0 -- that you can recall?
22
Q Okay. Do you remember anything else being said by 22 A No, sir.
23
Ms. Manigault atthe scene oftheaccident toyou ortoanyone 23 Q Didyou - did you haveyour vehicle repaired?
24 eLse? 24 A No. sir. I have not.
25 A Not that I know of. 25 Q And is your vehicle, as it sits today,in the sameor
Page 15 Page 17
Q Did yousayanything else to Ms.Manigault otherthan 1 similar condition as it was —
what we've described that you can recall? 2 A Yes. sir.
3 A No, sir.. 3 Q Let me finish my - same or similar condition as it
4
Q Did the -- someone with the Nacogdoches Police 4 was —
5 Department come out to the scene of the accident? 5 A I'm sorry.
6 A Two of them. 6 Q - at the time of the accident?
7 Q Okay. 7 A Yes. sir.
8 A Male and female. 8 Q And so that holethat wascaused by this accident is
9 Q Okay. Do you remember their names? 9 still present in your vehicle?
10 A No, sir, I sure don't. 10 A Yes. sir.
11 Q Did you have an opportunity to provide to them what 11 Q Doyou rememberwhat,if any, kind of damage wasdone
12 happened in the accident? 12 to Ms. Manigault's vehicle?
13 A Yes, sir. And I providedthem my insuranceand mv 13 A 1 did nol see a scratch on il.
14 driver's license. 14 Q Did Ms. Manigault appear to you to be - to be hurt
15 Q Am I correct that you were issued a citationby the 15 or injured when you saw her? In other words, did you see any
16 Nacogdoches Police Department? 16 changes in her physical condition, complexion, or was - or the
17 A Yes, sir. 17 way that she was acting that would cause a concern to you?
18 Q Okay. And that citation was for failure to control 18 A No. sir. The only time is when she was silling in
19 speed? 19 her car rubbing her neck,and that'sthe only time.
20 A Yes, sir. 20 Q Ma'am, have you had any problems with the law?
21 Q Okay. And what was the outcome of that citation? 21 A No, sir.
22 A I've already paid it. 22 Q Never been arrested?
23 Q Okay. So you pled either no contest or guilty, one 23 A No, sir.
24 of the other, and paid it? 24 Q Okay. And I don't want to offend you by that, but I
25 A All I had lo do wasjust do the judge and do my fine 25 just have to ask that question.
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6 (Pages 18 to 21)
Page 18 Page 2 0
A No, sir. You're not offending me. 1 that you didn't understand?
0 Okay. Never provided adeposition before inany 2 A No. sir.
other case?
3 Q Were there anyanswers thatyou' rethinking back on
A No. sir. 4 right nowthatyouthink you'd liketo further explain or
Q Never been involvedin any other car accidents? 5 modify at this point in time?
6- A Huh-uh. No, sir. 6 A No. sir.
7
Q Have you received any traffic citations other than 7
MR. FLASOWSKI: Pass the witness.
8 theone that we've discussed in thelast four years? 8 MR. HUGHES: Reserve questions.
9 A One for speeding. 9 (End of Proceedings.)
10
Q What was - where were you given that ticket? 10
11 A Around Ihe loop. 11
12 Q Here in Nacogdoches County? 12
13 A Yes. sir. 13
14 Q And how fast wereyou going? 14
15 A I was- let me see. I wantto say like65 in a 55. 15
16 0 Did you pay that ticket as well? 16
17 A Yes. sir. I sure did. 17
18
Q Have youeverhad yourlicense suspended or revoked? 18
19 A No. sir. 19
20 Q You have a valid Texas driver's licease? 20
21 A Yes. sir. 21
22
Q Weather conditions on the night in question was 22
23 clear; am I correct? 23
24 A II was clear. 24
25 Q Other than it being at night? 25
Page 19 Page 21
A Yes. sir. CHANGES AND SIGNATURE
0 Ma'am, doyou thinkyou mayhave been speeding when PAGE LINE CHANGE REASON
this accident occurred?
A I might be a little bit. but I'm not for sure.
0 Ma'am, youdon't have any medical expertise, do you?
A What do you mean?
Q Well, have you ~ you're not a doctor,are you?
8 A No. sir
9 0 Okay. You didn't goto school for nursing or
10 anything of that sort?
11 A I used to be a certified nurse aide.
12 Q Certified nurse aide? I. JANE THORN HENDERSON, haw read Iheforegoing
depositionand herebyaffix my signature thai same is true and
13 A Yes. sir,
eoiTeel. except as noted above
14 Q What is that?
JANE THORN HENDERSON
15 A It is —a nurse aide is taking care of elderly
16 people, likein nursing home or in the hospital or something THE STATE OF TEXAS
17 like thai. COUNTY OF NACOGDOCHES
tM'ore ine. on this day, personallyappearedJANE THORN
18 Q Have you spokenaboutthis accident with anyone since
HENDERSON, known lo me (or provedto me underoalh)to be the
19 the dateof the accident, other than your attorney? personwhosenameis subscribed to the foregoing instrument and
20 A No. sir. acknowledged lo me that theyexecutedthe same for the purposes
and consideration therein expressed.
21 Q Ma'am,haveI been kind and courteous to youtoday?
Givenundermy handand sea)of officethis day of
2 ° A Yes. sir, you sure have.
. 2013.
23 y Have you understood my questions?
24 A Yes. sir, I have. Notary Public in and for the
Stale of Texas
25 y Doyouhaveany questions - werethere any questions
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7 (Pages 22 to 24)
Page 22 Page 24
CAUSE NO. C1228525 1
FURTHER CERTIFICATION UNDER RULE 203 TRCP
INEZMANIGAULT * IN THE DISTRICT COURT 2 The original deposition was/was not returned to the
3 deposition officeron __;
VS. I45TH JUDICIAL DISTRICT 4
Ifreturned, the attached Changes and Signature page
5 contains any changes and ihe reasons therefor:
JANE THORN HENDERSON * NACOGDOCHES COUNTY. TEXAS 6 If returned, the original deposilion wasdelivered to
REPORTER'S CERTIFICATION 7
., Custodial Attorney;
DEPOSITION OF JANE THORN HENDERSON 8 That the deposition was delivered in accordance with Rule
MARCH 22.2013 9 203.3 and that a copy of this certificate was served on all
I.Liesa Kliman. Certified Shorthand Reporter in andfor 10 parties shown herein and filed with the Clerk.
9 the State ofTexas, hereby certify tothe following: 11 Certified to by me this day of
10
That the witness. JANE THORN HENDERSON, was duly sworn by 12
_. 2013.
11 the officer and that ihe transcript ofthe oral deposition isa 13
14
12 truerecordof thetestimony givenby the witness:
15
• 13 Thaithe deposition transcript wassubmitted on Liesa Kliman, CSR#2248
14
2013. to the wilness or lo theattorney 1205 Main Street
15 lor the wilness for examination, signature and return lome by Garland, Texas 75040
16 . 2013. Telephone: 972.494.2000
17
That Ihe amount of time used byeach party at the Expiralion Dale: 12/31/13
18 deposition is as follows: Firm Registration #216
19
W. WADE FLASOWSKI - 00:2(KHOURS:M1NUTI-.S)
20
JAMES E. HUGHES - 00:00(HOURS:MINUTES)
|20
21 ThatS , is thedeposition
i21
22 officer's charges tothe PLAINTIFF forpreparing the original
|22
2 3 deposition transcript and anycopiesof exhibits:
24 That pursuant to the information given to thedeposition i23
I24
25 officer at dielime saidtestimony was taken, thefollowing I2 5
Page 2 3
1 includescounsel for all parties of record:
2 W. WADE FLASOWSKI, Attorney for Plaintiff;
3 JAMES E. HUGHES, Attorneyfor Defendant.
4 I further certify that I am neither counsel for, related
5 lo, noremployed byany of the parties or attorneys in the
6 action in which this proceeding was taken, and further that I
7 am not financially or otherwise interested in the outcome of
8 ihe action.
9 Furthercertification requirements pursuantto Rule 203 or
10 TRCP will he certified to after they have occurred.
11 Certified to by me this day of .
12 2013.
13
14
IS
IS Liesa Kli man, CSR#2248
1205 Main Street
17 Garland, Texas 57040
Telephone: 972.494.2000
Expiration Date: 12/31/13
Firm Registration #216
19
20
21
22
23
24
25
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JANE THORN HENDERSON, MARCH 22, 2 013
Page 1
A B citation 15:15,18 17:11 exhibits 22:23
accepting 10:22 back 7:17,19,20 15:21 dark 8:23 expertise 19:5
accident 4:12,16 20:3 citations 18:7 date 16:12 19:19 Expiration 23:18
5:8,14 7:8 8:20,25 belt 12:21 Civil 1:23 23:18 24:17 24:17
9:9,12,23 10:1,8 bit 7:20 9:10,17 clarify 11:7 day 1:188:1721:20 explain 10:13 20:4
10:12,17,22 13:24 13:5 19:4 clean 7:3,12 21:22 23:11 24:11 expressed 21:22
14:12,23 15:5,12 Box 2:4 cleaning 7:14,21 Dean 6:12 ex-husband 6:12
16:2,5,12 17:6,8 brakes 10:1 11:3 clear 18:23,24 decided 7:24
19:3,18,19 12:7 Clerk 24:10 Defendant 2:7 23:3
accidents 18:5 client 10:11 16:11 delivered 24:6,8 F9:3
break 7:17,24 8:11
acknowledged 8:13 close 5:22,25 9:22 Department 15:5 fact 13:18
21:21 brief4:19 14:5,6,11 15:16 failure 15:18
acting 17:17 come 11:22 12:4 deposition 1:8,16 Fairchild 1:22 2:3
bumper 16:16,17
15:5 4:20,22 18:2 fall 16:17
action 23:6,8 bumpers 16:19
affix 21:15 coming 9:5 16:5,8 21:15 22:6,11,13 family 5:22 6:2,4
afternoon 7:14 complexion 17:16 22:18,21,23,24 6:17,19,20
C2:l concern 17:17 24:2,3,6,8 far 11:4 14:1
8:19
agree 8:20 10:10,14 call 9:1 condition 17:1,3,16 describe 12:2,4,10 Farish 2:8
13:12 car 7:19 12:9,17,23 conditions 18:22 described 12:13 fast 9:8,10 10:2,4
13:2 17:19 18:5 consideration 15:2 14:20 18:14
aide 19:11,12,15
airbag 12:4 card 7:4 . 21:22 disagree 9:14 fault 10:23
care 19:15 contact 11:22 16:11 discussed 18:8 feet 12:18
amount 22.17
case4:24 5:18,23 contains 24:5 dispute 9:19 fell 16:19
Ann 6:7
13:17 18:3 contest 15:23 distance 14:2,4 female 15:8
answers 20:3
catch 14:8 control 15:18 DISTRICT 1:2,3 filed 24:10
anybody 5:15
apart 11:4 cause 1:1,18 10:7 convenience 8:6 22:2,3 financially 23:7
17:17 22:1 copies 22:23 doctor 19:7 fine 15:25
appear 17:14
caused 11:14 17:8 copy 24:9 doing 7:5,6 finish 17:3
Appearances 3:3
appeared 21:20 Center 9:6 13:7,24 correct 4:15 8:6,24 driver's 15:14 finishing 7:13
14:1,4,16 11:23 12:8 15:15 18:20 Firm 23:18 24:17
approximately
certain 12:18,18 18:23 21:16 driving 10:3 first 4:2
1:19
Certainly 12:1 counsel 23:1,4 duly 1:17 4:2 22:10 five 8:18,19 14:9,17
arrested 17:22
certificate 3:9 24:9 County 1:45:18 14:17
asked 13:2,3
assume 4:18 10:21 certification 22:5" 6:1 18:12 21:19 ",.'"e _'.. Flasowski 2:2 3:6
23:9 24:1 22:4 E 2:1,1,7 3:1 22:20 4:4,7 20:7 22:19
attached 1:24 24:4
certified 1:20 19:11 COURT 1:2 22:2 23:3 23:2
attend 6:21
19:12 22:8 23:10 courteous 19:21 either 15:23 following 22:9,25
attention 10:9
23:11 24:11 CSR#2248 23:1'6 elderly 19:15 follows 4:2 22:18
11:24
emergency 13:13 foregoing 21:15,21
attorney 4:19 19:19 certify 22:9 23:4 24:15
Custodial 24:7 13:18 forward 11:15
22:14 23:2,3 24:7 CHANGE 21:2
changes 3:8 17:16 02285251:1 22:1 employed 23:5 found 13:20
attorneys 23:5
21:124:4,5 evening 7:22 8:21 four 18:8
August4:13 7:8
charges 22:22 D examination 3:6 friends 5:22 6:1,3
8:21
D31 4:3 22:15 front 14:12 16:16
Austin 9:3 checked 13:7,11,14
damage 16.14 executed 21:21 further 20:4 23:4,6
avoid 10:11 church 6:21
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Page 2
23:9 24:1 home 19:16 jury 4:24 5:23 8:4 lot 7:18 10:3 18:1221:1922:4
hoping 13:20 13:25 Lufkin 6:14 name 4:5,7 6:8,11
hospital 13:6 19:16 6:13 21:21
Garland 23:17 hour 9:13,22 K M names 15:9 16:3
24:16 hours 8:18,19 kind 9:6 12:12,16 machine 1:21 near 9:6
gassing 8:9 house 7:14,21 8:15 16:14 17:11 19:21 Main 23:16 24:15 neck 13:4,4 17:19
gentlemen 8:4 8:17 Kliman 1:20 22:8 Male 15:8 need 13:7,10
13:25 houses 7:3,10,10 23:16 24:15 Manigault 1:2 4:8 needs 13:16
getting 8:9,10 12:6 Hughes 2:7,8 20:8 knew 9:10 10:11,14 12:13 neither 23:4
13:4 22:20 23:3 know 8:5,5,8 11:6 14:23 15:1 16:9 Never 17:22 18:2,5
give 13:25 14:4 Huh-uh 18:6 14:25 17:14 22:2 night 7:16 8:22
given 18:10 21:22 hurt 13:6,10 17:14 known 21:20 Manigault's 11:8 18:22,25
22:12,24 husband 6:14 11:22 17:12 nods 8:1
glad 13:23 March 1:19 22:7 North 1:22 2:3 8:24
go 13:7,14,18 14:21 I ladies 8:4 13:25 Marshall 2:8 14:14
19:9 idea 14:1,2 late 7:14 8:18,21 matter 4:9 Notary 21:24
going 5:20 9:10,22 impact 10:25 11:1 law 17:20 ma'am4:5 5.1,3 noted 21:16
12:22 18:14 11:14,18 12:1,3,8 left 13:1 7:7 10:21,24 numbered 1:18
good 14:2 12:10,11,13,14,16 Leonard 6:12 17:20 19:2,5,21 nurse 19:11,12,15
Great 5:3 8:11 12:19,21 Let's 6:4 mean 10:6 11:3 nursing 19:9,16
groups 6:23 inches 12:18 license 15:14 18:18 12:5,16 19:6
guess 8:8 9:16,18 includes 23:1 18:20 medical 9:6 13:6,8 O
guilty 15:23 incorrect 12:14 Liesa 1:20 22:8 13:15,18,24 14:1 oath 4:23
Inez 1:2 4:8 22:2 23:16 24:15 14:4,16 19:5 oath)to21:20
H information 22:24 life 5:21 meet 4:18 occurred 4:12 7:8
Haley 1:22 2:3 injured 17:15 light 10:15,20 11:6 member 6:23 8:25 9:9,23 10:1
hand 21:22 instance 1:17 11:16,19,22 members 5:22 6:2 10:17 12:2,8,20
happened 7:7 8:20 instrument 21:21 lights 14:3,8 6:4 12:21 13:25 19:3
10:2,3,24 12:19 insurance 15:13 limit 9:13,17,23 mentioned 5:17 23:10
14:12 15:12 interested 23:7 14:21 middle 11:2,8 offend 17:24
hard 12:10,14 intersection 11:9 line 11:11 21:2 miles 9:13,22 offending 18:1
Hastings 7:18 10:3 11:15 little 7:16,20 9:10 minute 14:7 office 21:22
14:3,7,12 involved 4:15 18:5 13:5 19:4 minutes 14:9,17 officer 22:11,25
headed 8:24 9:2 issued 15:15 live 5:3,4,10,11 modify 20:5 24:3
Henderson 1:4,8 6:14,20 moment 7:13 officer's 22:22
1:16 3:4 4:1,6,7 lived 5:6,7 motor 4:12,16 offices 1:21
6:9,13 21:15,17 JAMES 2:7 22:20 living 5:8,14 6:25 moved 5:13 12:17 Oh 8:18
21:20 22:4,6,10 23:3 located 1:22 moving 7:11 Okay 4:11,15,18,22
Herald 2:8 Jane 1:4,8,16 3:4 location 9:13 _ 5:1,14,20 6:5,6,7
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10:19,19 11:2,25 job 7:13 look 9:11 Nacogdoches 1:4 8:20 9:2,5,8,12,21
12:5,7 - judge 4:24 15:25 looked 7:18 11:18 1:23 2:4 5:5,18 9:25 10:5,21 11:1
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hole 16:16 17:8 22:3 loop 18:11 14:1,14 15:4,16 13:12,17,22 14:10
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Page 3
14:19,22 15:7,9 Procedure 1:24 14:8 scratch 17:13 14:21 15:19
15:18,21,23 17:24 proceed 5:18 Registration 23:18 seal 21:22 speeding 18:9 19:2
18:2 19:9 proceeding 23:6 24:17 seat 12:21 speedometer 9:11
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9:25 12:7 15:11 produced 1:16 related 23:4 17:15 18:15 spur 7:12
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24:6 provide 15:11 remember 9:8,15 shorthand 1:20,21 21:24 22:9
outcome 15:21 23:7 provided 15:13 14:22 15:9 16:3,5 22:8 stated 1:24
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paint 7:3 pursuant 1:23 Reporter 1:20 22:8 5:2,9,16,19,24 6:2 store 7:17,25 8:6
parking 7:18 10:3 22:24 23:9 REPORTER'S 3:9 6:22,24 7:5,5,23 Street 1:22 2:3 5:4
parties 23:1,5 pushed 11:14 22:5 8:3,7 9:4,7,20,24 7:9 8:25 14:14
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people 8:5 19:16 9:18 17:25 18:22 return 22.15 17:7,10,18,21,23 Suite 2:8
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Page 4
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INEZ MANIGAULT, MARCH 22,2013
Page 1
CAUSE NO. C1228525
INEZ MANIGAULT * IN THE DISTRICT COURT
VS . * 145TH JUDICIAL DISTRICT
JANE THORN HENDERSON * NACOGDOCHES COUNTY, TEXAS
ORAL DEPOSITION OF
INEZ MANIGAULT
Volume 1 o f 1
ORAL DEPOSITION OF INEZ MANIGAULT, produced as a
witness at the instance of the DEFENDANT, and duly sworn, was
taken in the above styled and numbered cause on the 22nd day of
March, 2013 from approximately 2:14 p.m. to 3:04 p.m., before
Liesa Kliman, Certified Shorthand Reporter in and for the State
of Texas, reported by machine shorthand at the offices of
Fairchild, Price, Haley & Smith, located at 1801 North Street,
Nacogdoches, Texas pursuant to the Texas Rules of Civil
Procedure and the provisions stated on the record or attached
hereto.
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Page 2 Page 4
1 APPEARANCES l INEZ MANIGAULT
2 FOR THE PLAINTIFF: 2 having been first duly sworn, testified as follows:
BY: W. WADE FLASOWSKI 3 EXAMINATION
3 Fairchild, Price, Haley & Smith
4 BY MR. HUGHES:
1801 North Street
4 P.O. Box 631668 5 Q Would you state your name please, ma'am.
Nacogdoches, Texas 75963-1668 6 A It's Inez Manigault.
5 Telephone: 936.569.2327 7 Q Ms. Manigault, my name is Jim Hughes and I believe we
6
8 just met for the first time a little while before your
7 FOR THE DEFENDANT:
BY: MR. JAMES E. HUGHES 9 deposition started today. Is that correct?
8 Herald Farish & Hughes 10 A That's correct.
3400 W. Marshall, Suite 402 11 Q I'm the attorney who represents Jane Henderson in the
9 Longview, Texas 75604
12 lawsuit that's been filed against her resulting from your
Telephone: 903.297.7681
10 13 automobile accident back in August of 2011. Do you understand
11 14 that?
12 15 A Yes.
13
16 Q Have you ever given a deposition before today?
14
17 A No.
15
16 18 Q Have you had the opportunity to visit with your
17 19 lawyer about your deposition?
18
20 A Today?
19
20
21 Q Yes.
21 22 A We briefly spoke.
22 23 Q Okay. You feel comfortable that you understand what
23
24 we're doing here?
24
25 A Yes.
25
Page 3 Page 5
1 INDEX 1 Q Okay. Just a couple of things to remind you about
2 PAGE 2 that I'm sure you've already heard from your lawyer. First of
3 Appearances 2 3 all, you understand that the law requires you to tell the truth
4 WITNESS 4 in your deposition today?
INEZ MANIGAULT 5 A Correct.
5
6 Q It's important that you continue as you were doing
6 EXAMINATION
7 giving verbal responses because shakes of the head, nods of the
BY MR. HUGHES 4
8 head, things like that, when it's transcribed on paper can
7
9 sometimes be confusing later on. Okay?
8 SIGNATURE AND CHANGES 44
10 A Yes.
9 REPORTER'S CERTIFICATE 45
10
11 Q If I remind you to give a verbal answer today, don't
11 12 , think I'm fussing at you. That's just something that we do
12 13 almost without even thinking about it to make sure that we have
13 14 a clear record later on. Okay?
14 15 A Yes.
15 16 Q The most important thing I want you to be aware of
16 17 today is that I don't want you to answer any questions that you
17
18 don't understand. All right?
18
19 A Okay.
19
20 Q If I ask a question that you don't understand, it's
20
21 probably because I've asked it in a confusing way
21
22
22 unintentionally. And if you let me know that I confused you,
23
23 we'll work until we understand each other. Okay?
24 24 A Okay.
25 25 Q That way if you give me an answer today, I'm going to
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Page 6 Page 8
1 assume that you understood my question and gave me the answer 1 as a paralegal for about a year.
2 that you intended to give. Fair enough? 2 Q What — what -- did you work for a specific attorney?
3 A Fair. 3 A No. Just for the Social Security Administration.
4 Q All right. Thank you, ma'am. 4 Q Okay. Now, what are you doing presently at Macy's
5 Give me your residence address please, 5 Department Store?
6 Ms. Manigault. 6 A Work within the fulfillment center.
7 A I use a P.O. box. Do you want a street address 7 Q Is that something where you package items that have
8 Q I want the street address, please. 8 been purchased in order for them to be shipped to the buyer,
9 A 204 Gentrys Walk, Atlanta, Georgia 30341. 9 that sort of thing?
10 Q Does anybody live with you at that address? 10 A Yes. Correct.
11 A My daughter when she comes home but. no, I'm alone. 11 Q How long have you worked for Macy's?
12 Q Okay. Now, I understand that your daughter is 12 A November of 2012.
13 presently a student at Stephen F. Austin; is that right? 13 Q And what is your salary or rate of pay there?
14 A That's correct. 14 A Eight dollars an hour.
15 Q And she still considers your home to be her permanent 15 Q And how many hours do you work on the average a week?
16 residence, I guess? 16 A Probably nine through -- nine through 20 hours. Nine
17 A Correct. 17 to 15 hours. Just depends.
18 Q All right. How long have you lived at that address 18 Q Okay. Give me an idea of what your job duties
19 in Atlanta? 19 consist of. I mean, from a physical standpoint, what do you
20 A 2001. 20 do?
21 Q All right. Now, I'm assuming that —this accident 21 A Basically it's clothing that is purchased. And what
22 happened here in Nacogdoches on North Street. I'm assuming 22 I do is just take those clothing —someone else usually picks
23 that your being in Nacogdoches had to do with your daughter 23 it or sometimes I'll go pick the merchandise from the actual
24 being in school here; is that correct? 24 area, and then just bag them, put a label on them, send them
25 A That's correct. 25 out.
Page 7 Page 9
1 Q Okay. Were you visiting her here when this accident 1 Q Does that involve any type of heavy lifting?
2 happened? 2 A No.
3 A Yes. I came to pick her up — 3 Q Okay.
4 Q Okay. 4 A Because usually the items are basically just small
5 A — for a break. 5 items.
6 Q Other than your daughter, you probably don't have any 6 Q When you're at work, are you pretty well on your feet
7 relatives that live here in the Nacogdoches area, do you? 7 the entire time that you work?
8 A I don't. 8 A Yes. Basically I'm on my feet, you know, when I'm --
9 Q And are you presently employed, ma'am? 9 when I'm there. And usually it's only about three, three
10 A Yes. 10 hours, three and-a-half hours that I --
11 Q Where do you work? 11 Q So your —
12 A Macy's Department Store. 12 A —time maybe.
13 Q I think I saw something in some of your records where 13 Q -- usual shift would be about three, three and-a-half
14 you had previously worked was it for the Social Security 14 hours then?
15 Administration? 15 A Yes.
16 A Correct. 16 Q Okay.
17 Q How long did you work for the Social Security 17 A Or sometimes I'll work in the area where we're
18 Administration? 18 unpackaging merchandise that comes in. Clothing, pull them
19 A From 1998 through 2011. 19 out.
20 Q And what type of work did you do for the Social 20 Q Okay. Now, where were you working when this accident
21 Security Administration? 21 happened?
22 A Legal assistant slash paralegal. 22 A At Kohl's Department Store.
23 Q Was there any particular area of work that you 23 Q And what was your job there?
24 specialized in? 24 A I worked in the jewelry department.
25 A The legal assistant was basically my job. I worked 25 Q As a sales clerk?
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Page 10 Page 12
1 A Yes. l A Probably about —1 would say the accident happened
2 Q And what was your average work week at that time? 2 in August, probably about two months.
3 A I didn't work as much as —probably —let's see. I 3 Q Okay. After the accident happened, you returned to
4 think I worked with Kohl's like 25 hours a week or more at 4 Atlanta with your daughter; is that right?
5 Kohl's. 5 A Correct.
6 Q It's my understanding that you are taking the 6 Q How long after the accident was it that you traveled
7 position that you lost that job because of this accident; is 7 back to Atlanta?
8 that correct? 8 A The very next day.
9 A I - yes. 9 Q And how did you travel?
10 Q Okay. How long -- when did you start working at 10 A My daughter drove.
11 Kohl's? 11 Q Did you have a cell phone at the time of this
12 A I'm not sure. I don't remember. 12 accident?
13 Q Was it —you told me that you - 13 A 1 did.
14 A It was part-time before I - when I was at Social 14 Q And what's the —what is the air carrier, first of
15 Security. 15 all?
16 Q Okay. So you were still working at Social 16 A Sprint.
17 Security — 17 Q And what is the number?
18 A No. 18 A 1 don't have that same number now. I don't remember
19 Q -- at that time? 19 what it was. but it was —my daughter had her phone and then I
20 A Yes. 20 got mine through hers.
21 Q Okay. 21 Q But you do not have the same cell phone number now?
22 A Uh-huh. 22 A No.
23 Q And do you recall what your hourly rate of pay was at 23 Q And you don't remember what your cell phone number
24 Kohl's? 24 was at the time of this accident?
25 A 8.25 an hour. 25 A I don't.
Page 11 Page 13
1 Q Was it a sales clerk position where you would get any 1 Q Tell me a little bit about your education, ma'am.
2 type of additional compensation, such as a bonus for making a 2 Did you go to school? You told me you grew up in South
3 certain number of sales or commission or anything like that? 3 Carolina; is that correct?
4 A I'm thinking because 1really don't remember. 4 A Uh-huh. Correct.
5 I'd like to revisit the question you asked me. 5 Q Did you go to high school in South Carolina?
6 I don't believe I was working at Social Security when I got 6 A I did.
7 that job at Kohl's. 7 Q What school?
8 Q You had already retired from Social Security? 8 A I went to Baptist Hill High School, and then I
9 A I believe so. 9 moved —my sister moved to Philadelphia, so I moved to help
10 Q Would it be - 10 her with her family. So I graduated from high school in
11 A I'm not sure, so let's just —I need to check on 11 Philadelphia.
12 that because I don't remember when I started working at Kohl's. 12 Q What high school did you graduate from?
13 Q Would it have been in the year 2011 when you started 13 A Simon Gratz High Philadelphia.
14 working at Kohl's? 14 Q And what year was that?
15 A I don't remember. 15 A 19—you would ask me that. 1968.
16 Q Okay. The accident that we're here to discuss took 16 Q All right. Did you have any education past high
17 place on August the 12th, 2011 - 17 school?
18 A Uh-huh. 18 A Yes.
19 Q —according to the report. Does that sound correct 19 Q Tell me what that consisted of, please.
20 to you? 20 A An undergrad degree in —an undergrad and a masters
21 A Yes. 21 degree.
22 Q And after that accident took place, did you ever go 22 Q Where was your undergrad degree from?
23 back to work at Kohl's? 23 A Southern Illinois University.
24 A Yes. 24 Q And what is the -- what is it in?
25 Q How long did you continue working at Kohl's? 25 A Education.
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5 (Pages 14 to 17)
Page 14 Page 16
1 Q And where is your masters degree from? 1 A It wasn't raining. It was —and it was clear.
2 A University of Phoenix. 2 Q And I understand it happened on North Street, which
3 Q And what is it in? 3 is adjacent to where we're -- we're taking this deposition; is
4 A MBA. 4 that correct?
5 Q When did you receive your MBA? 5 A Correct.
6 A It was while I was working at Social Security. 19 — 6 Q But it was back behind us. It was farther north than
7 I'm not sure about the dates, though. 7 where we are now?
8 Q Okay. And I think I probably know the answer to this 8 A Yes.
9 question, but have you had any trouble with the law? 9 Q Tell me your recollection of how it happened please,
10 A No. 10 ma'am.
11 Q Are you a Medicare beneficiary? 11 A Well, I had just - I was driving in to pick my
12 A What does that mean? I'm probably not because I 12 daughter up, who was housed on Stephen F. Austin campus, so I
13 don't know what it means. 13 was-
14 Q Do you get Medicare benefits? 14 Q Were you just arriving from Atlanta?
15 A I don't. 15 A Yes.
16 Q Okay. And what about health insurance? Do you have 16 Q Okay.
17 health insurance presently? 17 A And there was a traffic light. I stopped at the
18 A Through my retirement with the Social Security. 18 traffic light.
19 Q So you had health insurance at the time this accident 19 Q Okay. Were you the first vehicle in line there at
20 took place? 20 the traffic light?
21 A (The witness nods). 21 A Yes. And I was stopped there at the light and the
22 Q Your answer is yes? 22 next thing I knew I was violently struck from behind through
23 A Yes. 23 the traffic light. I was on the other side of the street. And
24 Q Okay. 24 two gentlemen rushed over and they said that they needed to
25 A I'm sorry. 25 push me out of the way because they didn't want me to be struck
Page 15 Page 17
1 Q And have your —the medical expenses I've seen - 1 by another vehicle because it was an intersection.
2 one of the things I want to do today with you is make sure I 2 Q Okay. Let me go back and ask a few questions about
3 have all of your medical expenses and bills. But do you know 3 the things that you just told me. You were just arriving in
4 if any or all of your medical expenses relating to this 4 Nacogdoches from Atlanta; is that correct?
5 accident have been submitted to your health insurance carrier? 5 A Correct.
6 A No, I'm —I don't know. 6 Q How long did it take you to drive from Atlanta?
7 Q Have you had any accidents prior to this one, been 7 A 1don't remember because normally it's a -- usually
8 involved in any automobile accidents, that is? 8 an 11 hour drive, but what I do is I stop and, you know, eat
9 A No. 9 and I have my little places that, you know, I rest and then
10 Q Is this —is it true then that this is the only 10 drive. And so I'm not exactly sure.
11 automobile accident that you've ever been involved in? 11 Q Okay. So it's 11 hours actual driving time then?
12 A Yes. 12 A Yes.
13 Q Setting aside automobile accidents for a minute, have 13 Q And had you started from Atlanta that same morning?
14 you had any other types of accidental injuries that were 14 A Actually, what I normally do is leave like maybe
15 serious enough to require medical attention of any type? 15 3:00, 4:00 in the morning so that when it gets light, you know,
16 A No. 16 I'll be at a certain point.
17 Q Now, I've been referring to the accident as taking 17 Q Is that what you did on this day, leave Atlanta at
18 place on August the 12th of 2001 (sic). Does that sound 18 about 3:00 or 4:00 in the morning?
19 approximately correct to you? 19 A Yes.
20 A Yes. 20 Q And so with the addition of some stops to eat and
21 Q And about what time of day did the accident happen? 21 rest, you had been driving more or less continually since
22 A It was between 8:30, 10:00. 22 3:00 or 4:00 that morning when the accident happened at about
23 Q A.M. or p.m.? 23 8:30 or 9:00 p.m.?
24 A P.M. 24 A Uh-huh.
25 Q And what was the weather like? 25 Q Your answer is yes?
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Page 18 Page 2 0
1 A Yes. 1 had gone through the intersection on the side of the street,
2 Q Okay. How were you? Were you tired or anything by 2 but I don't remember exactly how I was angled. But they wanted
3 that time? 3 to move me because they didn't want another car to hit me.
4 A No, because that's why I stop and rest so that I 4 Q So it would have been —
5 wouldn't get tired driving. 5 A It was through the intersection.
6 Q Now, you were the first vehicle in line at the light 6 Q - positioned to - it would have been positioned so
7 and you were stopped; is that correct? 7 that you would have been blocking traffic then?
8 A Correct. 8 A Yes.
9 Q What kind of vehicle were you in? 9 Q Would it have been blocking traffic on the same
10 A Chrysler Sebring. 10 street that you were traveling on or blocking traffic on the
11 Q And it has an automatic transmission, I gather? 11 cross street?
12 A I'm not sure but ~ 12 A It would be blocking traffic on the same street that
13 Q Does it have a clutch in it? 13 I was on.
14 A A clutch? 14 Q Were you aware that there was going to be an impact
15 Q Yes, ma'am. Do you have to shift gears manually? 15 before it happened?
16 A No. 16 A No.
17 Q Okay. So you're sitting there and your foot was on 17 Q So you didn't tense up or brace yourself?
18 the brake, I gather? 18 A No.
19 A Yes. 19 Q And was the actual contact itself, was that your
20 Q You mentioned that the contact between the two 20 first - the first thing that made you aware that an accident
21 vehicles caused your vehicle to move forward, correct? 21 either had happened or was going to happen?
22 A Through the traffic light on the other side of the 22 A Correct.
23 street. 23 Q After your vehicle came to a rest, tell me what
24 Q Do you know how far that would be? 24 happened next.
25 A No. 25 A Ms. Thorn came running to the car and she kept
Page 19 Page 21
1 Q Was your —when you were moving from the position 1 apologizing. She said that she did not see the traffic light
2 where you were stopped to the position where your vehicle came 2 nor did she see me because she was looking to the right at a
3 to a rest again, was your vehicle —were the tires rolling on 3 store that she was going to visit.
4 the street? 4 Q When she apologized, was that -- was it your
5 A Oh, I don't know. All I remember when my neck 5 understanding that in doing so she was accepting responsibility
6 snapped forward and this horrifying feeling because I was just 6 for the accident?
7 scared. I —I wasn't conscious as to, you know, what was 7 A Correct.
8 going on with the tires or anything. All I knew was I had my 8 Q As the accident happened, can you give me an idea
9 foot on the brake but the car was not stopping. And I was 9 about how your body moved within the vehicle?
10 scared because I knew that I was, you know, stopped at an 10 A I remember when the impact started that I, you know,
11 intersection. 11 went forward. I had my seat belt on, but I went forward like
12 Q Do you know whether —if the impact caused your foot 12 this (indicating) and my neck just flipped back this way.
13 to come off the brake and then you put it back on later? 13 Q Okay. And you were wearing your seat and shoulder
14 A No, because I kept trying to apply the brakes so that 14 belt, correct?
15 the car would stop. I was conscious of — 15 A Correct.
16 MR. FLASOWSKI: I^et him finish his question , 16 Q After the accident happened, did you have any
17 before you answer. 17 bruising from either your seat or your shoulder belt?
18 THE WITNESS: I'm sorry. 18 A No.
19 Q (BY MR. HUGHES) At any rate, when you came to a 19 Q Other than —of course, you're seated on the seat?
20 rest, some gentlemen came to your vehicle with the idea that 20 A Yes.
21 they were going to move it to get it out of the intersection? 21 Q You possibly have a headrest behind your back?
22 A Yes. 22 A Correct.
23 Q So was it - was it actually in the cross part of the 23 Q Behind the back of your head, I should say. And
24 intersection still at that time? 24 you're in contact with the seat and shoulder belt. Other than
25 A It wasn't in the cross part of the intersection. It 25 those contact points with the vehicle, did you come into
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Page 22 Page 24
1 contact with anything else on the inside of the vehicle? 1 medication, for the next day because he said that, you know, I
2 A No. I just remember my right hand just bearing 2 would feel worse the next day. And that night my neck was
3 really hard on the steering wheel because I was trying to, you 3 hurting. And he ordered a CT scan at that time.
4 know, apply the brake, too. 4 Q Okay. So at the hospital, you were administered
5 Q Okay. Now, you told me about some conversation that 5 medications for your injuries from the accident but also for
6 you had with Ms. Henderson. I think you said Thorn. It's Jane 6 your blood pressure? And then -
7 Thorn Henderson according to this and — 7 A Yes, because it —
8 A Okay. 8 Q I'm sorry.
9 Q ~ I'm not sure really which name she goes by 9 A Go ahead.
10 presently. But you told me about some conversation that you 10 Q And then you were also given a CT scan; is that
11 had with her. Did you have any other conversations with her? 11 right?
12 A I did. Later she asked me how I was doing. And as I 12 A Correct.
13 progressed that night, you know, even when the policeman was 13 Q What - did they do anything else for you there at
14 there, I was sharing with her that I was feeling some pain in 14 the hospital?
15 my neck and in my back. And I told her that I was going to be 15 A They kept me there and monitored me because they
16 going, you know, to see a doctor. And she told me that the 16 wanted to make sure that my blood pressure, you know, went
17 Medical Center, Nacogdoches Medical Center, was right up the 17 down.
18 street on the corner, that I could go there. 18 Q How long —
19 And also she came —when she came —initially 19 A And then —
20 approached the car, she said that she went behind my car to 20 Q I'm sorry. Go ahead.
21 look at the back of my car and she said, "Well, I hit you so 21 A And then, you know, they wanted to make sure that the
22 hard," she said, "My front bumper came off and I took it and 22 pain had subsided to a degree where at least 1 —they could
23 put it in the trunk." 23 release me. So it was —I stayed - go ahead. I'm sorry.
24 Q Okay. Is that pretty well all that you-all discussed 24 Q That's okay. How long were you there in all at the
25 there at the scene of the accident? 25 hospital?
Page 23 Page 25
1 A All I can remember at this time. 1 A An hour and-a-half.
2 Q All right. Had you ever injured your neck prior to 2 Q Okay.
3 this accident? 3 A And that was after the procedure. After they had -
4 A No. 4 I'm not —the hour and-a-half is what they kept after they had
5 Q Ever injured your back before this accident? 5 administered all the - the CT scan. So I stayed at the
6 A No. 6 hospital longer than an hour and-a-half. but they kept me there
7 Q Had you ever been to a chiropractor for any type of 7 an hour and-a-half to monitor me.
8 treatment or evaluation? 8 Q From the time you arrived at the hospital until the
9 A No. 9 time you left, how long ~ how much ~
10 Q So you became aware while you're still there at the 10 A I'm not sure.
11 scene of the accident that you're starting to experience some 11 Q Did you get to the hospital pretty soon after the
12 pain in your neck and back; is that correct? 12 accident happened?
13 A Correct. 13 A Correct.
14 Q Are those the two areas of your body that were 14 Q And did you get there by private vehicle or did you
15 injured in the accident? 15 go by ambulance?
16 A My —my legs —my legs tingled and then I have 16 A I drove.
17 pains in my legs as well. My hip —my whole back area I had 17 Q All right. So in taking this in chronological order,
18 down to my leg. The day of the accident —well, the day after 18 after the accident happens, you stay there for a while in order
19 the accident, which is what the doctor told me. He said, 19 to give the police the information that the police need,
20 "After today you will feel worse pain." 20 correct?
21 But when I went to the Nacogdoches Medical 21 A Correct.
22 Center, actually, my blood pressure was through the roof at 22 Q You were told about the hospital and where it's
23 that time and they made —they gave me some medication, an IV, 23 located and then you drove yourself to the hospital, correct?
24 to pull my blood pressure down. They gave me some Demerol and 24 A Correct. Uh-huh.
25 they also gave me some medication, a prescription for 25 Q You were there at the hospital being treated and then
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1 being observed for a period of time, correct? 1 A Probably about three, four days.
2 A Yes. 2 Q Okay. So you missed three or four days -
3 Q And then was it the next day that you rode back to 3 A Uh-huh.
4 Atlanta in the car with your daughter driving? 4 Q - after the accident and then returned to work?
5 A Yes. Well, the doctor told me-you know, I told 5 A Yes.
6 him —because he asked me would I be doing any driving. And I 6 Q At some point, did you return to get further
7 told him, you know, I was from Atlanta. And he said, "Well, I 7 treatment from Dr. Fowler?
8 don't want you driving at all because you're going to be in 8 A I did.
9 extreme pain tomorrow. Just the first thing you do go pick up 9 Q About how long after the accident was your second
10 the medication and make sure you take that." 10 visit with Dr. Fowler?
11 So my daughter went and she picked up the 11 A Probably about two weeks later. I don't remember
12 medication for me. And I laid down in the backseat of the car, 12 exactly the date I went back to him.
13 which is what he had instructed me to do and not move, you 13 Q Okay. That's okay. And what did he do for you at
14 know. Not sit up or attempt to drive. 14 that time?
15 Q Okay. After the day of the accident when you went to 15 A He, you know, checked me out, observed what areas -
16 the emergency room, what is the next medical attention that you 16 because at that point there was certain areas that was
17 had? 17 screaming louder than others. And so —
18 A 1 went to —the doctor at the Medical Center, 18 Q What areas were screaming —sorry to interrupt you,
19 Nacogdoches Medical Center, told me to call an orthopaedic 19 but what areas were screaming louder?
20 doctor to check my back out. When I arrived at home, I called 20 A From - from my neck here and my back, middle back.
21 Dr. Fowler. 21 My hips were like strained. You know, I had a strained feeling
22 Q Had you ever been to Dr. Fowler before? 22 and then there was like —I don't know how to describe it, but
23 A No. 23 it was like pain that —shooting pains going down my legs.
24 Q Okay. And did you get an appointment pretty soon 24 Q So the areas of concern when you were being treated
25 with Dr. Fowler? 25 by Dr. Fowler was pain in your neck?
Page 27 Page 2 9
1 A I did. 1 A Uh-huh.
2 Q And when you went to Dr. Fowler, what did he tell you 2 Q Pain in your back?
3 and what did he do for you? 3 A Uh-huh.
4 A He told me that he could not treat me because my 4 Q Pain in your hips and shooting pains down your legs?
5 whole body was aching and that I needed to continue to take the 5 A Yes.
6 medication so that - and then the pain would centralize, then 6 Q Okay. And did Dr. Fowler ever tell you —give you a
7 he could determine what area to treat. But he couldn't treat 7 diagnosis, tell you what he thought specifically was wrong with
8 me because everything was hurting at that point. He said which 8 you?
9 was normal after a car accident. 9 A What he said was that it was typical of the type of
10 Q So he told you to basically rest, to let yourself 10 pain that I had after a car accident, so he referred me to a
11 heal some? 11 physical therapist, to the physical therapist.
12 A Yeah. Continue — well, not heal but to continue to 12 Q Okay. And I saw here where you went through a course
13 take the medication so that the pain - until the pain, I 13 of physical therapy. That was at Dr. Fowler's referral?
14 guess, centralized itself. 14 A Yes.
15 Q Did he tell you not to go to work? 15 Q And how long did your course of physical therapy
16 A Well, he told me to rest. 16 last?
17 Q Okay. 17 A Let me think about it. I don't remember the last
18 A Yes. 18 date of it, of how many —I think it was through November, but
19 Q Did you — 19 I'm not sure.
20 A He gave me a —yeah, a —he gave me a notice to 20 Q Okay. Did Dr. Fowler give you any prescription
21 give to my work. 21 medications in addition to referring you to physical therapy?
22 Q Okay. And did you miss some time from work 22 A He didn't because I still had the prescription from
23 immediately after the accident? 23 the Nacogdoches Medical Center that I could renew.
24 A I did. 24 Q Did he ever - during your course of treatment with
25 Q How long did you miss immediately after the accident? 25 Dr. Fowler, did he ever give you any prescription medications?
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1 A He did not because I had the one from the Medical 1 issues with it —with the accident, then that is going to
2 Center that I could renew. 2 continue.
3 Q During your course of physical therapy, did the pain 3 Q Okay. In all, how many times did you go to
4 in your neck improve? 4 Dr. Fowler?
5 A It improved to the point where I could manage it on 5 A Four times. I believe.
6 my own. 6 Q Okay. Up until the time you finished your physical
7 Q What about the pain in your back, did it improve 7 therapy, you've been to the emergency room here in Nacogdoches?
8 through your course of physical therapy? 8 A Uh-huh.
9 A Yes, to the point where I could manage it. 9 Q You've been to Dr. Fowler in Atlanta?
10 Q Okay. Same thing with regard to your hips, did that 10 A Yes.
11 improve, also? 11 Q And you've had physical therapy. During that
12 A Yes. 12 timeframe, did you have medical attention from any other
13 Q And what about the shooting pain down your legs, did 13 professional?
14 that get better? 14 A During the time of —
15 A Yes. 15 Q Up until the point that your physical therapy ended.
16 Q So by the time you finished physical therapy, you 16 A You're not talking about after it ended?
17 mentioned that your neck pain was what you referred to as 17 Q No.
18 manageable, correct? 18 A Just before. No.
19 A Yes. 19 Q I'm trying to keep it in order —
20 Q And your low back pain was manageable; is that 20 A Yes.
21 correct? 21 Q —so I can understand it.
22 A Correct. 22 A Yes.
23 Q What about your hips and legs, had they gotten better 23 Q You did or did not have other —
24 at that time? 24 A I did not.
25 A I'm still having some issues, especially I'm really 25 Q Okay. After you finished your physical therapy, did
Page 31 Page 3 3
1 concerned about my hips because it gets so strained at times 1 you have any other medical attention?
2 until there is nothing that I do to relieve that. And it 2 A Yes.
3 happens on a basis where I'm not sure about when it's going to 3 Q From whom or what medication?
4 happen, and the same thing happens with my back as well. 4 A Dr. Ruder.
5 Q Your low back? 5 Q What type of doctor is Dr. Ruder?
6 A Yes. Well, in my midback and my lower back, and my 6 A A chiropractor.
7 legs does the same thing. And I never know when it's going to 7 Q Did somebody refer you to Dr. Ruder?
8 happen. 8 A No. 1was having pains in my back and it just, you
9 Q Okay. So you don't have these conditions or problems 9 know, persisted and it was giving me more problem than usual.
10 all the time, but they happen intermittently and you don't know 10 And after the third day, I decided that I needed to see someone
11 when they are going to happen? 11 because I —nothing I could do to relieve the pain.
12 A Exactly. 12 Q When you first went to Dr. Ruder, did he do —I'm
13 Q Okay. And is there —have you noticed anything 13 sure he gave you an examination for one thing; is that correct?
14 that - that is likely to bring on those pains? Such as 14 A Yeah.
15 certain activities or certain, you know, positions that you 15 Q Did he do any other imaging studies, like x-rays?
16 might be in? Anything like that? 16 A No, he didn't. You know how chiropractor - I've
17 A No. 17 never been to a chiropractor, but he was just trying to reset
18 Q When you finished your course of physical therapy, I 18 some bones and he thought that that might be an area, but you
19 understand you don't -- you think it was November, you're not 19 know it was excruciating pain.
20 sure. That's fine. When you finished that course of physical 20 Q You mean the chiropractic treatments were?
21 therapy, did you return to see Dr. Fowler again? 21 A Yes.
22 A I did not because the last time that I visited him, 22 Q Okay. How many times did you go to Dr. Ruder?
23 he concluded that because I was hit by a 4,000 pound machine, 23 A Just that once.
24 he said —he said it just like that, that normally after that 24 Q Okay. And did you have any other treatment after
25 you will continue to have issues with your back. If you had 25 Dr. Ruder?
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Page 34 Page 3 6
1 A I did not. l Q Do you know how much your medical bills have been
2 Q So is it true then that as we sit here today the last 2 relating to the accident?
3 treatment that you have had for injuries that you associated 3 A I'm not sure about the exact amount.
4 with the accident would be from the chiropractor, Dr. Ruder? 4 Q Well, let me read you these numbers and then - you
5 A Yeah, a professional. Yes. 5 probably don't have it memorized, and I understand that, but
6 Q Okay. Do you have any plans to get any additional 6 let me just read you these numbers and if you - tell me if
7 medical attention? 7 there's anything that's obviously missing or anything that you
8 A I do not. And for the reason that the physical 8 think is clearly incorrect. Okay?
9 therapist during the period that I was going through my 9 A Okay.
10 physical therapy, she taught me what to do and how to do, you 10 Q I have Nacogdoches Hospital, $2,818.14. Forest
11 know, stretches in order to prevent some of the pain or prevent 11 Country Emergency Physicians, that would probably be the
12 my muscles from tightening. 12 emergency room doctor, $890. Lufkin Radiology, $215. David
13 Q Are you still doing the stretches that the physical 13 Fowler, $250. And Resolution Physical Therapy, $3,430.
14 therapist taught you? 14 First of all, are there any bills that you're
15 A Every morning. 15 aware of that I did not just mention?
16 Q Okay. And are you still taking any prescription 16 A Are those resent? Because I'm not sure about whether
17 medication? 17 or not all of those bills were paid, so I don't know if the
18 A No, I'm not. 18 amounts would still be the same.
19 Q Do you feel that you need some type of prescription 19 Q Right. Well, I mean, were you originally charged -
20 medication? 20 whether the amounts are still the same or not from having been
21 A Sometimes I do. 21 partly paid, possibly -
22 Q Do you have a primary care physician there in 22 A Yes.
23 Atlanta? 23 Q -- are you aware of any charges that you incurred
24 A Ida 24 that I did not mention there?
25 Q And what's the primary care doctor's name? 25 A You're talking about just personal like maybe the
Page 3 5 Page 3 7
1 A Maria Arias. 1 medication and —
2 Q How do you spell that, if you know? 2 Q Charges for either medical expenses, that is by way
3 A I think it's A-R-I-A-S. 3 of doctor or physical therapy treatment, or prescription
4 Q Okay. And have you been to Dr. Arias for injuries 4 medication costs? Anything like that?
5 that you associate with this accident? 5 A Yeah, because those are not added into that.
6 A No. 6 Q Okay. I saw one bill mentioned - but I didn't see
7 Q Whether she's treated you for injuries from this 7 the actual bill. I saw it mentioned the sum of $18.59 for
8 accident or not, have you been to Dr. Arias since the accident 8 prescriptions. Would that - would that be the total of your
9 happened? 9 prescription medication bills?
10 A That was August 2011. No, I have not. I'm sorry. 10 A I'm not sure.
11 August 2012 because I do my yearly exam with her. 11 Q Have your injuries from this accident interfered with
12 Q Okay. 12 any of your non work activities?
13 A Yes. 13 A Absolutely.
14 Q So you went to Dr. Arais in August of 2012? 14 Q Can you give me some examples, please?
15 A No. I'm saying the accident was August 2011 and I 15 A In 1975 I became an avid runner, so I ran five miles
16 would have taken my exam with her in 2012. 16 every day. Since the accident I have maybe run five miles once
17 Q Okay. 17 a week and then I had to build back up to that. I started
18 A But not for the accident. 18 walking, you know, because when I would even try to run, my
19 Q Do you know how much the chiropractor charged? 19 back would start to hurt, so I started walking. And then I
20 A No, I don't. 20 progressed up to being able to run five miles. The other thing
21 Q I was just looking at a list of your medical expenses 21 is -
22 and I don't see a •-1 don't see anything from the chiropractor 22 Q So presently you are able to run five miles then?
23 but it was just on the one occasion that you went to the 23 A But not as often. 1 only can do it once a week where
24 chiropractor? 24 before I did it seven days a week.
25 A Yes. 25 Q Okay.
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1 A And I've gained 20 pounds as a result of it. l exhaustive list, but I just wanted to kind of get an idea of
2 Q Up until the day of this accident you were 2 some of the things that may have been interfered with. Okay?
3 essentially running five miles every day? 3 A Yes. And, actually, you know, when I'm doing my
4 A Yes. 4 household chores now, 1 have to take breaks so that, you know,
5 Q And now you've worked back up to running five miles, 5 I can continue to complete my tasks.
6 but you only do it one time per week? 6 MR. FLASOWSKI: Just answer a question when he
7 A Yes. 7 has one.
8 Q Are you working to improve that or increase that 8 THE WITNESS: Oh, okay.
9 still? 9 Q (BY MR. HUGHES) I see here where you have listed
10 A I am. I'm trying to. 10 a -- actually, two Wal-Mart pharmacies in the Atlanta area as
11 Q Any other activities that have been interfered with? 11 being a provider for which you have received some treatment as
12 A Yes. Even driving up here, it's like last night I 12 a consequence of the accident. Did you get some prescriptions
13 didn't rest because my back was aching. And normally, you 13 after you got back to Atlanta?
14 know, once I stop and do my resting period and eat and 14 A Yes. I refilled the prescription that was given to
15 everything, you know, I never - I'm never tired or my back 15 me from the Medical Center.
16 does not ache. And even now it's still aching because of 16 Q Okay. And did you refill it on - it looks like you
17 sitting in one position for a long period of time. 17 refilled it at two different places; is that correct?
18 I can't, you know, bend over. I have to be 18 A Correct.
19 conscious of how I bend. I have to make sure that I use my 19 Q Has that prescription presently expired?
20 knees now where before, you know, I could just bend. The other 20 A Yes.
21 thing - well, I mentioned sitting down for long periods of 21 Q Now, you mentioned to me that you did return to work
22 time. Even with my grandchildren, you know, I can't play with 22 at Kohl's following the accident; is that correct?
23 them like I used to, or my grandbaby. In fact, she came —she 23 A Correct.
24 would like for me to swing her around. Well, I can't do that 24 Q And I can't remember how long —you told me how long
25 anymore. I just told her, "Nana can't do that." Or play with 25 you worked there and I can't remember. How long did you
Page 3 9 Page 41
1 them in the playhouse, you know, because I can't bend and move 1 continue to work there at Kohl's?
2 around like I used to. I have to be cautious and careful about 2 A I don't remember when I left. I think it was
3 what it is that I do. 3 November, but I'm not sure.
4 Q How many grandchildren do you have? 4 Q Why did you leave Kohl's?
5 A Two. 5 A Because I asked for some time off so that I could
6 Q And how many children do you have? 6 rest and my manager rejected my request and I needed to not be
7 A Three. 7 on my feet as much. I had explained to him that I was in a car
8 Q You got one here in Nacogdoches and the other two are 8 accident.
9 located where? 9 Q And your best recollection is that that would have
10 A One daughter in Dallas and my son is in South 10 been approximately November?
11 Carolina. 11 A I believe it was, but I'm not sure.
12 Q Okay. Are there any other activities that have been 12 Q And the rest that you needed, that was time off
13 interfered with that you would care to mention? 13 because of your injuries; is that right?
14 A Yes. This is one that really - it affected me for a 14 A Yes.
15 long period of time after the accident. It's like even with 15 Q Do you receive some type of retirement benefits in
16 driving, when I would drive, every time I stopped at a traffic 16 connection with your work at the Social Security
17 light. I would be horrified that I would be hit from the back 17 Administration?
18 again. And it still bothers me even now. I'm constantly — 18 A I do.
19 you know, if I stop, 1 look in the mirror to make sure, you 19 Q Is it the type of thing where those benefits are
20 know, that the car behind me is at least slowing down. 20 reduced in any way because of your earnings or is it just the
21 The other thing is, I used to wear four-inch 21 same whether you work or don't work?
22 heels to church and now I have to wear two-inch heels because 22 A It's the same whether I work or don't work.
23 if I - you know, if I wear heels, it bothers my back from, you 23 Q Other than your injuries from this accident, are you
24 know, sitting or standing. 24 otherwise in generally good health?
25 Q Okay. And I know that that's probably not an 25 A Yes.
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1 Q You described intermittent problems with your neck, i CHANGES AND SIGNATURE
2 PAGE LINE CHANGE REASON
2 back, hips and legs presently. Is that a fair way to describe
3
3 it as intermittent? 4
4 A Yes. 5
6
5 Q And is there any way that you can characterize for me
7
6 how often those occur? 8
7 A No. 9
10
8 Q Does it happen once a week, once a month?
11
9 A No. Because, like, I think it was February for two 12
10 weeks I had —I had back pain for two weeks. And it was one 13
14
11 of those nagging, gnawing things that, you know, no matter what
15 I. INEZ MANIGAULT. have read the foregoing deposition and
12 I did, it just didn't go away. And, you know, I did my hereby affix my signature that same is true and correct, except
13 stretches, you know, heating pad, cold pad, hot water. And so 16 as noted above.
14 I don't know how long it's going to, you know, last or just
17 INEZ MANIGAULT
15 when it comes on.
18
16 Q Okay. Have any of your doctors that you've been to 19 THE STATE OF TEXAS
17 told you about any future medical needs that you're likely to COUNTY OF NACOGDOCHES
20 Before me, on this day, personally appeared INEZ MANIGAULT,
18 have because of the accident?
known to me (or proved to me under oath)to be the person whose
19 A No. I think Dr. Fowler and the physical therapist 21 name is subscribed to the foregoing instrument and acknowledged
20 summed it up pretty well that I will continue to have these to me that they executed the same for the purposes and
22 consideration therein expressed.
21 problems.
Given under my hand and seal of office this day of
22 Q Have we discussed all of the injuries that you 23 .2013.
23 sustained in the accident?
24 Notary Public in and for the
24 A Yes.
State of Texas
25 MR. HUGHES: All right. Thank you for your 25
Page 43 Page 45
1 time, ma'am. I'll pass the witness. 1 CAUSE NO. CI228525
2 MR. FLASOWSKI: I'll reserve my questions for 2 INEZ MANIGAULT * IN THE DISTRICT COURT
*
3 the time of trial. We would like to read and sign.
3 VS. * 145TH JUDICIAL DISTRICT
4 (End of Proceedings.)
5
4 JANE THORN HENDERSON * NACOGDOCHES COUNTY, TEXAS
6
5 REPORTER'S CERTIFICATION
7
6 DEPOSITION OF INEZ MANIGAULT
8
7 MARCH 22, 2013
9 8 I, Liesa Kliman, Certified Shorthand Reporter in and for
10 9 the State of Texas, hereby certify to the following:
11 10 That the witness, INEZ MANIGAULT, was duly sworn by the
12 11 officer and that the transcript of the oral deposition is a
13 12 true record of the testimony given by the witness;
14
13 That the deposition transcript was submitted on
14 . 2013. to the witness or to the attorney
15
15 for the witness for examination, signature and return to me by
16
16 .2013.
17
17 That the amount of time used by each party at the
18
18 deposition is as follows:
19
19 W. WADE FLASOWSKI - 00:00(HOURS:MINUTES)
20
20 JAMES E. HUGHES - 00:46(HOURS:MINUTES)
21 21 That $ is the deposition
22 22 officer's charges to the DEFENDANT for preparing the original
23 23 deposition transcript and any copies of exhibits;
24 24 That pursuant to the information given to the deposition
25 25 officer at the time said testimony was taken, the following
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Page 46
i includes counsel for all parties of record:
2 W. WADE FLASOWSKI, Attorney for Plaintiff;
3 JAMES E. HUGHES, Attorney for Defendant.
4 I further certify that I am neither counsel for, related
5 to, nor employed by any of the parties or attorneys in the
6 action in which this proceeding was taken, and further that I
7 am not financiallyor otherwise interested in the outcome of
8 the action.
9 Further certification requirements pursuant to Rule 203 or
10 TRCP will be certified to after they have occurred.
11 Certified to by me this day of ,
12 2013.
13
14
15
16 Liesa Kliman, CSR#2248
1205 Main Street
17 Garland, Texas 75040
972.494.2000
18 Expiration Date: 12/31/13
Firm Registration #216
19
20
21
22
23
24
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Page 47
1 FURTHER CERTIFICATION UNDER RULE 203 TRCP
2 The original deposition was/was not returned to the
3 deposition officer on ;
4 If returned, the attached Changes and Signature page
5 contains any changes and the reasons therefor;
S If returned, the original deposition was delivered to
7 , Custodial Attorney,
8 That the deposition was delivered in accordancewith Rule
9 203.3 and that a copy of this certificate was served on all
10 parties shown herein and filed with the Clerk.
11 Certified to by me this day of
12 , 2013.
13
14
15 Liesa Kliman, CSR#2248
1205 Main Street
16 Garland, Texas 75040
972.494.2000
17 Expiration Date: 12/31/13
Firm Registration #216
18
19
20
21
22
23
24
25
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