Paul Samuel Goldberg and Pacific Motor Transport Company, D/B/A Pacer v. James Dicks ( 2004 )

NO. 12-02-00053-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

PAUL SAMUEL GOLDBERG AND

§ APPEAL FROM THE 115TH

PACIFIC MOTOR TRANSPORT

COMPANY d/b/a PACER,

APPELLANTS

V.

§ JUDICIAL DISTRICT COURT OF

JAMES DICKS,

APPELLEE

§ UPSHUR COUNTY, TEXAS MEMORANDUM OPINION

Following a jury trial, Appellants Paul Samuel Goldberg ("Goldberg") and Pacific Motor Transport Co., d/b/a Pacer ("Pacer"), challenge an $892,372.80 final judgment rendered in favor of James Dicks ("James"). In four issues, Goldberg and Pacer contend that the evidence is legally and factually insufficient to support the jury's findings. We modify the judgment of the trial court, and as modified, affirm.

Background  

On August 19, 1996, James was working for his brother, Gary Dicks ("Gary"), as a laborer for Gary's residential construction company in Upshur County. That day, James, Gary, and other workers installed vinyl siding on a house in Tyler. At around 4:30 p.m., the crew quit for the day, and loaded into two pickup trucks in order to travel back to Upshur County. Gary was driving one of the trucks and pulling a sixteen-foot flatbed trailer. The cargo bed of the truck contained empty vinyl siding boxes, air compressors, and a large tool box. Two crew members rode with Gary in the cab of that pickup truck, and James rode in the cargo bed on top of some folded boxes. The other truck was driven by Nicholas Goins ("Nick").

The two trucks traveled up Highway 271, with Gary's truck leading, and came to the intersection of Highway 271 and Interstate 20. Both trucks were traveling in the right lane and were following an eighteen-wheeled truck. The driver of the eighteen wheeler signaled that he was going to make a right turn off of Highway 271, so Gary switched to the left lane in order to go around the truck.

As the eighteen wheeler was signaling, a second eighteen wheeler, driven by Goldberg in the course and scope of his employment with Pacer, was stopped at the same intersection but was adjacent to the left lane on Highway 271. Goldberg was waiting to cross to the other side of Highway 271. Goldberg looked south on Highway 271 and saw only the eighteen wheeler that was signaling a right-hand turn. The driver of that eighteen wheeler signaled to Goldberg to go first through the intersection and cross Highway 271. As Goldberg took his foot off the brake and released the clutch, he did not notice Gary's pickup truck traveling in the left northbound lane of Highway 271. Goldberg's truck raised up at the same time that Gary was driving his truck directly in front of Goldberg. When Goldberg's truck began to move, the middle passenger in Gary's truck, Charles Whiteside ("Whiteside"), shouted, "It's coming out!" Gary then made a sharp turn to the right and another sharp turn to correct his truck to the left. During these turns, James was ejected out of the cargo bed. As a result, he suffered multiple injuries, including a broken left foot, an injury to his shoulder, skin burns over fifteen percent of his total body surface, and complete tears of the medial meniscus and anterior cruciate ligament in his knee.

On May 13, 1997, James sued Goldberg, Pacer, and Gary, alleging that Goldberg negligently operated his vehicle by 1) failing to keep a proper lookout, 2) operating his vehicle at a speed which was excessive under the circumstances, 3) failing to properly and timely apply his brakes, and 4) failing to yield the right of way in obedience to a traffic control device. On May 19, Gary filed his answer, and Pacer and Goldberg filed their answers on June 30 and September 2, respectively. On May 14, 2001, Goldberg and Pacer amended their answer, asserting affirmative defenses of contributory negligence, unavoidable accident, sudden emergency, and failure to mitigate damages. On October 8, 2001, James's case went to trial. After each side presented its evidence and argued its case, the jury began deliberations on October 11. That same day, the jury found that Goldberg's negligence proximately caused the accident and James's injuries. The jury also found that James was not negligent, and attributed one hundred percent of the cause of the accident to Goldberg. Furthermore, the jury awarded James $85,000.00 for past physical pain and mental anguish, $200,000.00 for future physical pain and mental anguish, $42,000.00 for past lost earning capacity, $180,000.00 for future lost earning capacity, $15,000.00 for past disfigurement, zero for future disfigurement, $15,000.00 for past physical impairment, zero for future physical impairment, $30,000.00 for past medical care, and $40,000.00 for future medical care. ⁽¹⁾ This appeal followed.   

Legal and Factual Sufficiency  

  On appeal, Goldberg and Pacer contend that the evidence adduced at trial is legally and factually insufficient to support 1) the jury's failure to find any contributory negligence on the part of James, 2) the finding that James's ejection out of the cargo bed of the truck was the foreseeable result of any conduct by Goldberg and Pacer, 3) the finding that James will sustain any compensable mental anguish or physical pain in the future, and 4) the jury's award of past medical expenses.  

Standard of Review: Legal Sufficiency  

In reviewing a legal sufficiency or no-evidence complaint, the appellate court must consider only the evidence and inferences tending to support the challenged findings and disregard all evidence and inferences to the contrary. If there is more than a scintilla of evidence to support the challenged findings, the no-evidence challenge fails. Leitch v. Hornsley, 935 S.W.2d 114, 118 (Tex. 1996). We may sustain a "no evidence" point only when the record discloses one of the following: (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence, or (4) the evidence establishes conclusively the opposite of a vital fact. See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). It is not within our province to second guess the factfinder unless only one inference can be drawn from the evidence. See Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 461 (Tex. 1992). If the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact's existence, more than a scintilla of evidence exists. Burroughs Wellcome v. Crye, 907 S.W.2d 497, 499 (Tex. 1995); Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).   

Standard of Review: Factual Sufficiency

When conducting a factual sufficiency review, this court must consider all of the evidence, including any evidence contrary to the verdict. Plas-Tex. Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We must reverse on the basis of factual insufficiency if the court's finding is so against the great weight and preponderance as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). Findings of fact are the exclusive province of the factfinder. Bellefonte Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 744 (Tex. 1986). This court is not a factfinder and may not pass on the credibility of the witnesses or substitute its judgment for that of the trier of fact, even if a different conclusion could be reached on the evidence. See Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988); Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex. App.-Dallas 1986, writ ref'd n.r.e.). When a party without the burden of proof on an issue challenges the factual sufficiency of the evidence, the question is whether insufficient evidence supports the complained-of finding. Gooch v. Am. Sling Co., 902 S.W.2d 181, 184 (Tex. App.-Fort Worth 1995, no writ). An assertion that the evidence is "insufficient" to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the finding should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). When a party challenges the factual sufficiency of the evidence on an issue where that party has the burden of proof, the question is whether the factfinder's failure to make a finding is against the great weight and preponderance of the evidence. Gooch, 902 S.W.2d at 184.  

The Evidence  

James first called Gary to testify as an adverse witness. Gary stated that at the time of the accident, he owned Sawdust Construction, a residential construction company. He employed James as a "helper" to "get things and basically help us install the vinyl [siding] and things like that." James did the heavy work, carrying the vinyl siding and tools. On the day of the accident, he and his crew had been installing vinyl siding on a house in Tyler. His crew consisted of himself, Whiteside, Mario LeMontaine ("Mario"), James, Nick, James Goins, and Michael Robinson ("Robinson"). The crew drove to the job site in three separate trucks. Gary was driving one of the trucks, and Nick and Gary's partner, Carl Underwood ("Underwood"), were driving the other two trucks. Gary was also pulling a flatbed trailer that was loaded with equipment.

At around 4:30 or 5:00 p.m., the crew left the job site. Underwood had left the job site earlier in the day, so there were only two trucks available, both single-cab trucks, to carry the rest of the crew home to Ore City, Texas. When the crew left, Mario and Whiteside were traveling in the cab of the truck with Gary. Nick and James Goins, along with Robinson, occupied the cab of the other truck. Gary further stated, "That left one person out without a seat, which was James and he opt[ed] to ride in the back of my pickup." Both trucks were full, and there was no room in the cab of either truck for another person to ride in. Gary testified that it was common in the construction industry to sometimes have crew members ride in the cargo bed of the truck.

The cargo bed of Gary's truck had handrails along the top side of the bed. That day, the bed contained an air compressor, an aluminum tool box mounted on the cargo bed, and empty vinyl siding boxes "that had been folded and squashed flat." James was sitting on top of the folded boxes, leaning against the front of the tool box, positioned "probably middle ways between the bed of that truck and the top railing of that truck." He was not sitting up high above the side of the truck. In his opinion, there was nothing unsafe or dangerous about James riding in the back of the truck.

Gary testified that on the day of the accident he was driving northbound in the left lane on Highway 271 in front of Nick's truck. He had been driving in the left lane for a quarter to a half-mile before he reached the intersection where Goldberg's truck was located. The intersection was an off-ramp access road off of Interstate 20, eastbound, that intersected with Highway 271. The intersection of the eastbound access road and the southbound lanes of Highway 271 is controlled by a stop sign. Vehicles are then able to cross the southbound lanes of Highway 271 to a road that crosses the median between the northbound and southbound lanes of Highway 271. The intersection of that eastbound median road and the northbound lanes of Highway 271 are controlled by a yield sign. As Gary approached that intersection, he was traveling about 65 miles per hour, and saw Goldberg's truck stopped at the stop sign. He then saw Goldberg drive through that intersection and stop at the yield sign before the northbound lanes of Highway 271.

As Gary approached the intersection where Goldberg was stopped at the stop sign, he was approximately 150 to 200 yards from the intersection. When Goldberg stopped at the yield sign, he was "probably closer to 75, 50, 75 yards from him." Gary testified that he began to slow down as he approached Goldberg because he "was not sure of his actions." He then saw the cab "move up," as if Goldberg had "come off that clutch" and released "the torque of that engine." When Gary realized that Goldberg was "pulling out," he "jerked" his truck to the right. He then noticed that he was traveling toward the bridge support columns, so he steered the truck back to the left to avoid hitting Goldberg.

Gary believed that he would not have been able to use his brakes alone to avoid an accident because he "would have probably hit him in the side in [Goldberg's truck's] fuel tanks." Gary also stated that it was "just a matter of seconds" from the time Goldberg started pulling out to the time he was able to control his truck. Gary then came to a stop about thirty or forty feet past that intersecting road. After Gary came to a stop, Whiteside stated that James had "flew out." Gary then exited his truck, ran to the middle of the highway, and pulled James to the shoulder of the road. James was "moaning, groaning of pain, he had blood all over him and road rash from one end of him to the other."

While Gary was tending to James, Whiteside ran to the on-ramp of Interstate 20 to try to catch Goldberg. An ambulance then arrived at the scene and transported James to the hospital. A Texas Department of Public Safety office also arrived, and Gary discussed with him the events that had just transpired.

On cross examination, Gary agreed that riding in the cab of a truck is safer than riding in the bed of a truck, and that James would have been safer if he had ridden in the cab of his truck instead of the cargo bed. Gary also agreed that James would not have been ejected from the truck if he had not been riding in the bed.

Gary further testified that the distance between the top of the folded boxes James was riding on and the bottom of the cargo bed was about twelve inches. Gary agreed with the assertion that James would have been safer if he had been riding on the floor of the cargo bed instead of riding on top of the boxes. However, Gary stated that the cargo bed was full, and that James did not have the opportunity to sit anywhere else in the bed of the truck that would have been lower.

Whiteside testified by video deposition, and stated that on the afternoon of the accident, he, Mario, and Gary were riding in Gary's truck, with James in the cargo bed, and that the Goins brothers were riding in the truck behind them. He stated that James opted to ride in the back of the truck because he, Gary, James, and Mario all lived in the same location, and the Goins brothers lived at another location. He said that James was a big man, and that it would have been "tight" to try and fit four people in the cab. Whiteside did not see any problem or danger with allowing an individual to ride in the cargo bed.

Whiteside testified that Gary pulled into the left northbound lane on Highway 271 because another eighteen wheeler was turning right onto the access road to Interstate 20. As the truck Whiteside was traveling in approached the intersection where Goldberg was located, Whiteside stated that he was "very aware" of Goldberg's location. He then noticed Goldberg's truck take "three little bouncing lunges forward and at that point, you know, that alone had put him basically, you know, halfway into our lane." When Whiteside saw this, he said that Goldberg was "coming out." He was concerned that they were going to hit Goldberg's truck because it was "out in the intersection." Gary swerved to the right, and then back to the left in order to avoid the concrete bridge supports. Whiteside then became concerned for James's safety because he was sitting on top of the folded boxes. Whiteside believed that the boxes were about six inches high at the time.

Whiteside stated that after Gary turned to the left, he saw James eject over the passenger side of the cargo bed, and land on his left shoulder. Whiteside got out and tried to catch up with Goldberg, who ended up stopping in front of a service station. After he talked with Goldberg, Whiteside went back to check on James.

On cross examination, Whiteside testified that it was common practice for someone to ride in the cargo bed of the truck when more than three persons were traveling in the same truck. Whiteside agreed with the assertion that riding in the cargo bed of a truck is not as safe as riding in the cab of a truck. He also stated that there was room in the Goins brothers' truck because there were only two people riding in that truck when the crew left Tyler.

Whiteside testified that the vehicle he was riding in was 65 feet from Goldberg's truck when he saw Goldberg drive into the left lane. He also stated that if his vehicle had kept going straight, it would have hit the front passenger side of Goldberg's truck.

On redirect, Whiteside testified that James never had any difficulty staying in the bed of the truck prior to Gary's evasive actions. He also stated that if Goldberg had not driven out into the left lane, Gary would not have had to swerve to evade a collision. Whiteside said that if there were four people riding in the cab of the truck, Gary would not have had the room to make the necessary maneuvers to avoid Goldberg's truck. With regard to the passengers in the Goins's truck, he could not recall whether Robinson had been in that truck. He knew that Robinson had been working with them that day, but he could not recall whether Robinson was riding with the Goins brothers.

Randy Loftin ("Loftin"), a highway trooper with the Texas Department of Public Safety, testified that he was the officer who investigated the August 19 accident. Referring to the accident report Loftin compiled after the accident, he stated that in 1996, it was not illegal for a person to ride in the back of a truck. ⁽²⁾ Loftin also testified that it was fairly common for persons to ride in the back of pickup trucks. With regard to the cause of the accident, Loftin said that "the big truck pulled out and the pickup swerved to avoid it, ejecting the occupant in the back of the pickup truck." He also stated that Dicks had the right-of-way while traveling in the left northbound lane, and that Goldberg was required to yield to northbound traffic on Highway 271. Loftin testified that the cause of the accident was Goldberg's failure to yield the right-of-way to Gary's truck. At the time he investigated the accident, Loftin did not place any fault or blame on Gary or James.

On cross examination, Loftin said that it was dangerous for a person to ride in the back of a pickup truck and that James would have been safer if he had ridden in the cab of the truck. However, Loftin testified that he did not uncover any evidence that led him to believe that Goldberg did not pull out in front of Gary's truck.

Goldberg also testified as an adverse witness, and said that he has been a truck driver for 33 years. Goldberg stated that on the day of the accident, his truck and trailer weighed between 50,000 and 60,000 pounds. When asked how a half-ton pickup with a trailer would have survived in a collision with his truck, Goldberg replied, "He wouldn't fare too good." Goldberg also agreed that if he were Gary, he would consider it reasonable and prudent to avoid a collision with his truck. He further stated that he had never seen anything wrong with riding in the back of a truck, until the legislature made it illegal.

On the day of the accident, Goldberg stated that he saw James riding in the back of Gary's truck, and that James was sitting on top of a "high load." Goldberg said that the evasive actions Gary described in his testimony were reasonable and prudent. Goldberg further testified that he had waited at the intersection that ran into the northbound lanes of Highway 271 for about a minute to a minute and a half, waiting on the other eighteen wheeler to make a right-hand turn. He said that he moved his foot off the brake pedal and was going to put it on the accelerator and release the clutch. Before he could do that, Gary's truck drove in front of him. However, the driver of the other eighteen wheeler had already motioned to him to go across the northbound lanes of Highway 271, so he started across.

Although he did not say so in his deposition, Goldberg testified that he looked south to check for oncoming northbound traffic. When the driver of the other eighteen wheeler motioned for Goldberg to cross, Gary "shot by right in front of" Goldberg. He said that he never saw Gary until Gary's truck traveled in front of him. Goldberg agreed that it was his responsibility to look and make sure there was no oncoming traffic, regardless of the angle of his truck in relation to the oncoming traffic. He also agreed that the failure to look before crossing a highway is not a reasonable and prudent action, and if a driver in his situation pulled out without looking, that would not be a reasonable and prudent action either. Goldberg further stated that he was not aware of anything that James did that caused or contributed to the accident.

On cross examination, Goldberg testified that after the driver of the eighteen wheeler motioned for him to come through the intersection, he took his foot off of the brake, started to move it toward the accelerator, and was going to release the clutch. Goldberg further testified that his wheels did not move and that he saw Gary's truck travel straight in front of his truck, "just almost right against [his] cab." He stated that his truck did not roll at all before Gary drove in front of him, and that Gary's assertion that the wheels on his truck had turned was "just wrong."

Although Goldberg testified that it was possible that Gary and Whiteside saw his cab raise, that did not indicate that his wheels were rolling. By the time Gary went past Goldberg, Goldberg "was in motion, so [he] just put [his] foot on the accelerator and got on through the intersection and went up to the top of the hill and stopped." He did not know that James had been ejected from Gary's truck.

On redirect, Goldberg stated that he did not see Gary take any evasive action, but acknowledged that "something had to happen to throw [James] out of the pickup." He further testified that Gary "could have been reacting to a dog running across the road" or a "cheetah or lion," but agreed that there was no evidence of a dog or cheetah at the scene of the accident. After he saw Gary's truck go by, Goldberg saw the truck driven by Nick apply its brakes to keep from hitting the side of Goldberg's truck. Goldberg acknowledged that he did not see the second truck and that he pulled out in front of it "because [he] was already in motion by then. There was no choice but to go on."

Jill Dicks, James's wife, stated that she and James were married on February 14, 1991, and that they had two boys. Before the accident, they all went on camping and fishing trips together, and James and the boys would play basketball and football together. James would also help one of the boys train for track meets. She testified that James had no physical difficulties or other health problems before the accident, and that he had always been employed during their marriage.

After the accident, Jill went to East Texas Medical Center in Tyler, where James was receiving care. She stated that James had a deep cut on his left hand that "went just about to the bone" and that his left elbow, wrist, and his right elbow, as well as right upper arm, were injured. James had to receive special treatment to get the gravel out of his wounds, which were treated much like burn injuries. The next morning, James was complaining of foot pain. The doctors then x-rayed his foot, and found that he had broken it.

When James went home, Jill took care of his wounds. She had to remove the dressings from his wounds three times a day, put James in the shower in a chair, and scrub the wounds with an antibacterial solution. James could not walk at the time, so he used a wheelchair to get around. Jill also had to put ointments on the wounds and re-dress them.

The wounds healed after about three months; however, Jill stated that James's skin is very thin on his shoulders where the wounds were, and that he has to wear the strongest sunblock. If he does not, then he will get blood blisters on his shoulders. James has to keep covered at all times or he will get blood blisters from the sun and the heat. Jill said that James does not presently have any problems with his foot.

Jill testified that James had to have knee surgery in August of 1997. He progressed from using a wheelchair to a walker, and then to crutches. About five weeks after the surgery, James's treating physician released him to go back to work, but he was restricted from bending, stooping, or climbing. James went back to work for three or four days, but when he came home from work on those days, his knee was swollen and painful. After working those days, James could not go back to work.

In April of 1997, James had an appointment with Dr. William Schreiber, one of his treating physicians. Jill stated that a collection person for Dr. Schreiber was demanding payment before he saw James again, and James missed that appointment because he could not afford to pay Dr. Schreiber's bill. After working out a payment arrangement, Dr. Schreiber agreed to see James in August. Dr. Schreiber examined James and released him, subject to the same restrictions. Dr. Schreiber did not schedule any more appointments to see James after that visit.

Jill testified that after Dr. Schreiber released James, he looked for work but could not find any that accommodated his restrictions. James finally found a job with Three D Janitorial Service, the company Jill was working for at the time, in the summer of 1998. The two of them were not making enough money, so Jill took another job in May of 1998, working the graveyard shift at Wal-Mart from 10:00 p.m. to 7:00 a.m. After four or five months of working two jobs, Jill stopped because she was exhausted. She stated that James was pushing himself to work as much as six hours a day at times, even though his knee was swelling. At some point thereafter, James had to quit working six hours a day because his knees were swelling too badly. After a few months, James went back to work at Three D Janitorial Service, and he has worked there since.

Based on the medical records and bills obtained from James's health care providers, Jill testified that the total amount of James's medical expenses as a result of the accident was $24,748.83. Jill also stated that the records did not include any charges for prescriptions or for the medical supplies necessary to care for James's wounds, such as bandages and ointment. She did not keep any records of those expenses, but estimated that when she bandaged him, it took anywhere from five to six boxes at a time, at $5.00 to $6.00 per box.

On cross examination, Jill testified that at the time of trial, James's knee still hurt. Unless James gets in the sun, the road rash scars do not hurt him. Jill also stated that James is the type of person who will not go to the doctor unless she makes him go. She said that even though the knee surgery was successful because James could walk, he is not the same man he was before the accident. In light of Dr. Schreiber's restrictions, Jill testified that James is not able to perform his job at Sawdust Construction. She also stated that by November of 1997, James had not looked into any type of job training, but all he has ever done is manual labor. On redirect, Jill stated that there is no additional treatment for James's scarring or to keep him from blistering when he gets in the heat.

Dr. William Schreiber testified by video deposition, and stated that James was first seen by one of his partners, Dr. Gary Goodfried, on September 4, 1996. Dr. Goodfried then referred James to Dr. Schreiber, who saw James on September 11. Dr. Schreiber diagnosed James as suffering from a complete tear of the anterior cruciate ligament and torn knee cartilage in his right knee. Dr. Schreiber performed surgery on James on January 17, 1997 to repair the ligament and cartilage. In February, Dr. Schreiber saw James again and remarked that James's knee was doing very well. On February 24, Dr. Schreiber examined James's knee and told James that he could perform light duty work, but he could not do any climbing. He examined James again on August 19, and noticed that James had a bit of thickening of the soft tissue over the kneecap where the graft had been placed. He also noticed that James "probably formed a scar in reaction to healing the surgical wound" because after that type of graft, a person cannot kneel on the front of the knee due to the pain. At that point, Dr. Schreiber believed James could work, but not in a job that required frequent squatting, kneeling, or climbing. At the time of his deposition on July 10, 2001, Dr. Schreiber had not examined James since the August 19, 1997 exam. He also stated that he did not prescribe physical therapy for James after the surgery because James "got the motion that [he] looked for." However, Dr. Schreiber testified that if James had come back after three months, he would have prescribed physical therapy for him. Because he did not go to any physical therapy, James can "have weakness in his leg from having the injury," and if a patient does not work to get his strength back, "he [hasn't] done everything he can to help himself."

Dr. Schreiber further testified that knee reconstruction surgery puts a knee back to a stable position. However, that does not mean that the knee is returned to its prior condition. James lost part of his knee cartilage, and sometimes people later develop arthritis after an anterior cruciate ligament tear. Dr. Schreiber warned James that there was a risk he would develop arthritis after the surgery. During their last visit, James told Dr. Schreiber that he was having trouble kneeling. Dr. Schreiber said that this problem was common for the procedure he had undergone.

Dr. Schreiber stated that the pain may eventually go away because it takes about a year to recover from this type of major injury. He did not criticize James for not returning after August of 1997 because he did not tell him to return. Based on what he saw the last time he examined James, Dr. Schreiber believed that it would be painful for James to "squat and crawl and stoop. It would be dangerous for him to be climbing on ladders and roofs." At the time he placed the restrictions on James, Dr. Schreiber believed that James would build up his strength enough to use his legs on a continuous basis. He did not place any permanent restrictions on James's work.

Dr. Schreiber was also asked about James's records from Dr. Thomas Taylor, an orthopedist that James was referred to by the Texas Rehabilitation Commission. Dr. Taylor examined James on December 28, 1999, and found that James had some looseness in the knee, as well as some degenerative changes. This meant that he had arthritic changes in the knee, which can happen after an anterior cruciate ligament tear. Dr. Schreiber stated that the arthritis is the result of the injury to the knee, not the surgery. He also said that the delay in treatment did not cause any problem in James's condition, and that the problems observed by Dr. Taylor are a progression of his condition. Dr. Schreiber testified that James would continue to have some swelling, pain, aching, and difficulty in bending without pain. He also stated that this condition would be one that James is going to have to live with, that the condition will likely worsen with time and aging, and that James would be even more limited in the future. Because of the worsening condition, Dr. Schreiber testified that, based on reasonable medical probability, James will need a total knee replacement at some point in the future. Except for cycling, physical activities will be painful for James.

On redirect by Goldberg and Pacer's counsel, Dr. Schreiber stated that he believes James is able to maintain full-time employment. Dr. Schreiber testified that everyone will probably experience signs of arthritis later on in life. However, Dr. Schreiber could testify to a reasonable medical probability that James's condition has worsened since he last saw him in August of 1997 because "thirty-four-year-old people don't usually have degenerative arthritis in their knee." In his opinion, it is probable that James's arthritis is linked to the accident. He also agreed that persons who have knee surgery may develop arthritis in that knee, which may warrant knee reconstruction. Everett Dicks ("Everett"), James and Gary's father, stated that before the accident, James helped him at his lawnmower repair business in order to earn extra money. He said that James was not lazy or content just lying around and doing nothing. Before the accident, James played ball with his kids, but could not do that after the accident. He said that James previously went fishing all of the time, but had to quit fishing after the accident because he "can't walk up and down them creek banks like he used to." Everett also stated that the accident has had a drastic effect on James's life because "[i]t's changed his life the way he has to do things from what he used to do."

On cross examination, Everett said that James would earn anywhere from $40 per week to $100 per week while working at his lawnmower repair shop. He also said that James would probably be able to go fishing if he wanted to because he was physically able to use a rod and reel. It just hurt James too much to climb up and down the banks when he went fishing for perch.

Dr. Thomas Taylor, an orthopedist who also treated James, testified that James told him that he was unable to kneel on his knee, had difficulty running, and his knee gave way occasionally, which is not uncommon after the type of surgery James had. He stated that when he examined James in December of 1999, he found "noticeable laxity" in James's knee. Dr. Taylor ordered x-rays of James's knee, and found that the knee has some early degenerative changes, as well as "a little squaring off of the joint, which can be consistent with a very early bone spur formation." He testified that it is uncommon to see such a condition in a thirty-four year-old's knee, and that the changes were probably attributable to his injury. Dr. Taylor examined James again on August 30, 2001, and his impression of James's knee was the same as it had been before. James's knee still had a bit of laxity, but he was able to straighten his knee all the way out.

Dr. Taylor expressed his opinion that James does not have a normal knee because he has some instability in it and has more arthritic changes in the knee than is normal for a person James's age. Dr. Taylor believes that as the years go by, James will continue to have some difficulty with his knee and will develop arthritis in the knee, a condition that is irreversible. Dr. Taylor thinks that if a person with James's condition did a lot of stooping, climbing, and squatting, that would hasten the development or the worsening of arthritis. He also stated that he thinks James will be a candidate for a total knee replacement sometime in the future. After a total knee replacement, a patient needs six weeks to regain his or her motion. The total range of motion is never recovered after such an operation, but with any luck, the knee is better than one that has an advanced stage of arthritis. Dr. Taylor said that he believed the restrictions Dr. Schreiber placed on James were reasonable and that there was no reason to change those restrictions. Dr. Taylor stated that James's knee problem will make it difficult to take part in leisure or recreational activities.

On cross examination, Dr. Taylor stated that rehabilitation following anterior cruciate ligament surgery is important, but he did not know whether James had undergone any physical therapy for his knee. In Dr. Taylor's opinion, a patient who does not exercise at all after such a surgery will be more likely to have stiffness and some degree of laxity. Part of the laxity that he saw in James's knee was attributable to James's failure to perform rehabilitation exercises after the January 1997 surgery. Dr. Taylor stated that the degenerative changes in James's knee are consistent with normal wear and tear, but that the changes are showing up a little earlier than usual in a normal thirty-four-year-old person. Dr. Taylor could not say with absolute certainty that those degenerative changes resulted from the accident. He could, however, state that his findings showed some very early degenerative changes, but the changes had not worsened from the time Dr. Taylor first saw James in December of 1999 to August of 2001. When Dr. Taylor last examined James, he did not think that additional surgery was necessary at that point in time, but he thought that James was more at risk than the average person to develop arthritis sooner. He also thought that it would be speculative to pick a time in the future when James would possibly need a total knee replacement. On redirect, Dr. Taylor testified that he did not have any information to believe that James failed to follow any of Dr. Schreiber's instructions after the surgery that affected his recovery from the injury. He also does not think it is likely that James would be having these problems if he had not been injured in the first place. Dr. Taylor said that knee swelling in and of itself can cause pain and that a lot of people with similar conditions state that their knee swells after standing. He also testified that James's knee has not improved over time and is not likely to improve, but is more likely to worsen over a period of time.

James testified next, and stated that he had worked as a manual laborer at a variety of jobs for minimum wage for most of his life. He quit school in the ninth grade, and never obtained a GED. Before the accident, James was a healthy man, and had gone to the doctor one time after he cut his foot. In his spare time, he, Jill, and their boys would fish or swim, go out in the yard, play football, or basketball, and ride bicycles up and down the road. When he went fishing, he fished from the bank.

On the day of the accident, James stated that he rode in the back of Gary's truck because "there wasn't but two trucks left so there was three in one cab of the truck and three in the other cab, and the only place to ride was in the back." He did not mind riding in the cargo bed of Gary's truck because he had ridden back there on previous occasions when there were too many people in the cab of the truck. When he was in the back of Gary's truck on the day of the accident, he was sitting on a stack of three to five folded boxes, that stacked up "about maybe six or seven inches tall, twelve inches, something like that." The crew did not put the boxes on the trailer that Gary was pulling because the boxes would have blown out. James rode on top of the boxes in order to keep them from blowing out. When asked if he had any other way to get home, James replied, "I could have called somebody to come get me, but they probably wouldn't." He also stated that it was not possible for him to ride in the cab of the truck with the other three persons because everyone would have been crammed in, and Gary would not have been able to drive the truck.

As James was riding in the cargo bed, he was sitting in the middle of the passenger side of the truck, facing toward the traffic behind them. His back was against the tool box that was mounted to the bed of the truck toward the cab, and he was holding onto the siderail on his left. At some point, James felt the truck "yank" or swerve, and "it kind of pulled [him] back over to the left and that's when [he] flew out." There were two swerves that occurred "real fast," and it was the second swerve that threw James out of the cargo bed of Gary's truck. Until the swerves occurred, James had no trouble staying in the bed of the truck. After he was ejected from the cargo bed of the truck, all James could remember was that he talked to an ambulance driver, and that he was "hurting real bad all over."

Before Dr. Schreiber performed the surgery on James's knee, it "popped out" almost all of the time. After the surgery, James said that his knee tries to pop out, "but most of the time [he] catch[es] it." He testified that his left shoulder was also injured after the accident, and that the shoulder still aches and wakes him up in the middle of the night. His road rash scars are very thin, and if he gets out in the sun, blood blisters develop. James also has scars on his elbows, hand, and stomach. The scars on his shoulders itch when they get hot, and when he scratches them, his fingernails cut his skin. When he goes outside, he wears 45 sunblock and shirts that the sun cannot penetrate. The knee surgery Dr. Schreiber performed made his knee better, but it still swells and aches if he stays on his leg for a certain period of time. He also stated that Dr. Schreiber told him to do leg lifts and knee bends, and that he did and continues to do those exercises.

James testified that he cannot work or play with his kids in the same manner as before the accident. He wears a knee brace all day long every day to stabilize his knee. James said that after the surgery, Dr. Schreiber told him not to bend, kneel, get on his knees, or climb ladders. He also said Dr. Taylor told him that he would have to have a knee replacement at some point in the future. When Dr. Schreiber released him to go back to light duty work, James tried to work for Gary, taking out trash and cleaning out dishwashers in repossessed trailer houses. He performed this job for a couple of days, but the kneeling "got to [him] to where [he] couldn't do it so [he] had to quit." He tried to find other jobs, but no one would hire him. At the time of trial, he was employed with Three D Janitorial, a job he obtained in 1998. When he first started working, he was cleaning businesses six or seven days a week. He was able to perform this job for a while, but he had to quit because his knee started swelling. About two months later, he went back to work at Three D Janitorial Service, but he worked fewer hours than he had before. When he works for Everett at the lawnmower repair shop, James sits down while he works. With the physical restrictions James has now, he cannot do the jobs that he did before the accident.

On cross examination, James testified that he probably would not have been ejected from the truck had Gary not swerved to the left. He also had no idea if Goldberg had pulled out in front of Gary's truck. James agreed with the assertion that riding in the cab of the pickup truck is safer than riding in the cargo bed, and that he would not have been ejected had he been riding in the cab. He further agreed that he would have been safer if he had been sitting on the floor of the cargo bed instead of on top of the folded boxes.

James stated that he does not intend to seek any further medical treatment for the road rash scars on his shoulders. He also does not have any future appointments for medical care. In James's opinion, the surgery performed by Dr. Schreiber was not a complete success because "he didn't put it back the way it was." James takes only aspirin for his pain and does not take any prescription pain medication. When asked about his employment history, James testified that he did not work from 1997 to 1998 because he could not find any employer that would hire him with his physical limitations. After James testified, his side rested. Gary then moved for a directed verdict, contending that no evidence existed to prove his negligence on the day of the accident. The trial court granted the motion.

Goldberg and Pacer then began their case by recalling Goldberg to testify. Goldberg stated that in his experience, when a truck with a trailer attached pulls to the right, the trailer will swerve to the left. He questioned Gary's testimony because if Gary had swerved to the right as he said he did, then Gary's trailer would have swerved to the left and hit Goldberg's truck. Therefore, in Goldberg's opinion, Gary did not swerve to the right because the trailer Gary was pulling did not hit the front of his truck.

On cross examination, Goldberg testified that he had no scientific basis for his opinion, and that he did not see Gary swerve because he never saw Gary before he went by him. Goldberg rested, and each side argued its case to the jury. When the jury returned, it found that James was not negligent, and attributed one hundred percent of the cause of the accident to Goldberg. The jury also awarded James $85,000.00 for past physical pain and mental anguish, $200,000.00 for future physical pain and mental anguish, $42,000.00 for past lost earning capacity, $180,000.00 for future lost earning capacity, $15,000.00 for past disfigurement, zero for future disfigurement, $15,000.00 for past physical impairment, zero for future physical impairment, $30,000.00 for past medical care, and $40,000.00 for future medical care.

Contributory Negligence  

In their first issue, Goldberg and Pacer contend that the evidence is legally and factually insufficient to support the jury's failure to find any contributory negligence on the part of James Dicks.

Contributory negligence contemplates an injured person's failure to use ordinary care in regard to his or her own safety. Kroger Co. v. Keng, 23 S.W.3d 347, 351 (Tex. 2000). This affirmative defense requires proof that the plaintiff was negligent and that the plaintiff's negligence proximately caused his or her injuries. Id. Because comparative responsibility involves measuring the parties' comparative fault in causing the plaintiff's injuries, it necessitates a preliminary finding that the plaintiff was in fact contributorily negligent. Id. At trial, the defendant bears the burden of proof, by a preponderance of the evidence, on contributory negligence. Carney v. Roberts Investment Co., Inc., 837 S.W.2d 206, 208 (Tex. App-Tyler 1992, writ denied). In explaining the concept of contributory negligence, the Texas Supreme Court in Parker v. Highland Park stated that

[t]here are many instances in which a person of ordinary prudence may prudently take a risk about which he knows, or has been warned about, or that is open and obvious to him. His conduct under those circumstances is a matter which bears upon his own contributory negligence. . . . One's conduct after he is possessed of full knowledge, under the circumstances may be justified or deemed negligent depending upon such things as the plaintiff's status, the nature of the structure, the urgency or lack of it for attempting to reach a destination, the availability of an alternative, one's familiarity or lack of it with the way, the degree and seriousness of the danger, the availability of aid from others. . . . Those are matters which bear upon "the reasonableness of an actor's conduct in confronting a risk under principles of contributory negligence."  

Parker v. Highland Park, Inc., 565 S.W.2d 512, 520 (Tex. 1978). The court further stated that even where a person has knowledge, actual or imputed, of a danger or condition, a question of fact is presented unless it can be said, as a matter of law, that a person of ordinary care would not have incurred the risk. Id. (citing McAfee v. Travis Gas Corp., 137 Tex. 314, 320, 153 S.W.2d 442, 447 (Tex. 1941)). On appeal, we review all of the evidence in the record that is relevant to the issue of contributory negligence. Id.

Legal Sufficiency  

Goldberg and Pacer argue that riding in the bed of a truck is an open and obvious danger as a matter of law; therefore, the fact that James was riding in the bed of Gary's truck proves that he was contributorily negligent as a matter of law. To support this proposition, Goldberg and Pacer cite Roland v. DaimlerChrysler Corp., a product liability case based on the manufacturer's failure to warn of the danger posed by riding in the bed of an open truck. Roland v. DaimlerChrysler Corp., 33 S.W.3d 468, 469 (Tex. App.-Austin 2000, pet. denied). In Roland, the plaintiff was injured after being ejected from the back of a truck that was manufactured by DaimlerChrysler. The trial court granted summary judgment to DaimlerChrysler on the basis that it owed no duty to Roland to warn of any hazards of riding in the back of a truck because such an action is an open and obvious danger as a matter of law. Id. at 469-70. In affirming the trial court's grant of summary judgment, the court stated that

[in an affidavit, an expert for Roland contends that] Texans continue to ride in the back of trucks because it is a "Texas way of life." This, however, does not tend to show that Texans are ignorant of the risks involved. This evidence neither supports nor undermines their conclusion. People often do dangerous things for reasons we may not understand, while fully appreciating the risks involved. Its open nature and the lack of restraining devices in the bed of a pickup truck make it immediately apparent to the ordinary and reasonable observer that the potential for ejection exists for anyone riding there. We firmly believe that people have a sufficient intuitive grasp of the basic laws of physics to ensure that if one is in an open and unprotected area of a truck, the consequences of a sudden start, stop, or turn are understood and appreciated as a matter of common knowledge.  

Id. at 470. Goldberg and Pacer also cite this court's opinion in Arkansas Freightways, Inc. d/b/a American Freightways v. Price, for the proposition that James's riding in the back of Gary's truck constitutes contributory negligence as a matter of law. In Price, James Allen Price ("Price") was riding in the trunk of a vehicle that was hit by an Arkansas Freightways truck. Arkansas Freightways, Inc. d/b/a American Freightways v. Price, No. 12-97-00353-CV, slip op. at 12 (Tex. App.-Tyler 1999, pet. denied) (not designated for publication). Price was severely hurt in the accident, and sued Arkansas Freightways for his injuries. Following a jury verdict in his favor, Arkansas Freightways appealed, contending, inter alia, that the jury's finding that Price was not negligent was against the great weight and preponderance of the evidence. We agreed with Arkansas Freightways, and reversed the trial court's judgment because Price's position in the trunk was a substantial factor in producing his injuries. We also held that "[i]t is common knowledge that car trunks are not designed to be occupied by passengers." Id.

The instant case is markedly different from Roland and Price. Roland was a products case based on the manufacturer's failure to warn of open and obvious dangers. Price was riding in the portion of a vehicle that was not designed to be occupied by passengers at any time. Here, James sued Goldberg and Pacer because of Goldberg's failure to act as a reasonably prudent person; he did not sue the manufacturer of Gary's truck because it failed to warn him of the dangers of riding in the back of a truck. Moreover, unlike Price, the evidence in the instant case showed that a person riding in the back of a pickup truck is a common occurrence.

The case of Kerby v. Abilene Christian College is similar to the case at hand. In Kerby, a school bus struck a linen delivery truck, which caused the driver of the delivery truck to be ejected through the sliding door of the truck that had been left open. Kerby v. Abilene Christian College, 503 S.W.2d 526, 527 (Tex. 1974). Much like the instant case, the defendant in Kerby argued that the driver was contributorily negligent because he was driving with his door open. Id. The court of appeals reversed the trial court's judgment negating any finding of contributory negligence on the part of the plaintiff. In reversing the court of appeals, the supreme court held as follows:

We draw a sharp distinction between the negligence contributing to the accident and negligence contributing to the damages sustained. Contributory negligence must have the causal connection with the accident that but for the conduct the accident would not have happened. Negligence that merely increases or adds to the extent of the loss or injury occasioned by another's negligence is not such contributory negligence as will defeat recovery.   

Id. at 528.

Most of the witnesses who testified at trial, including Goldberg and Trooper Loftin, acknowledged that it was common for a person to ride in the back of a pickup truck. No law existed at the time of the accident, nor does it exist today, that forbids adults from riding in the back of a pickup truck. Although James acknowledged that riding in the back of Gary's truck was dangerous, but for the conduct of Goldberg, the accident would not have happened. We cannot say that James's act of riding in the back of Gary's truck was contributory negligence as a matter of law. Therefore, the evidence is legally sufficient to support the jury's finding that James was not contributorily negligent.

Factual Sufficiency  

Even though witnesses who were asked testified that it was common to ride in the cargo bed of the truck, those witnesses also acknowledged that it was safer to ride in the cab of the truck. On the day of the accident, James and Gary testified that James could not have ridden in the cab of either truck because there was no room for him. Only Whiteside testified that there may have been room for James to ride in the other truck. James testified that he had ridden in the back of Gary's truck on numerous prior occasions and had experienced no trouble when doing so. James was sitting down in the bed of the truck, holding onto the siderail. He also stated that it was necessary for him to ride in the back of the truck in order to hold down the boxes and keep them from flying out of the truck. James testified that he had no problems remaining in the bed of Gary's truck until Gary took the evasive action to avoid a collision with Goldberg's truck. He also stated that had he been in the cab of the truck, Gary would not have had room to perform the evasive action necessary to avoid the collision with Goldberg's truck.

When the jury is presented with conflicting evidence, it may choose to believe one witness and disbelieve others, or it may resolve inconsistencies in the testimony of any witnesses. St. Louis S.W. Ry. Co. v. King, 817 S.W.2d 760, 762 (Tex. App.-Texarkana 1991, no writ). As the trier of fact, the jury is the sole judge of the credibility of the witnesses and the weight to be attached to their testimony. Id. Although the jury could have determined that James was contributorily negligent because he understood the dangers of riding in the back of Gary's truck, there is also evidence supporting the jury's failure to find contributory negligence and that Goldberg was one hundred percent negligent. Id. Considering all of the evidence, we cannot conclude that the jury's failure to find James negligent is against the great weight and preponderance of the evidence. Accordingly, Goldberg and Pacer's first issue is overruled.

Foreseeability  

In their second issue, Goldberg and Pacer argue that the evidence is legally and factually insufficient to establish that James's ejection out of the cargo bed of Gary's truck was the foreseeable result of any conduct by Goldberg. Foreseeability requires that the actor, as a person of ordinary intelligence, would have anticipated the danger that his negligent act created for others. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995). Foreseeability does not require a person to foresee the particular accident or injury that, in fact, occurs. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 550-51 (Tex.1985). Foreseeability requires only that (1) the injury be of such a general character as might reasonably have been anticipated, and (2) the injured party be so similarly situated in relation to the wrongful act that the injury to her or to someone similarly situated might reasonably have been foreseen. Id. (citing Carey v. Pure Distrib. Corp., 133 Tex. 31, 124 S.W.2d 847, 849 (1939)). The question of foreseeability asks whether the injury might reasonably have been contemplated as a result of the defendant's conduct. Doe, 907 S.W.2d at 478.
Goldberg and Pacer admit that the swerving of Gary's truck was a foreseeable response to Goldberg's actions. However, they contend that it could not have been reasonably foreseen that the conduct of its driver at this intersection would lead to James's ejection and subsequent injuries. Gary testified that he saw Goldberg's truck "raise up" and "come on out in front of" him. Whiteside also saw Goldberg's truck pulling out from the yield sign and yelled, "It's coming out!" The evidence supporting the jury's finding that Goldberg was negligent demonstrates that Goldberg failed to yield the right-of-way to Gary's truck on the day of the accident. Because Goldberg failed to yield the right-of-way, Gary had to take evasive action. Although the exact sequence of events, namely James being ejected out of the back of Gary's truck, may not have been foreseeable by Goldberg, the general danger of someone being injured as a result of Goldberg's failure to yield the right-of-way was foreseeable. See Military Highway Water Supply Corp. v. Morin, 114 S.W.3d 728, 738 (Tex. App.-Corpus Christi 2003, no pet.).

After considering only the probative evidence and inferences supporting the jury's finding, and disregarding all evidence and inferences to the contrary, we hold that more than a scintilla of evidence exists to support the jury's finding of foreseeability. We also conclude that the jury's finding of foreseeability is not against the great weight and preponderance of the evidence. Accordingly, Goldberg and Pacer's second issue is overruled.  

Future Mental Anguish and Physical Pain  

Goldberg and Pacer argue in their third issue that the evidence is legally and factually insufficient to support the jury's award of future mental anguish and physical pain. We disagree.

Matters of past and future physical pain, mental anguish, and physical impairment are particularly within the jury's province when determining an award of damages. Marvelli v. Alston, 100 S.W.3d 460, 482 (Tex. App.-Fort Worth 2003, pet. denied). By definition, future mental anguish has not yet occurred, and, therefore, is speculative and based on probabilities. Southwestern Bell Telephone Co. v. Garza, 58 S.W.3d 214, 236 (Tex. App.-Corpus Christi 2001, pet. granted). Damages for future mental anguish are recoverable "if there is a reasonable probability that they will be suffered in the future." Lubbock County v. Strube, 953 S.W.2d 847, 857 (Tex. App.-Austin 1997, pet. denied); Hicks v. Ricardo, 834 S.W.2d 587, 590 (Tex. App.-Houston [1st Dist.] 1992, no writ). Future mental anguish is measured by the same standard as past mental anguish and may not be awarded without either "direct evidence of the nature, duration, or severity of [plaintiff's] anguish, thus establishing a substantial disruption in the plaintiff's daily routine," or other evidence of "'a high degree of mental pain and distress' that is 'more than mere worry, anxiety, vexation, embarrassment, or anger.'" Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996). Likewise, damages to be awarded for physical pain in the future are necessarily speculative, and it is peculiarly within the province of the jury to set the amount of such damages. Strahan v. Davis, 872 S.W.2d 828, 834 (Tex. App.-Waco 1994, writ denied). There must be some objective evidence that an injury will continue to adversely affect the party claiming such damages. Id.

Gary testified that before the accident, James played ball with his and other kids at family holidays, and that James had no physical impairments that prevented him from performing these activities. He also stated that James was a hard worker. Since the accident, Gary stated that James "can't do it," meaning that he "just can't participate" in the family gatherings because his knee is too painful. After James got hurt, the doctor released him to light-duty work. James could not stay up on his leg for very long, so Gary created a job in which James cleaned mobile homes after Gary and his crew performed work on them. James tried this work for about two days and could not stand the pain from stooping and squatting.

Whiteside stated that when he went back to check on James after James had been ejected, James was "skinned up from head to toe." He also said that when James came back to work with them after the accident, James had difficulty staying on his feet for extended periods of time.

Jill stated that the skin on James's shoulders is very thin where the wounds were, and that he has to wear the strongest sunblock. If he does not, he will get blood blisters on his shoulders. James has to keep covered at all times or he will get blood blisters from the sun and the heat. Jill said that James does not presently have any problems with his foot.

Dr. Schreiber testified that knee reconstruction surgery puts a knee back to a stable position, but does not restore a knee to a completely normal condition. James lost part of his knee cartilage, and sometimes people later develop arthritis after an anterior cruciate ligament tear. Dr. Schreiber warned James that there is a risk that he will develop arthritis after the surgery. He testified that James will continue to have some swelling, pain, aching, and difficulty in bending without pain. He also stated that this condition will be one that James is going to have to live with, and will likely worsen with time and aging. According to Dr. Schreiber, James will be even more limited in the future. Because of the worsening condition, Dr. Schreiber testified that, based on reasonable medical probability, James will need a total knee replacement at some point in the future. Dr. Schreiber could testify to a reasonable medical probability that James's condition has worsened since he last saw him in August of 1997 because "thirty-four-year-old people don't usually have degenerative arthritis in their knee." In his opinion, it is probable that James's arthritis is linked to the accident.

Dr. Taylor also believes that James will continue to have some difficulty with his knee and will develop arthritis in the knee, a condition that is irreversible. Dr. Taylor thinks that if a person in James's condition did much stooping, climbing and squatting, the development or the worsening of arthritis would be hastened. He also stated that he thinks James will be a candidate for a total knee replacement sometime in the future.

James testified that he is still in pain from the accident and that he cannot take part in the same activities he used to, especially with his boys. He also stated that his injuries limit the jobs he can do because he cannot stay on his leg for extended periods of time.

Because there is more than a scintilla of evidence that James's condition will worsen over time and that he will require a total knee replacement in the future, we hold that the evidence is legally sufficient to support the jury's award of future mental anguish and physical pain. We also hold, after reviewing all of the evidence, that the jury's award is not against the great weight and preponderance of the evidence. Therefore, Goldberg and Pacer's third issue is overruled.

Past Medical Expenses

  In their fourth and final issue, Goldberg and Pacer argue that the evidence is legally and factually insufficient to support the award of $30,000.00 for past medical expenses because the evidence adduced at trial demonstrates that the total amount of medical expenses James incurred is $24,748.83. We agree.

A claim for medical expenses must be supported by evidence that such expenses were reasonably necessary for the plaintiff to incur as a result of the injuries suffered. See Rodriguez-Narrea v. Ridinger, 19 S.W.3d 531, 532 (Tex. App.-Fort Worth 2000, no pet.) (citing Six Flags Over Texas, Inc. v. Parker, 759 S.W.2d 758, 760 (Tex. App.-Fort Worth 1988, no writ)). Proof of amounts charged or paid is not proof of reasonableness. Id. In addition,   evidence that medical expenses are reasonable and customary is no evidence those medical expenses were reasonably necessary. Rivas v. Garibay, 974 S.W.2d 93, 96 (Tex. App.-San Antonio 1998, pet. denied). A plaintiff may prove medical expenses are reasonable and necessary either by presenting expert testimony, or by submitting affidavits in compliance with section 18.001 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 18.001 (Vernon 2003); Rodriguez-Narrea, 19 S.W.3d at 532.

In the instant case, the only evidence of James's reasonable and necessary medical expenses was a summary of the medical expenses provided to James by affidavit from his medical providers. That summary showed that the total amount of James's medical expenses is $24,748.83. Therefore, the evidence is legally and factually insufficient to support the jury's award of $5,251.17 more than the amount that was proved to be reasonable and necessary. Accordingly, Goldberg and Pacer's fourth issue is sustained.

Conclusion

We hold that the evidence is legally and factually sufficient to support the jury's findings that Goldberg's negligence proximately caused the accident and that James was not contributorily negligent. The evidence is also legally and factually sufficient to support the jury's award of future mental anguish and physical pain. However, the evidence is legally and factually insufficient to support the jury's award of $5,251.17 more than the amount that was proved to be reasonable and necessary. Accordingly, we modify the judgment of the trial court to reduce the damage award for past medical expenses from $30,000.00 to $24,748.83. See Picon Transp., Inc. v. Pomerantz, 814 S.W.2d 489, 491 (Tex. App.-Dallas 1991, writ denied).

As modified, the judgment of the trial court is affirmed.

DIANE DEVASTO

Justice

Opinion delivered February 11, 2004.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.  

(PUBLISH)

1.

The total damage award was $607,000.00 plus $285,372.80 in prejudgment interest; therefore, James's total recovery was $892,372.80.

2.

Loftin also stated that the law has changed, and that "[y]ou can't ride in the back of a pickup truck at all unless it's your main source of transportation." But see Tex. Transp. Code Ann. § 545.414 (Vernon 2003) (a person commits an offense if the person operates an open-bed pickup truck or an open flatbed truck or draws an open flatbed trailer when a child younger than 18 years of age is occupying the bed of the truck or trailer).