Preilla Atwood and Chelsey Atwood v. Christine Pietrowicz ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00010-CV
PREILLA ATWOOD AND APPELLANTS
CHELSEY ATWOOD
V.
CHRISTINE PIETROWICZ APPELLEE
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FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellants Priella Atwood and her daughter Chelsey Atwood (collectively,
the Atwoods) were rear-ended by Appellee Christine Pietrowicz in 2006, an
accident for which Pietrowicz has conceded liability. A jury trial was held on the
issue of damages. The jury awarded the Atwoods damages for physical pain
and mental anguish, medical care expenses, and loss of earning capacity.
1
See Tex. R. App. P. 47.4
Prior to trial, the Atwoods filed with the court a number of affidavits
concerning the cost and necessity of their medical treatment. The Atwoods also
filed a motion in limine requesting that Pietrowicz be prohibited from bringing
certain matters to the jury’s attention ―unless and until such matters have been
first called to the attention of the court, out of the presence and/or hearing of the
jury, and a favorable ruling obtained from the Court as to the admissibility and
relevance of any such matters.‖ The court sustained the Atwoods’ prohibitions
on, among other things, (1) mentioning any insurance covering the Atwoods; (2)
arguing that any damages should be reduced by credits, write-offs or discounts
appearing on the Atwoods’ medical bills; (3) arguing that the Atwoods could not
have been injured because of the lack of damage to the vehicles; and (4) arguing
that the medical services evidenced in the Atwoods’ affidavits were unnecessary
or that their costs were unreasonable.
On appeal, the Atwoods argue in ten issues that the jury awarded much
less in damages than was established at trial because of Pietrowicz’s counsel’s
repeated violations of the order on the motion in limine; improper arguments that
the Atwoods do not owe their medical bills and that their damages should be
accordingly reduced by adjustments shown in the records; improper questioning
of the Atwoods’ counsel’s honesty; and misrepresentations of the uncontroverted
affidavits of medical care. For the reasons set forth below, we disagree and
uphold the damages awarded at trial.
2
Discussion
Improper Jury Argument
In their first and second issues, the Atwoods complain that Pietrowicz’s
trial counsel repeatedly violated the motion in limine and made improper
arguments that incurably prejudiced the jury. Pietrowicz responds that these
complaints were not preserved by objections during trial.
Normally, to preserve a complaint for appellate review, a party must have
presented to the trial court a timely request, objection, or motion that states the
specific grounds for the desired ruling, if they are not apparent from the context
of the request, objection, or motion. Tex. R. App. P. 33.1(a); see also Tex. R.
Evid. 103(a)(1). If a party fails to do this, error is not preserved, and the
complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on
reh’g). However, when an appellant complains of an incurable argument, it is
preserved by a motion for new trial, even without an objection at trial. Phillips v.
Bramlett, 288 S.W.3d 876, 883 (Tex. 2009).
Incurable argument is rare. Living Ctrs. of Tex., Inc. v. Penalver, 256
S.W.3d 678, 680 (Tex. 2008). To be incurable, the argument must be of such a
nature, degree, and extent that no instruction from the court or retraction of the
argument could undo its effect. Id. at 680–81. An incurable argument is one that
―strikes at the appearance of and the actual impartiality, equality, and fairness of
justice rendered by courts.‖ Id. at 681.
3
We first address preservation. The Atwoods did not object at trial to all of
the arguments of which they now complain.2 For those they did object to, all
discussion with the court is off the record.3 Thus, the record fails to reflect the
prerequisite statement of grounds, ruling by the court, and request for instruction
2
The two complained-of statements which were not objected to are
(1)
Well, if you look at Arlington Orthopedic, you look at the
bill, it’s the same thing. It’s $35 for her to go. And if you look
at the bill down here, it doesn’t owe any of it - - that they wrote
off a thousand dollars. Okay. And that there are all these
other reductions in here.
So for them to come in here and portray, like, oh, I owe
all these bills and, you know, look at all that I owe and look at
the large amounts of this. All right. They are not being honest
with you and - - open and honest with you, because if you look
at this stuff, they don’t owe it. All right.
They are asking you to compensate them for something
that they are not even going to pay. All right. That you are
going to give them money and they are not going to pay these
folks with the money that you give them. All right.
So for them to act like that is what they are going to do,
that is not the case.
(2) And I think you ought to look at the write-off stuff in
relation to that . . . .
3
The statement which was objected to, but on which no ruling is preserved
in the record, is, ―Look at the bills in the case. It looks like she doesn’t owe those
amounts.‖
The Atwoods also complain of a line of questioning in which Pietrowicz’s
counsel asked Priella Atwood whether she had ever looked at her medical bills
prior to trial. We note that this is not an argument to the jury and that the
Atwoods’ counsel allowed Priella to answer six questions on the subject before
objecting. Further, the Atwoods failed to get a ruling on their objection on the
record.
4
to disregard. However, some of the statements made by Pietrowicz were
preserved for our review in the Atwoods’ motion for new trial. Those statements
which were preserved, all in Pietrowicz’s closing argument, involved commenting
on the existence of health insurance as a collateral source of payment or arguing
that any damage award be reduced by write-offs or credits.4
All of these statements are proper remarks on the medical bills submitted
into evidence by the Atwoods. Although they were redacted, the bills clearly
show unredacted ―credits,‖ ―write-offs,‖ and ―adjustments.‖ A party cannot
complain of error when she has allowed the evidence to be admitted. Because
the Atwoods themselves sponsored the evidence of credits, write-offs, and
adjustments through the exhibits they introduced, error cannot be assigned for
commenting on the meaning of their documents in argument. See Magic Chef,
Inc. v. Sibley, 546 S.W.2d 851, 858 (Tex. App.—San Antonio 1977, pet. ref'd)
(holding that it was not improper argument to comment on requests for admission
that were read to the jury without objection).
In their third issue, the Atwoods complain that these same arguments by
Pietrowicz impugned the honesty of the Atwoods’ attorney. Attacks on the
integrity of counsel have been found to be ―highly improper and generally
4
The three statements which were preserved by the motion for new trial
are the two which were not objected to at trial and the argument to which the
Atwoods did object, but did not obtain a ruling. See supra notes 2–3. The
Atwoods did not preserve in their motion their complaint of the line of questioning
regarding Priella Atwood’s medical bills.
5
considered to be incurable.‖ Circle Y of Yoakum v. Blevins, 826 S.W.2d 753, 758
(Tex. App.—Texarkana 1992, writ denied). Specifically, the Atwoods point to
when Pietrowicz’s counsel said,
Well, if you look at Arlington Orthopedic, you look at the bill,
it’s the same thing. It’s $35 for her to go. And if you look at the bill
down here, it doesn’t owe any of it - - that they wrote off a thousand
dollars. Okay. And that there are all these other reductions in here.
So for them to come in here and portray, like, oh, I owe all
these bills and, you know, look at all that I owe and look at the large
amounts of this. All right. They are not being honest with you and
- - open and honest with you, because if you look at this stuff, they
don’t owe it. All right.
They are asking you to compensate them for something that
they are not even going to pay. All right. That you are going to give
them money and they are not going to pay these folks with the
money that you give them. All right.
So for them to act like that is what they are going to do, that is
not the case.
We do not understand the above argument to refer to the Atwoods’
counsel, but to the Atwoods themselves. And as discussed above, the Atwoods
were the ones who introduced the evidence that they did not owe the full amount
of the medical bills. Pietrowicz’s counsel was remarking on that evidence and
the Atwoods will not be heard to complain of it now. We overrule the Atwoods’
first, second, and third issues.
Objection at Closing
In their fourth issue, the Atwoods complain of the following statement
made during Pietrowicz’s closing argument:
6
I think back during the voir dire, Plaintiff’s Counsel told you that this
wasn’t a case where they were asking for a lot of money. Well, it
seems to me that they just asked you for a lot of money. Particularly
in relation to what kind of accident this was.
The Atwoods objected ―to the argument that the damages are based on
what kind of accident it was. They need to be based only on the actual
damages.‖ The court overruled the objection. The Atwoods complain that the
objection was proper because counsel’s statement was in violation of their
motion in limine, which prohibited counsel from ―arguing to the jury or testifying
that Plaintiffs could not have been injured due to the lack of damage or
insubstantial amount of damage to either or both of the vehicles involved in the
collision in question,‖ and that since it was in violation of the motion in limine, it
was an improper argument. Pietrowicz counsel argues that her counsel did not
run afoul of the prohibition because he did not directly mention vehicle damage.
The statement regarding ―what kind of accident this was‖ does not make
reference to vehicle damage and does not violate the Atwoods’ motion in limine.
Pietrowicz had argued throughout the trial about the lack of severity of the
accident and that such car accidents do not normally cause the types or extent of
injuries complained of. This statement is a proper summary of that argument.
The Atwoods’ objection was properly overruled at trial, and we now overrule their
fourth issue.
7
Uncontroverted Affidavits of Cost and Necessity of Medical Services
The Atwoods’ fifth through eighth and tenth issues relate to the
uncontroverted affidavits concerning the cost and necessity of medical services
they entered into evidence.
In their closing argument, the Atwoods stated that the affidavits
―conclusively establish[] that these fees were reasonable at the time and place
that they were -- for the things reflected in them, and that the services were
necessary.‖ [RR 51] Pietrowicz objected that it was an incorrect statement of
the law, referencing Texas Civil Practice and Remedies Code section 18.001. In
their fifth issue, the Atwoods argue that the trial court erred by sustaining this
objection and that by doing so, caused the jury to improperly award them less
than the full amount of their medical costs.
Also during closing, Pietrowicz argued that the jury should only award the
Atwoods part of the cost of Chelsey’s MRI. Pietrowicz told the jury that Chelsey
had three MRIs performed on the same day, including one on her neck, which he
argued she did not claim was injured in the accident. He told the jury, ―I don’t
think you should consider the third MRI that was done to the neck. Just look at
the other two.‖ The Atwoods claim that the MRI was a single ―three-level‖ MRI,
the cost of which cannot or should not be divided. The Atwoods complain in their
sixth issue that referring to the MRI as three different procedures was an
improper argument that caused the jury to enter a judgment of less than the full
cost of the MRI. Because the jury did not award the full cost of the MRI, the
8
Atwoods argue in their seventh and eighth issues that the jury’s damage award is
contrary to the conclusive evidence as a matter of law. The Atwoods further
argue in issue ten that the jury’s failure to award Priella all of the medical costs
for which she submitted uncontroverted affidavits is contrary to the conclusive
evidence as a matter of law.
Section 18.001 affidavits concerning the cost and necessity of services
rendered are ―sufficient evidence to support a finding of fact by judge or jury that
the amount charged was reasonable or that the service was necessary.‖ Tex.
Civ. Prac. & Rem. Code Ann. § 18.001(b) (Vernon 2008). Even when
uncontroverted, section 18.001 affidavits are not conclusive evidence. Hong v.
Bennett, 209 S.W.3d 795, 800 (Tex. App.—Fort Worth 2006, no pet.) (―An
uncontroverted section 18.001(b) affidavit provides legally sufficient—but not
conclusive—evidence to support a jury’s finding that the amount charged for a
service was reasonable and necessary.‖) (emphasis added). Section 18.001
affidavits do not establish that the costs were caused by the defendant’s actions
or that the plaintiffs are entitled to those costs as a matter of law. Sloan v.
Molandes, 32 S.W.3d 745, 752 (Tex. App.—Beaumont 2000, no pet.);
Beauchamp v. Hambrick, 901 S.W.2d 747, 749 (Tex. App.—Eastland 1995, no
writ). It is an evidentiary statute allowing for the admissibility of affidavits that
would otherwise be considered hearsay. Hong, 209 S.W.3d at 800; Beauchamp,
901 S.W.2d at 749.
9
When causation is contested, such as when there is a dispute over
the seriousness of an accident that allegedly caused the medical
expenses, the jury is not bound to award the damages set forth in an
uncontroverted affidavit under section 18.001, but is entitled to
answer the damages issue as it deems appropriate.
Gutierrez v. Martinez, No. 01-07-00363-CV, 2008 WL 5392023, at *9 (Tex.
App.—Houston [1st Dist.] Dec. 19, 2008, no pet.) (mem. op.).
The Atwoods’ statement that the affidavits were conclusive evidence was
properly objected to as being a misstatement of the law. The section 18.001
affidavits do not conclusively establish the Atwoods’ entitlement to those
damages as a matter of law. See, e.g., Sloan, 32 S.W.3d at 752 (upholding jury
award of $21,600 where medical expenses were established by affidavit to be
$107,543.25). The Atwoods were still required to demonstrate that the services
were sought as a result of Pietrowicz’s actions. Id.
Both Priella and Chelsey suffered injuries after the accident that were
unrelated to the accident and that were listed in the medical bills submitted into
evidence. Their counsel noted at trial that not all of the charges in the affidavits
were related to the car accident. In closing argument, he stated, ―[T]he affidavit
itself says that the attached records show there is $13,000-plus in necessary and
reasonable charges, but . . . the only ones that we are seeking here are . . . for
the MRI, which totals $8,873.‖ The jury was within its discretion to evaluate the
evidence and make judgment as to which of the medical expenses were related
to the accident and which were not. See Gutierrez, 2008 WL 5392023, at *9.
10
Further, during trial, the Atwoods did not object to Pietrowicz’s
characterization of the MRI as three separate MRIs. The record does not reflect
whether the Atwoods argued to the jury during their own closing that the MRI was
one three-level imaging, not three separate services. And the Atwoods did not
object when Pietrowicz referred to the MRI as ―three MRIs‖ during cross-
examination of Chelsey Atwood,5 or attempt on redirect to have Chelsey testify
that it was one procedure. The Atwoods’ presented no other testimony on the
issue, and the bill for the MRI attached to the affidavit breaks it down into three
items, each with its own code, quantity, and charge. The evidence is not clear
that the MRI was one procedure, and the jury was free to make that
determination and award the costs only on those procedures attributable to the
accident.
Based on this evidence in the record, we cannot say that it was error for
the jury to award less than the full amount of medical costs evidenced in the
affidavits. We overrule the Atwoods’ fifth, sixth, seventh, eighth, and tenth
issues.
Physical Impairment and Loss of Earning Capacity
In their ninth issue, the Atwoods argue that the jury’s responses to
questions in the jury charge are inconsistent and, therefore, require a new trial.
5
When questioned about the ―three MRIs,‖ Chelsey responded, ―They did
one long one. They didn’t do three little ones. They did one big one . . . . Three
different ones.‖
11
Question two of the jury charge asked the jury, ―What sum of money, if paid now
in cash, would fairly and reasonably compensate Priella Atwood for her injuries, if
any, that resulted from the occurrence in question?‖ The charge broke out the
award as follows:
a. Physical pain and mental anguish sustained in the past;
b. Physical pain and mental anguish that, in reasonable probability,
Priella Atwood will sustain in the future;
c. Physical impairment sustained in the past;
d. Physical impairment that, in reasonable probability Priella Atwood
would sustain in the future;
e. Medical care expenses sustained in the past; and
f. Loss of earning capacity sustained in the past.
The Atwoods complain on appeal that the jury’s answer for part (c)
(physical impairment sustained in the past) of zero dollars and the jury’s answer
for part (f) (loss of earning capacity sustained in the past) of $2,098.40 are
inconsistent. The Atwoods argue that Priella’s lost earning capacity could only
have been due to her physical impairment and thus, because the jury found that
Priella had suffered lost earning capacity, they should have awarded her
something for her past physical impairment.
Physical impairment and loss of earning capacity are not the same thing.
Loss of earning capacity is the diminution in the plaintiff’s ability to earn and
―do[es] not have to be based on any specific degree of physical impairment, but
can be based on a composite of all of the factors affecting earning capacity.‖ Tri-
12
State Motor Transit Co. v. Nicar, 765 S.W.2d 486, 492 (Tex. App.—Houston
[14th Dist.] 1989, no writ). It includes her ability to ―get and hold a job, or [her]
capacity for duration, consistency or efficiency of work . . . .‖ Rendon v. Avance,
67 S.W.3d 303, 312–13 (Tex. App. —Fort Worth 2001, no pet.) (quoting Springer
v. Baggs, 500 S.W.2d 541, 545 (Tex. Civ. App.—Texarkana 1973, writ ref'd
n.r.e.)).
Physical impairment ―extends beyond loss of earning capacity and beyond
any pain and suffering, to the extent that it produces a separate loss that is
substantial or extremely disabling.‖ Dawson v. Briggs, 107 S.W.3d 739, 752
(Tex. App.—Fort Worth 2003, no pet.). It can include inability to participate in
hobbies, completely apart from any inability to perform work. Patlyek v. Brittain,
149 S.W.3d 781, 787 (Tex. App.—Austin 2004, pet. denied) (―By focusing on
activities unrelated to work, a reviewing court can distinguish losses comprising
physical impairment from those comprising lost wages or earning capacity.‖)
This court has previously noted,
To receive damages for physical impairment, the injured party must
prove that the effect of his physical impairment extends beyond any
impediment to his earning capacity and beyond any pain and
suffering, to the extent that it produces a separate and distinct loss
that is substantial and for which he should be compensated.
Therefore, even proof that one is entitled to compensatory damages
for pain and suffering, or for lost wages, does not automatically
entitle one to compensation for physical impairment.
Dawson, 107 S.W.3d at 752 (internal citations omitted).
13
Damages for physical impairment and for loss of earning capacity
compensate the plaintiff for different losses. The jury’s finding that Priella
Atwood did not suffer physical impairment to a degree for which she should be
compensated is therefore not inconsistent with their award of lost earning
capacity. The Atwoods’ ninth issue is overruled.
Conclusion
Having overruled each of the Atwoods’ issues, we affirm the trial court’s
judgment.
LEE GABRIEL
JUSTICE
PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.
DELIVERED: October 28, 2010
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