Randall McDaniel v. Farland Monroe Dindy and Core-Mark Midcontinent, Inc. ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00441-CV
___________________________
RANDALL MCDANIEL, Appellant
V.
FARLAND MONROE DINDY AND CORE-MARK MIDCONTINENT, INC.,
Appellees
On Appeal from the 348th District Court
Tarrant County, Texas
Trial Court No. 348-295536-17
Before Kerr and Birdwell, JJ.1
Opinion by Justice Birdwell
1
Justice Wallach originally was a member of the panel. After oral argument it
was determined that although he made no rulings in the trial court relevant to this
appeal, he had previously been the presiding judge of the district court from which
the appeal arises while the case was pending in the that court. Once this information
came to his attention, he recused himself, and the case was decided by the remaining
two justices of the panel. See Tex. R. App. P. 41.1(b).
2
OPINION
This is a personal injury case. Randall McDaniel was injured when a three-
thousand-pound dolly dislodged from a tractor-trailer rig being driven by Farland
Monroe Dindy and crashed into McDaniel’s vehicle. McDaniel sued Dindy and his
employer, Core-Mark Midcontinent, Inc. (Core-Mark), sometimes referred to jointly
as Cross-Appellants. The jury found: (1) Dindy and Core-Mark negligent in causing
the occurrence, (2) $350,000 in compensatory damages for McDaniel, including
$95,000 in future medical expenses, (3) Dindy grossly negligent and assessed $7,500 in
punitive damages against him, and (4) Core-Mark grossly negligent and assessed
$400,000 in punitive damages against it. The trial court rendered final judgment jointly
and severally against Dindy and Core-Mark for $350,000 in compensatory damages
and awarded $7,500 in punitive damages against Dindy, plus prejudgment interest,
postjudgment interest, and taxable court costs. The trial court granted, in part, Cross-
Appellants’ motion for judgment notwithstanding the verdict (JNOV), denying
recovery to McDaniel for punitive damages against Core-Mark. The trial court denied
those portions of Cross-Appellants’ JNOV that sought to deny McDaniel his recovery
of compensatory damages in toto, future medical expenses of $95,000 in particular,
and recovery of punitive damages against Dindy.
McDaniel appeals the granting of the JNOV, which deprived him of his
recovery of punitive damages against Core-Mark. We will affirm the part of the trial
court’s judgment denying recovery of punitive damages against Core-Mark.
3
Dindy and Core-Mark cross-appeal the partial denial of their JNOV, raising
three issues: (1) legally insufficient evidence to support the negligence verdict against
them because there was no probative expert testimony regarding the standard of care
applicable to them, (2) legally insufficient evidence to support a gross negligence
verdict against Dindy because there was no evidence to show that Dindy had actual or
subjective awareness of the risk involved but nevertheless proceeded in conscious
indifference to the rights, safety, or welfare of others, and (3) legally insufficient
evidence to support an award of future medical damages to McDaniel. Although we
will overrule Cross-Appellants’ first two issues, we will sustain Cross-Appellants’ third
issue and modify the judgment to delete the award of future medical expenses. As
modified, the judgment will be affirmed.
I. Factual Background
This lawsuit arose out of an October 9, 2015 motor-vehicle collision that
occurred while Dindy, who was in the course and scope of employment for Core-
Mark, was driving a truck and towing a trailer with a converter dolly. While Dindy was
driving on Interstate 35, the converter dolly dislodged from the trailer, struck a tow
truck, and then struck the vehicle being driven by McDaniel, causing injuries to
McDaniel. McDaniel filed suit against Dindy and Core-Mark claiming that both were
negligent in causing the collision and resulting injuries and that both were grossly
negligent and should be assessed punitive damages.
4
The evidence at trial will be described in more detail below as necessary to
address the points raised on appeal. By way of overview, Core-Mark’s national
transportation manager testified that he conducted a post-accident investigation which
led him and Core-Mark to conclude that Dindy had failed to properly secure the dolly
before leaving on his trip—which Dindy denied—leading to the dolly’s dislodging
from the trailer and colliding with McDaniel’s vehicle. Dindy testified that he did not
know why the dolly dislodged. Dindy was required by company policy and federal
regulations to do a pre-trip inspection before leaving on the trip in question, which
inspection required checking, among other things, whether the dolly was secure. The
evidence is disputed as to whether Dindy performed the inspection. The Core-Mark
transportation director also testified that Dindy was terminated for his failure to
follow methods for securing the dolly, as documented in Core-Mark’s records.
However, Dindy testified that he was terminated for having an accident within the
first ninety days of his employment with Core-Mark.
There was evidence that Core-Mark utilized an electronic driver logging system
called PeopleNet and that Dindy should have used this system to document the
required pre-trip inspection of his equipment before leaving on this trip; that the
inspection, if done, should have caused Dindy to realize he had not secured the dolly;
and that no pre-trip inspection was recorded by Dindy in the PeopleNet system
before this accident. Further, the PeopleNet records reflected that Dindy had failed to
5
document a pre-trip inspection the day before the accident, as well as other potential
irregularities for the preceding two weeks.
Who was to review the electronic reports, and when, is ambiguous in the
record. Matthew Beard, the Core-Mark corporate representative, testified that at the
end of each day the “supervisor” or “somebody” was supposed to review the
electronic reports “as soon as he [could].” He also testified that “somebody in the
company who [was] receiving these reports should [have] note[d] immediately” if a
driver left the yard without doing a report. Further, he testified that ideally Core-Mark
wanted the daily electronic reports to be reviewed as frequently as they could be and
that daily would have been ideal. However, other than a vague reference to a
“supervisor” or “leadership team” being responsible for making reviews, there was no
evidence as to who exactly was supposed to be monitoring this reporting system, what
monitoring had been done or not done regarding Dindy, and why, or what the
corporate job responsibilities were for those who were supposed to have been
monitoring the system, for purposes of assessing their status as “vice principals.”
McDaniel and his now ex-wife testified about his chronic pain problems and
how his injuries had negatively affected his work and personal life and their
relationship. Voluminous records from multiple health-care providers were
introduced. Two treating pain-management doctors testified that McDaniel had
developed a cervical facet joint syndrome as a result of this collision, and they
described the treatment that he had received, including chiropractic care, medical care
6
and medications, pain injections, nerve-pain blocks, and a rhizotomy. The doctors
testified that his condition is probably permanent and that he will likely need nerve-
pain blocks and a rhizotomy once every year or two for the rest of his life. No expert
testimony of the reasonableness of past or future medical charges was introduced.
Although affidavits regarding the reasonableness of the cost and necessity of past
medical care were filed prior to trial pursuant to Texas Civil Practice and Remedies
Code Section 18.001 and preadmitted at trial, they were later voluntarily withdrawn,
and no jury question regarding past medical expenses was tendered or submitted to
the jury.
The jury verdict, JNOV, and judgment resulted as described above.
II. Standards of Review/Legal Principles
A trial court may disregard a jury verdict and render a JNOV if no evidence
supports the jury finding on an issue necessary to liability or if a directed verdict
would have been proper. See Tex. R. Civ. P. 301; Tiller v. McLure, 121 S.W.3d 709,
713 (Tex. 2003); Edwards v. Chevrolet, 605 S.W.3d 219, 222 (Tex. App.—Fort Worth
2020, no pet.). A directed verdict is proper only under limited circumstances: (1) when
the evidence conclusively establishes the movant’s right to judgment or negates the
opponent’s right or (2) when the evidence is insufficient to raise a material fact issue.
Prudential Ins. Co. of Am. v. Fin. Rev. Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000); Edwards,
605 S.W.3d at 222.
7
We review the granting or denial of a motion for judgment notwithstanding the
verdict under a legal sufficiency standard. Tanner v. Nationwide Mut. Fire Ins.,
289 S.W.3d 828, 830 (Tex. 2009); City of Keller v. Wilson, 168 S.W.3d 802, 809–28 (Tex.
2005); B & W. Supply, Inc. v. Beckman, 305 S.W.3d 10, 21 (Tex. App.—Houston [1st
Dist.] 2009, pet. denied). We view the evidence in the light most favorable to the
verdict. Ingram v. Deere, 288 S.W.3d 886, 893 (Tex. 2009); Edwards, 605 S.W. 3d at 222.
We credit evidence favoring the jury verdict if reasonable jurors could and must
disregard contrary evidence unless reasonable jurors could not. See Tanner, 289 S.W.3d
at 830; Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007). We will
uphold the trial court’s JNOV if no evidence supports the jury’s finding on a vital fact
or if the evidence conclusively establishes the opposite of a vital fact. City of Keller,
168 S.W.3d at 810. “[E]very reasonable inference deducible from the evidence is to be
indulged in” support of the jury’s finding. Bustamante v. Ponte, 529 S.W.3d 447,
456 (Tex. 2017) (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.
1997)). We may sustain a legal sufficiency challenge only when (1) the record discloses
a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or
of 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, or (4) the
evidence establishes conclusively the opposite of a vital fact. Ford Motor Co. v. Castillo,
444 S.W.3d 616, 620 (Tex. 2014); Norhill Energy LLC v. McDaniel, 517 S.W.3d 910,
916 (Tex. App.—Fort Worth 2017, pet. denied). When a trial court specifies the
8
ground upon which it grants a JNOV, an appellant need only challenge the ground
relied upon by the trial court. Pitts & Collard, L.L.P. v. Schechter, 369 S.W.3d 301,
323 (Tex. App.—Houston [1st Dist.] 2011, no pet.); Edascio, L.L.C. v. NextiraOne
L.L.C., 264 S.W.3d 786, 795 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).
Additionally, we are bound by a heightened standard of review on the jury’s
gross negligence findings because gross negligence must be proven by clear and
convincing evidence. Columbia Med. Ctr. of Las Colinas v. Hogue, 271 S.W.3d 238,
248 (Tex. 2008) (citing Diamond Shamrock Ref. Co., L.P. v. Hall, 168 S.W.3d 164,
170 (Tex. 2005), and quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). The Hogue
court has described this heightened standard:
In a [clear-and-convincing] legal sufficiency review, a court should look
at all the evidence in the light most favorable to the finding to determine
whether a reasonable trier of fact could have formed a firm belief or
conviction that its finding was true. To give appropriate deference to the
factfinder’s conclusions and the role of a court conducting a legal
sufficiency review, looking at the evidence in the light most favorable to
the judgment means that a reviewing court must assume that the
factfinder resolved disputed facts in favor of its finding if a reasonable
factfinder could do so. A corollary to this requirement is that a court
should disregard all evidence that a reasonable factfinder could have
disbelieved or found to have been incredible. This does not mean that a
court must disregard all evidence that does not support the finding.
Disregarding undisputed facts that do not support the finding could
skew the analysis of whether there is clear and convincing evidence.
271 S.W.3d at 248. “‘Clear and convincing’ evidence means the measure or degree of
proof that will produce in the mind of the trier of fact a firm belief or conviction as to
9
the truth of the allegations sought to be established.” Tex. Civ. Prac. & Rem. Code
Ann. § 41.001(2); U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012).
Gross negligence consists of both objective and subjective elements. See Lee
Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001). Plaintiffs must prove by
clear and convincing evidence that (1) when viewed objectively from the defendant’s
standpoint at the time of the event, the act or omission involved an extreme degree of
risk, considering the probability and magnitude of the potential harm to others and
(2) the defendant had actual, subjective awareness of the risk involved but
nevertheless proceeded with conscious indifference to the rights, safety, or welfare of
others. See id.; see also Tex. Civ. Prac. & Rem. Code Ann. § 41.001(11); U-Haul Int’l,
Inc., 380 S.W.3d at 137.
Regarding the objective component, the act or omission must involve “an
extreme degree of risk, considering the probability and magnitude of the potential
harm to others.” Medina v. Zuniga, 593 S.W.3d 238, 247 (Tex. 2019) (quoting Harrison,
70 S.W.3d at 785). “[A]n extreme risk is ‘not a remote possibility of injury or even a
high probability of minor harm, but rather the likelihood of serious injury to the
plaintiff.’” Id. (quoting Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998)).
“An act or omission that is merely thoughtless, careless, or not inordinately risky
cannot be grossly negligent.” Id. at 249 (quoting Transp. Ins. v. Moriel, 879 S.W.2d 10,
22 (Tex. 1994)).
10
To raise a fact issue on the subjective component, there must be legally
sufficient evidence that the actor had actual, subjective awareness of the risk involved
but nevertheless was consciously indifferent to the rights, safety, or welfare of others.
Suarez v. City of Texas City, 465 S.W.3d 623, 633–34 (Tex. 2015). Circumstantial
evidence can be used to prove actual knowledge, but it must “either directly or by
reasonable inference support that conclusion.” Id. at 634 (quoting City of Corsicana v.
Stewart, 249 S.W.3d 412, 415 (Tex. 2008)). “An inference is not reasonable if it is
susceptible to multiple, equally probable inferences, requiring the factfinder to guess
in order to reach a conclusion.” Id. “The defendant need not have anticipated the
precise manner of harm or to whom the injury would befall to have had awareness of
the extreme risk.” Zuniga, 593 S.W.3d at 248.
III. Analysis
(a) McDaniel’s Appeal
McDaniel’s issue on appeal is that the trial court erred in granting Cross-
Appellants’ JNOV motion on jury question 5. We will overrule McDaniel’s issue.
McDaniel’s challenge to the jury’s answer to question 6 (the amount of punitive
damages) is rendered moot by our decision.
Corporations may be liable for punitive damages but only when the act or
omission is that of the corporation, not its ordinary agents or servants. Hammerly
Oaks, Inc. v. Edwards, 958 S.W.2d 387, 391 (Tex. 1997). In adopting Restatement of
Torts § 909 (1939), in King v. McGuff, 234 S.W.2d 403, 405 (Tex. 1950), the Supreme
11
Court held that punitive damages may properly be awarded against a master or other
principal because of the act of an agent if, but only if,
(a) the principal authorized the doing and the manner of the act, or
(b) the agent was unfit, and the principal was reckless in employing him, or
(c) the agent was employed in a managerial capacity and was acting in
the scope of employment, or
(d) the employer or a manager of the employer ratified or approved the act.
Id.; see also Hammerly Oaks, Inc., 958 S.W.2d at 391.
The classes of agents or servants considered to be in a managerial capacity are
those characterized as vice principals. Hammerly Oaks, Inc., 958 S.W.2d at 391. These
people consist of four classes of agents or servants:
(a) [c]orporate officers; (b) those who have authority to employ, direct,
and discharge servants of the master; (c) those engaged in the
performance of nondelegable or absolute duties of the master; and
(d) those to whom a master has confided the management of the whole
or a department or division of his business.
Id. at 391.
The employee’s title is not dispositive of his status as a corporate officer, but
the category includes one who represents the corporation in its corporate capacity. Id.
at 391. Acts of lower level supervisory employees who are not vice principals are not
legally sufficient to support a finding of gross negligence. Qwest Int’l Commc’ns Inc. v.
AT&T Corp., 167 S.W.3d 324, 326 (Tex. 2005). The burden of proof to establish the
basis of corporate liability for gross negligence of a servant or agent, i.e., vice
principal, rests with the plaintiff. Id.12
Jury question 5 asked if, by clear and convincing evidence, the harm to
McDaniel resulted from the gross negligence of Core-Mark. Clear and convincing
evidence was properly defined. “Gross negligence” was properly defined using the
objective and subjective elements. There were, however, no instructions for the jury
regarding whose conduct they could consider in answering this question other than
Core-Mark’s.
Although it was uncontroverted that Dindy was in the course and scope of his
employment with Core-Mark during the time in question, it is equally clear that he
was an ordinary servant, and his conduct could not form the basis for a gross
negligence claim against Core-Mark. See id. at 326.
The only other conduct that could arguably support a claim for gross
negligence of Core-Mark, and that to which McDaniel points in his briefing, is Core-
Mark’s “leadership team” or “supervisor” that was supposed to be monitoring the
PeopleNet logging system.2 However, there was no evidence of the identity of the
persons who were supposed to be monitoring the PeopleNet system or their
corporate responsibilities that might qualify them as vice principals. Without such
evidence, we are left to speculate as to whether the “leadership team” or “supervisor”
were vice principals or ordinary employees. Since a gross negligence finding must be
2
There is no evidence that Core-Mark vice principals authorized or ratified
Dindy’s conduct in question.
13
supported by clear and convincing evidence, such speculation cannot support a gross
negligence verdict.3 We overrule McDaniel’s issue.
(b) Dindy and Core-Mark’s Cross-Appeal
Dindy and Core-Mark present legal sufficiency challenges to the judgment as
follows:
1. There was legally insufficient evidence to support a negligence verdict
against Dindy and Core-Mark because there was no probative expert
testimony regarding the applicable standard of care for either Dindy or
Core-Mark.
2. There was legally insufficient evidence to support a gross negligence verdict
against Dindy because there was no evidence to show that Dindy had actual
or subjective awareness of the risk involved but nevertheless proceeded in
conscious indifference to the rights, safety, or welfare of others.
3
Additionally, Core-Mark contends that there was no evidence to support a
gross negligence finding against it because there was no probative expert testimony
that established its standard of care of monitoring. See FFE Transp. Servs., Inc. v.
Fulgham, 154 S.W.3d 84, 91 (Tex. 2004). We agree. The standard of care for
monitoring of drivers’ electronic logging practices is not something within the
knowledge of lay persons, and the Supreme Court held in FFE that a defendant
company’s practices or policies are not sufficient to support a negligence finding
when expert testimony is required. Likewise, “[t]he mere existence of federal
regulations does not establish the standard of care or establish gross negligence per
se.” U-Haul Int’l, Inc., 380 S.W.3d at 139. Viewing the evidence even in its most
favorable light in support of the verdict, company policy and government regulation
was all that McDaniel arguably had to rely on in this regard. We cannot say that this
record meets the heightened standard of review to support a gross negligence finding
against Core-Mark.
14
3. There was legally insufficient evidence to support an award of future
medical damages of $95,000.
(i) Legally Insufficient Evidence to Support Negligence (Cross-
Appellants’ Issue 1)
Cross-Appellants’ first issue is that there was legally insufficient evidence to
support a negligence verdict against them because there was no probative expert
testimony regarding the applicable standard of care. We will address only the legal
sufficiency of the evidence regarding Dindy because Core-Mark conceded that if
Dindy’s negligence was properly supported by the evidence, it would be imputed to
Core-Mark for purposes of ordinary negligence, which would support the judgment
against Core-Mark for compensatory damages.
Cross-Appellants contend that “the FFE Court firmly established that . . .
expert testimony is necessary to establish a trucking company’s standard of care.”
FFE Transp. Servs., 154 S.W.3d at 91. We believe that Cross-Appellants are stretching
the holding in FFE too far.
In FFE, the court noted that the question of whether expert testimony is
necessary to establish the standard of care in a given case is reviewed de novo by the
reviewing court. 154 S.W.3d at 90. It then described the test for determining whether
expert testimony is required to establish a standard of care, using somewhat different
terminology in two places. The court first quoted its earlier opinion in Roark v. Allen,
633 S.W.2d 804, 809 (Tex. 1982), a medical-malpractice case: “Expert testimony is
15
necessary when the alleged negligence is of such a nature as not to be within the experience
of the layman.” Id. at 90 (emphasis added). It then described the test as “whether the
conduct at issue involves the use of specialized equipment and techniques unfamiliar to the
ordinary person.” Id. at 91 (emphasis added). However, the court did not rule so
broadly as to require expert testimony to establish the standard of care in all trucking-
company cases. The tests were applied to the specific facts of that case.
Therefore, we must examine de novo the circumstances of this case to
determine whether expert testimony was required to establish a standard of care.
McDaniel alleged in part—and there was evidence from Core-Mark’s national
transportation manager, Michael Terry, to support—that Dindy’s dolly dislodged and
crashed into McDaniel’s trailer because Dindy had failed to secure the dolly—he did
not connect the safety chains, he did not attach the coupling device onto the trailer,
and he did not secure the pintle hook or close the latch. 4 Terry testified that the use of
the connecting equipment was “common sense” and use of the safety chains is “just
like safety chains on a trailer you pull behind your car. They’re there to—if it does—
does come—come detached, it’s supposed to keep the—the equipment together so it
doesn’t fly off the side of the road.” Given this testimony, and the photographic
evidence in the record, we hold that expert testimony was not required to establish the
4
As Core-Mark’s transportation manager, Terry was responsible for overseeing
all driver functions, including safety and accidents. At the time of the occurrence in
question, he was the Fort Worth region manager for Core-Mark.
16
standard of care of this allegation of failure to properly secure the dolly. See AKIB
Const. Inc. v. Shipwash, 582 S.W.3d 791, 804–05 (Tex. App.—Houston [1st Dist.] 2019,
no pet.) (holding “in this case, a factfinder applying a ‘commonsense understanding’
could consider the before and after pictures of the steel building and, with reasonable
probability, reach a conclusion that the building was damaged during the dismantling
process,” and thus that no expert witness testimony was necessary to support a
judgment of liability); MEMC Pasadena, Inc. v. Riddle Power, LLC, 472 S.W.3d 379,
404 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (stating failure to install
protective device on machine which would have prevented accident after promising to
install one does not require expert testimony to establish negligence); Alza Corp. v.
Thompson, No. 13-07-00090-CV, 2010 WL 1254610, at *28–29 (Tex. App.—Corpus
Christi–Edinburg Apr. 1, 2010, no pet.) (mem. op.) (holding testimony of corporate
representatives of defendant regarding problems with production of defective
Duragesic pain patches and handling of complaints were sufficient to exempt case
from requirement of expert testimony in negligence claim); Ching Enters., Inc. v.
Barahona, No. 01-07-00454-CV, 2008 WL 4006758, at *6–8 (Tex. App.—Houston [1st
Dist.] Aug. 28, 2008, no pet.) (mem. op.) (considering plaintiff’s lay testimony that
grating machine “lacked a plate device that would have prevented her hands from
getting near the blades” was sufficient to support defendant’s negligence without
expert testimony).
Having determined that expert testimony was not required to establish the
17
standard of care regarding Dindy’s negligence in failing to secure the dolly, we
overrule Cross-Appellants’ first issue. 5
(ii) Legally Insufficient Evidence to Support Dindy’s Gross Negligence
(Cross-Appellants’ Issue 2)
Cross-Appellants’ Issue 2 contends that “[t]here was legally insufficient
evidence to support a gross negligence verdict against Dindy because there was no
evidence to show that Dindy had actual or subjective awareness of the risk involved,
but nevertheless proceeded in conscious indifference to the rights, safety, or welfare
of others.” They argue that because of the following evidence, “there is legally
insufficient evidence that Dindy was aware of a specific peril, or that Dindy was aware
that the converter dolly was not properly secured and just didn’t care”:
• Dindy had been a commercial truck driver for 30 years;
• Core-Mark had trained Dindy;
• Core-Mark gave Dindy written instructions on how to secure the converter
dolly;
• Dindy had attached converter dollies over the years;
• Dindy had never before had a converter dolly come loose from a truck or
trailer he was driving/pulling;
Cross-Appellants have not challenged the legal sufficiency of the evidence
5
under an ordinary negligence standard of care not requiring expert testimony.
18
• Dindy believed he had attached the converter dolly properly on October 9,
2015;
• Dindy believed that he had performed a proper pre-trip inspection on
October 9, 2015;
• Dindy did not know why the converter dolly came loose;
• Dindy would not have left the yard if he did not think he had hooked the
safety chains from the converter dolly to the trailer; and
• Dindy attached the converter dolly the same way he did every other time
that he attached converter dollies.
This argument, however, is inconsistent with our standard of review on a legal
insufficiency review of a gross negligence finding:
In a legal sufficiency review, a court should look at all the evidence in
the light most favorable to the finding to determine whether a
reasonable trier of fact could have formed a firm belief or conviction
that its finding was true. To give appropriate deference to the
factfinder’s conclusions and the role of a court conducting a legal
sufficiency review, looking at the evidence in the light most
favorable to the judgment means that a reviewing court must
assume that the factfinder resolved disputed facts in favor of its
finding if a reasonable factfinder could do so.
Hogue, 271 S.W.3d at 248 (emphasis added) (quoting Hall, 168 S.W.3d at 170). We
must therefore also review the evidence in support of the jury’s verdict of gross
negligence. Terry testified that
• hooking up trailers was probably the most important part of Dindy’s job;
19
• securing the dolly is common sense;
• the knowledge required to secure the dolly was required for Dindy’s
commercial driver’s license;
• the knowledge to secure the dolly was part of Dindy’s training to pull
double loads like this;
• Terry inspected the tractor, trailer, and dolly after the accident, and he
determined that the dolly had not been properly connected;
• Dindy failed to hook up the safety chains, attach the coupling device onto
the trailer, and secure the pintle hook or close the latch;
• Dindy was terminated for not following methods to hook up the dolly, and
Dindy “[a]bsolutely” did not do what he should have done; and
• it is dangerous to drive without safety chains attached.
Dindy testified that
• he had been a commercial truck driver for 30 years;
• Core-Mark had trained him;
• Core-Mark gave him written instructions on how to secure the converter
dolly;
• he had attached converter dollies over the years;
• the collision occurred because the dolly came loose from his trailer, but he
did not know why it came loose;
20
• he did everything that he was supposed to do before he left on his trip,
including inspecting the dolly;
• he knew that if the dolly were to become disengaged, it could cause serious
injury or death and that it would even take an “act of God” for it not to
cause serious injury if it came loose;
• he knew that a reasonable and prudent truck driver would make sure that
the dolly would not come off;
• he was supposed to do a pre-trip inspection and record it in the PeopleNet
system;
• doing a pre-trip inspection is required by Core-Mark policy and federal
regulation;
• pre-trip inspection included checking to see that the dolly is secured;
• pre-trip inspection is a safeguard to make sure everything has been done
correctly;
• pre-trip inspection is designed to determine if there is a safety issue or
hazard;
• pre-trip inspection will reveal if the chains are not properly connected;
• he understood, without anyone having to explain it to him, the importance
of documenting everything;
• he always logs his pre-trip inspection in the PeopleNet system;
21
• failure to do a pre-trip inspection is possibly consciously putting others at
risk of serious harm or injury; and
• there is no pre-trip inspection documented in the PeopleNet log before he
left the yard and was involved in the collision in question.
This evidence constitutes legally sufficient evidence to support the gross
negligence finding against Dindy. He was consciously aware of the need to secure his
dolly before leaving on the trip, he knew how to secure his dolly, he knew that the
failure to secure the dolly would put others on the road at serious risk of serious injury
or death, he knew that he had a duty under company policy and federal regulations to
do a pre-trip inspection that was designed to detect safety hazards in the connections
of the dolly, and he knew that he was required to document his pre-trip inspection in
the PeopleNet system. Although there is a dispute in the testimony about whether he
did secure the dolly and do a pre-trip inspection, we are required to presume that the
jury resolved these factual disputes in accordance with its verdict. See J.F.C., 96 S.W.3d
at 266; Rayner v. Dillon, 501 S.W.3d 143, 148 (Tex. App.—Texarkana 2016, pet. dism’d
by agr.). From this evidence, the jury could have reasonably inferred that Dindy chose
to drive his vehicle without securing his dolly, doing a pre-trip inspection, or both and
that doing so would expose others on the road to a risk that would require an “act of
God” to prevent serious harm. This evidence is legally sufficient to support the jury’s
finding of the objective-and-subjective-awareness prongs of the gross negligence test.
22
See Rayner, 501 S.W.3d at 150–52; see also USA Truck, Inc. v. West, 189 S.W.3d 904,
909 (Tex. App.—Texarkana 2006, pet. denied) (“Given that [the driver] testified he
was aware his actions posed a risk, and given the extreme circumstances surrounding
his actions, the jury could have reasonably concluded that [the driver] was not only
aware his actions created a risk, but that he was also aware of the magnitude of that
risk.”). We overrule Cross-Appellants’ Issue 2.
(iii) Legally Insufficient Evidence to Support Future Medical Expenses
(Cross-Appellants’ Issue 3)
Cross-Appellants contend that the damages evidence and testimony elicited at
trial was legally insufficient to support an award of $95,000 in future medical
expenses. Part of Cross-Appellants’ argument is that there is no probative evidence of
the reasonable costs of past or future medical expenses upon which a judgment for
future medical expenses could be based. Because our disposition of this argument is
dispositive of this point, we need not address Cross-Appellants’ other arguments
under this issue.
The case law regarding legal sufficiency of the evidence for awards for future
medical expenses has essentially been developed by the various courts of appeals
within the general parameters of legal sufficiency review established by the Supreme
Court. Columbia Med. Ctr. of Las Colinas v. Bush ex rel. Bush, 122 S.W.3d 835, 842,
863 (Tex. App.—Fort Worth 2003, pet. denied). Certain propositions are generally
cited by the various courts of appeals, for example:
23
• the plaintiff must show that there is a reasonable probability that medical
expenses will be incurred in the future, id. at 862–63; see also Brownsville
Pediatric Ass’n v. Reyes, 68 S.W.3d 184, 191 (Tex. App.—Corpus Christi–
Edinburg 2002, no pet.); City of San Antonio v. Vela, 762 S.W.2d 314,
321 (Tex. App.—San Antonio 1988, writ denied); Hughett v. Dwyre,
624 S.W.2d 401, 405 (Tex. App.—Amarillo 1981, writ ref’d n.r.e.);
• the plaintiff is not required to establish the need for future medical
consequences of his injury by expert testimony based on reasonable medical
probability, Bush, 122 S.W.3d at 863; see also Whole Foods Mkt. Sw., L.P. v.
Tijerina, 979 S.W.2d 768, 781 (Tex. App.—Houston [14th Dist.] 1998, pet.
denied); Furr’s, Inc. v. Logan, 893 S.W.2d 187, 194 (Tex. App.—El Paso 1995,
no writ); Gladewater Mun. Hosp. v. Daniel, 694 S.W.2d 619, 621 (Tex. App.—
Texarkana 1985, no writ); but, to sustain an award of future medical
expenses, “the plaintiff must present evidence to establish that in all
reasonable probability, future medical care will be required and the
reasonable cost of that care,” Gunn v. McCoy, 554 S.W.3d 645, 671 (Tex.
2018) (emphasis added) (quoting Rosenboom Mach. & Tool, Inc. v. Machala,
995 S.W.2d 817, 828 (Tex. App.—Houston [1st Dist.] 1999, pet. denied)); see
also Bill Miller Bar-B-Q Enters., Ltd. v. Gonzales, No. 04-04-00747-CV,
2005 WL 2176079, at *2 (Tex. App.—San Antonio Aug. 24, 2005, pet.
denied) (mem. op.);
• the reasonable value of future medical care may be established by evidence
of the reasonable value of past medical treatment, Perez v. Williams, No. 02-
21-00395-CV, 2022 WL 17351581, at *9, *10 (Tex. App.—Fort Worth Dec.
1, 2022, no pet.) (mem. op.); see also Harvey v. Culpepper, 801 S.W.2d 596,
599 (Tex. App.—Corpus Christi 1990, no writ); City of Rosenberg v. Renken,
616 S.W.2d 292, 293 (Tex. App.—Houston [14th Dist.] 1981, no writ); Thate
v. Tex. & Pac. Ry., 595 S.W.2d 591, 601 (Tex. App.—Dallas 1980, writ
dism’d);
• “[a]n award of future damages in a personal injury case is always [somewhat]
speculative,” Perez, 2022 WL 17351581, at *9 (citing Pipgras v. Hart,
832 S.W.2d 360, 365 (Tex. App.—Fort Worth 1992, writ denied)); “[l]ife
expectancy, medical advances, and the future cost of products, services[,]
and money are not matters of certainty,” id. (quoting Pipgras), and thus
“[t]he jury is instead asked to determine what medical expenses are
‘reasonabl[y] probab[le]’” to be incurred in the future, id. (first quoting
Antonov v. Walters, 168 S.W.3d 901, 908 (Tex. App.—Fort Worth 2005, pet.
denied), and then citing Bush, 122 S.W.3d at 862–63); in making that
24
determination, a jury may “extrapolate an award of future damages from
proof of other matters” such as the medical care rendered before trial, the
nature of plaintiff’s injuries, and the plaintiff’s condition at the time of trial,
id. (first citing Antonov, 168 S.W.3d at 908, and then citing Bush, 122 S.W.3d
at 863, and Pipgras, 832 S.W.2d at 365); see also LMMM Houston #41, Ltd. v.
Santibanez, No. 01-16-00724-CV, 2018 WL 4137971, at *10 (Tex. App.—
Houston [1st Dist.] Aug. 30, 2018, no pet.) (mem. op.); Nat’l Freight, Inc. v.
Snyder, 191 S.W.3d 416, 426 (Tex. App.—Eastland 2006, no pet.); Bill Miller
Bar-B-Q, 2005 WL 2176079, at *2;
• an award of future medical expenses rests within the sound discretion of the
jury, and appellate courts are hesitant to disturb a factfinder’s conclusion
regarding an award of future damages. Antonov, 168 S.W.3d at 908; see also
LMMM Houston #41, Ltd., 2018 WL 4137971, at *11.
Despite these well-accepted general principles, we are presented with a
question of apparent first impression for this court, i.e., whether a judgment based on
a jury verdict for future medical expenses that is otherwise supported by evidence of
other factors such as the nature and extent of medical care rendered before trial, the
permanent nature of plaintiff’s injuries and need for future care, and the plaintiff’s
condition at the time of trial, is supported by legally sufficient evidence if there is no
probative evidence of the reasonable cost of past medical care or the reasonable cost of
future medical care. Other courts of appeals have split on this question. We will hold
that the award is not supported by legally sufficient evidence under these
circumstances.
The evidence reflected that McDaniel, age 46 on the date of the occurrence,
developed a cervical facet joint syndrome as a result of this collision. This syndrome
involves damage to a nerve, causing pain. There was testimony on the debilitating
25
nature of McDaniel’s pain and the negative impacts on his life from suffering from
chronic pain. His treatment prior to trial included chiropractic care and physician pain
management including medications, multiple injections, cervical-medial-nerve-branch
blocks, and rhizotomy of the affected nerve. The medical testimony from his treating
physicians, Dr. Gregory Gardner (family practice and pain medicine) and Dr. Bradley
Eames (anesthesiologist and pain medicine), reflected that the facet joint syndrome
was permanent and that McDaniel would need additional nerve blocks and
rhizotomies every one to two years for the rest of his life. Although medical expense
affidavits under Texas Civil Practice and Remedies Code Section 18.001 were filed
and pre-admitted, they were subsequently withdrawn. See Tex. Civ. Prac. & Rem.
Code Ann. § 18.001. McDaniel testified he had paid $6,150 for the rhizotomy and that
he expected to incur similar amounts in the future for similar services. The billing
record for this procedure reflected payments by McDaniel of $2,300.
A letter from Dr. Gardner, dated February 13, 2019, recited that McDaniel’s
estimated future medical care would include MRIs; repeat cervical-medial-branch
blocks, rhizotomies, or both; and rehabilitative therapy. He stated that the cervical
medial branch blocks averaged $1,350 each and that McDaniel could require up to
three blocks every one to two years. Dr. Gardner further stated that physical
rehabilitation cost $200 per session with up to 24 sessions per year. He could not
comment on the cost of the rhizotomy or MRI. He made no comments on the
reasonableness of any of these charges.
26
There was also a treatment-record entry by a chiropractor, John Kaphart,
BSDC, on February 10, 2016, that McDaniel had a high probability of frequent
exacerbations of his problems and that in reasonable medical probability he would
incur future medical expenses estimated at $1,200 per year. Dr. Kaphart made no
reference to the reasonableness of the anticipated charges.
In short, although there was evidence reflecting charges that were incurred in
the past and estimates of future medical expenses, there was no expert testimony
regarding the reasonableness of McDaniel’s past medical expenses or anticipated future
medical expenses.
Our court has not dealt with this specific issue before. Our previous cases
involved appellate records that included evidence that supported the amount of
reasonable future medical costs: Perez, 2022 WL 17351581, at *7–8 (factual sufficiency
review with medical-expense affidavits for past medical expenses and expert
testimony); Antonov, 168 S.W.3d at 908–09 (expert testimony); Bush, 122 S.W.3d at863–64 (expert testimony); and Pipgras, 832 S.W.2d at 366 (expert testimony).
We will first address cases from our sister courts that have addressed similar
situations. A similar case supporting affirmance in this case is the Bill Miller Bar-B-Q
Enterprises, Ltd. v. Gonzales case. 2005 WL 2176079, at *1. Gonzales injured her back
when she fell on a defective toilet seat in the barbecue restaurant. Id.The court summarized the medical evidence as follows:
27
Gonzales’s physician, Dr. Mario Bustamante, testified that Gonzales
presented to him with complaints of low back pain radiating down her
left leg. Her symptoms were consistent with her diagnosis of a herniated
lumbar disk with a small fragment extrusion. Dr. Bustamante treated her
conservatively with a series of three epidural steroid injections, which
improved Gonzales’s condition but did not eliminate her pain. He
indicated that when he last saw Gonzales she had continuing back pain
and slightly improved leg pain. When asked about Gonzales’s long-term
prognosis, Dr. Bustamante stated that her condition “will require fairly
close follow-up and the treatment will be based on the patient’s
symptomatology.” Absent a worsening condition, such as paralysis or
loss of muscle control, surgery would not be recommended.
Additionally, pain without neurological deficit would be treated
conservatively, such as with epidural steroid injections. He stated that a
physician could administer a three-shot series of injections as often as
every year to alleviate an individual’s pain. According to Dr. Bustamante,
these epidural injections cost up to $2,000 per shot.
Id. at *2 (footnote omitted).
After reducing the future medical expenses award from $50,000 to $26,000 due
to lack of proof of need for future injections costing $24,000, the court affirmed the
balance of the jury’s award based on Dr. Bustamante’s testimony, Gonzales’s medical
condition and past treatment, and the jury’s award of past medical expenses of
$7,330. 6 Id. at *5. In her concurring and dissenting opinion, however, Justice Duncan
pointed out that there was no expert testimony that the charges for the proposed
future treatment were reasonable, for which reason she would have reversed the trial
court’s judgment awarding future medical expenses. Id. (Duncan, J., concurring and
dissentinting).
6
The opinion is silent regarding whether there was evidence of reasonableness
of the past medical charges. It just states that such was the amount shown as incurred.
28
Two cases that support reversal are Rosenboom Machine & Tool, Inc., 995 S.W.2d
at 828, and LMMM Houston #41, Ltd., 2018 WL 4137971, at *13–14. In Rosenboom, a
product liability case, Machala was sitting in a wheelchair being hoisted into a van.
Rosenboom, 995 S.W.2d at 819. The hoist failed and dropped her chair. Id. According to
her doctor, she suffered a vertebral fracture requiring hospitalization. Id. at 824, 826.
According to her family, this hospitalization lasted three to four weeks. Id. at 828. She
suffered severe pain, ongoing pain and disability, and additional medical treatment
until trial. Id. The parties stipulated that she had incurred reasonable and necessary
past medical expenses of $9,596.04. Id. The jury found, and the trial court awarded,
future medical expenses of $10,000. Id. at 820. The court of appeals reversed the
award of future medical expenses, holding that there was legally insufficient evidence
to support the award because there was no testimony establishing in reasonable
probability that Machala would require future care and the cost of such care. Id. at
828.
In LMMM, Santibanez tripped and fell at LMMM’s meat market. LMMM
Houston #41, Ltd., 2018 WL 4137971, at *1. He sought recovery for personal injuries
under a premises liability theory. Id. The jury found in Santibanez’s favor, awarding a
variety of damages, including future medical expenses of $120,000. Id. at *4. The trial
court reduced that amount to $20,000 in response to LMMM’s insufficient evidence
JNOV. Id. On cross-appeal, Santibanez challenged the granting of the JNOV,
29
contending that there was legally sufficient evidence to support the award of
$120,000 in future medical expenses. Id. at *9.
The evidence revealed that Santibanez had received extensive chiropractic care
and orthopedic care for low back, knee, and foot complaints and a neurological
referral for headache and memory issues. Id. at *11. He had an MRI of his back and
physical therapy. Id. As in our case, the court noted that the record contained
voluminous medical records from Santibanez’s multiple health-care providers, but
there was no testimony or affidavit proof of the reasonableness of the past medical
expenses and proof of such for future medical expenses. Id. at *12–13. Although
Santibanez testified that his past medical expenses totaled $19,396 (including a
breakdown by provider), and that he expected his future care to cost the same as his
past care, the court noted,
Although there is evidence to show that in all reasonable probability
Santibanez will require some medical care in the future, the evidence of
the actual cost of such future medical care is minimal at best.
Regarding the cost of his future medical care, the only evidence in the
record is Santibanez’s testimony as to the cost of his past medical care,
which totaled $19,396, and his opinion that if he were to continue
treatment at the Southeast Chiropractic Center or with Dr. Rodriguez,
which he was not at the time of trial, he would expect the costs to be
similar to what he had been previously charged in regard to those two
specific health care providers. But neither Santibanez’s testimony nor
any other evidence in the record can support the jury’s award of
$120,000 of future medical expenses. See Rosenboom Mach., 995 S.W.2d at
828 (insufficient evidence supported jury’s award of $10,000 for future
medical expenses where no testimony established cost of future medical
care).
30
Id. at *13 (emphasis added). The court followed its rationale in Rosenboom and affirmed
the trial court’s JNOV. Id. at *13–14.
In order to resolve this issue, we will first return to one of the general
principles underlying the review of awards of future medical expenses, that to recover
future medical expenses “the plaintiff must present evidence to establish that in all
reasonable probability, future medical care will be required and the reasonable cost of that
care.” Rosenboom, 955 S.W.2d 828 (emphasis added). So, how does one prove the
reasonable cost of future medical care? The preferred method is to establish future
medical expenses through expert medical testimony. Antonov, 168 S.W.3d at 908.
Here, no expert evidence on the reasonable cost of future care was offered.
What alternative is there to establishing the reasonable cost of future care other
than by expert testimony? The reasonable value of future medical care may be
established by evidence of the reasonable value of past medical treatment. See Whole
Foods Mkt., 979 S.W.2d at 781; Thate, 595 S.W.2d at 601. What is necessary to prove
reasonableness of past medical care? Generally, expert testimony is required to
establish that past medical expenses are reasonable. Perez, 2022 WL 17351581, at *6.
While a physician is usually the expert utilized for this task, other individuals may
qualify to opine on that topic depending on the procedural tools involved. See In re
Allstate Indem. Co., 622 S.W.3d 870, 876 (Tex. 2021); Gunn, 554 S.W.3d at 674; Perez,
2022 WL 17351581, at *6. In this case there was no testimony or documents in
evidence that addressed the reasonableness of past medical expenses. The only
31
evidence about past medical expenses was the amount paid, which is legally
insufficient to support a recovery of past or future medical expenses. Cotton Patch Café
v. McCarty, No. 2-05-082-CV, 2006 WL 563307, at *4 (Tex. App.—Fort Worth 2006,
no pet.) (mem. op.).
While acknowledging that awards of future medical expenses generally rest in
the sound discretion of the factfinder because of the uncertainties involved, we are
also cognizant of the fact that juries cannot be left to merely speculate about the
reasonable cost of future medical expenses. Harvey, 801 S.W.2d at 599 (“We will not
affirm an award of future medical expenses based on speculation.”). Because there
was no probative evidence of reasonable costs of either past or future medical
expenses from which the jury could make an assessment of reasonable future medical
expenses, we hold that the record in this case does not contain legally sufficient
evidence of the reasonable cost of future medical expenses to support the jury’s
answer to question 2(g) and the court’s judgment based thereon. We sustain Cross-
Appellants’ third issue.
IV. Conclusion
We overrule McDaniel’s issue on appeal. We overrule Cross-Appellants’ first
two issues on appeal, but we sustain their third issue. We will modify the judgment to
remove the award of future medical expenses for McDaniel. The judgment will be
affirmed as modified.
32
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: March 23, 2023
33