Wal-Mart Stores Texas, LLC v. Dawn Bishop

AFFIRM; and Opinion Filed June 19, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-00749-CV
WAL-MART STORES TEXAS, LLC, Appellant
V.
DAWN BISHOP, Appellee
On Appeal from the 162nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-14-00763
MEMORANDUM OPINION
Before Justices Lang-Miers, Fillmore, and Stoddart
Opinion by Justice Fillmore
Wal-Mart Stores Texas, LLC (Walmart) appeals the trial court’s judgment on a jury verdict
in favor of Dawn Bishop finding Walmart negligent on a theory of vicarious liability and awarding
damages to Bishop for personal injuries sustained when a box fell from a shelf in a Walmart store
and struck her on the head. In six issues, Walmart argues: (1) the evidence was legally insufficient
and, alternatively, factually insufficient to support the jury’s finding that the negligence of
Walmart’s employee proximately caused the box to fall from the shelf; (2) the evidence was legally
insufficient and, alternatively, factually insufficient to support the jury’s finding that Bishop’s
injury was proximately caused by the box falling on her head, and the trial court committed
reversible error by permitting Bishop to offer expert testimony when the expert had not been
adequately disclosed and was not a proper rebuttal witness; (3) the trial court abused its discretion
by denying Walmart’s Motion for Leave to File Counteraffidavits under civil practice and
remedies code section 18.001, and refusing to allow Walmart to present expert witness testimony
at trial on the reasonableness and necessity of Bishop’s medical expenses; (4) the trial court
committed reversible error by submitting an ambiguous question concerning vicarious liability in
the jury charge; (5) the evidence was factually insufficient to support the jury’s damage award for
physical pain, legally and factually insufficient to support the jury’s damage award for mental
anguish, and factually insufficient to support the jury’s damage award for physical impairment;
and (6) the trial court committed reversible error by allowing improper jury argument by Bishop’s
counsel. We affirm the trial court’s judgment.
Background
On July 7, 2012, Bishop went to a Walmart store to shop for curtains. While on her way
to the curtain department, she entered a clearance section in an area previously occupied by a fast
food restaurant. There is no dispute the clearance section was open to customers. At trial, Bishop
testified there was no caution sign or other indication the clearance section was dangerous or posed
a risk of injury. Photographs of the clearance section introduced into evidence depict multiple
adjustable, four to five tiered, metal shelving racks on wheels, sitting side by side in aisles and
along the walls. The shelves appear full to capacity with stacked merchandise, some of which is
haphazardly arranged. At trial, Bhola Gajurel, the Walmart employee whose negligence was
imputed to Walmart under a theory of vicarious liability, confirmed the photographs accurately
depicted the clearance section on the day of the accident.
Randy Dill, the Walmart manager who filled out an incident report with Bishop
immediately after the accident, testified that Walmart used temporary shelving units on wheels
called “plant racks” in the clearance section. He did not know whether the wheels on the plant
racks were locked. Unlike merchandise on the general sales floor, which was arranged and stacked
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in accordance with company standards and policies, Walmart “maintain[ed] no policies on how to
set up a clearance section,” and there was no “rhyme or reason as to how merchandise [was] kept
in the clearance section at Walmart.” Dill testified that falling merchandise is a serious hazard at
Walmart stores, and it is important to train employees concerning the danger posed by falling
merchandise and the proper stacking of merchandise on the shelves. Dill indicated that unlike the
general sales floor, there is access from either side of the plant racks in the clearance section.
Until Dill arrived after the accident, the only other person in the clearance section with
Bishop was Gajurel, who was stacking items on the shelves. According to Bishop, “[Gajurel] was
back there shelving and moving things on the shelf” while she was shopping. On the first aisle,
Bishop found some curtains, and proceeded to look for more. As she approached the second aisle,
she “looked down and saw some curtains that might be what [she] was looking for.” Bishop could
see Gajurel’s lower body on the other side of the shelving unit, and she could hear him stocking
merchandise. Bishop testified she “heard him pushing the merchandise that was in the same place
where the [box] was.” As she was bent down looking at curtains on the lowest rack, a box fell
from above and hit her on the back of the head. “[W]hen the box fell [onto Bishop’s head] and
[she] kind of yelled out,” “[Gajurel] came around from the other side [of the shelf].” Bishop
testified,
[H]e came around and he said, I’m sorry and are you hurt. And I asked him: Did
it put a – a cut in my hair? Is my head bleeding.
And he stood there and helped the – helped me look, and he said: No, ma’am, it’s
not any blood there.
And he asked did I need the manager, and I said yes.
Bishop indicated she neither touched the shelves in that row prior to the box falling on her head,
nor placed any merchandise back on any of the shelves in that section. Bishop stated she did not
see Gajurel cause the box to fall because she was looking down.
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According to Bishop, when Dill arrived at the clearance section, he filled out an incident
report with Bishop’s assistance, and asked Bishop to make a customer statement. While Bishop
was standing with Dill in the clearance section filling out the paperwork, Gajurel moved to the
other side of the shelf from where Bishop and Dill were located. As Bishop was filling out the
paperwork, Gajurel again started shelving items, and “he pushed something – it was a candle . . .
off the shelf and onto [Bishop],” “hit[ing her] foot.”
The customer statement Bishop filled out immediately after the incident was introduced
into evidence at trial,1 and corroborated Bishop’s testimony, stating,
While shopping in the clearance isles (sic) for curtains a heavy box on the top shelf
of a cart fell and hit me on my head. It was a box Cakesickle maker brand
Homemade approx 15 lbs.2 Wile (sic) completing this form a glass candle fell on
my foot.
Walmart’s incident report also substantiated Bishop’s trial testimony. It described the incident as,
“Box fell and struck customer on head,” and confirmed the incident caused “Bodily injury,”
specifically, “Neck was hurt.” Bishop testified that after leaving the store,
[She] went home and laid down. [Her] neck had started to get a little stiff and sore,
and [she] thought maybe [she] could sleep it off, so [she] laid down for about three
hours, got up, told [her] husband [she] wasn’t feeling good, and it was getting
worse. . . .
At that point, Bishop “went to the emergency room, CareNow.”3 At CareNow, Bishop was
diagnosed with a cervical strain and a head contusion caused by the box falling on her head.
Because she “started to feel worse,” Bishop returned to CareNow the following day, a Sunday,
then went to her primary care physician, Dr. Michelle Ho, on Monday. Dr. Ho prescribed physical
1
The customer statement was signed by Bishop and Dill, and dated July 7, 2012.
2
Bishop testified she did not have an opportunity to weigh the box at the time she filled out the incident report or thereafter. Bishop’s
statement the box weighed 15 pounds was her “perception” at the time of the accident and while filling out the incident report.
3
Bishop subsequently clarified that CareNow is an urgent care facility.
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therapy. Bishop completed two courses of physical therapy, which “last[ed] until about January
of 2013.”
Bishop testified that when she walked into Walmart on July 7, 2012, she did not have any
problem with her neck. After the incident and approximately six months of physical therapy,
“[she] was still in the pain. The pain still didn’t go away, so [she] knew that something else was
wrong. It – it never stopped.” Ultimately, Bishop saw a pain management physician; over a six
or seven month period, she received thirty-four steroid injections in her neck that required general
anesthesia; visited a chiropractor; completed at least four rounds of physical therapy; was
examined and treated by more than five physicians, including a neurosurgeon and an orthopedic
surgeon; and had cervical fusion surgery resulting in “two cages, . . . a plate and six screws in [her]
neck.” Bishop testified,
I’m still in pain. It – it’s still – I have good days, and I have bad days. The type of
work that I do, sitting at a computer all day, just having to do everyday things,
things that you may not think about until you’ve lived that day, now a day for me,
when I get up in the morning and brush my teeth and lean over the sink, that’s
painful for me. Taking a shower, that’s painful for me.
When I get in the car and I turn right and left, my head right to left, your body just
automatically does it, it just moves if you’re in traffic or something, but then I’m in
pain. So by the time I get to work, I feel like I’ve already worked a half a day.
So there’s no day for me without pain. I sit here now with pain. . . . It’s always
there.
Evidence at trial showed Bishop continues to experience pain across her neck and shoulders, as
well as throbbing in her eyes. Almost four years after the accident, Bishop, upon the
recommendation of her neurosurgeon, still receives physical therapy, and remains under the care
of various doctors.
The record indicates Bishop underwent back surgery in 2010 for degenerative disk
disease, but never complained about neck pain. According to Bishop, she was “pain free” and had
an active lifestyle prior to the accident. She is employed as an administrative executive assistant.
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Her job duties include typing, planning, special projects, and managerial responsibilities. Outside
of work, her everyday activities prior to the accident consisted of spending time with her children
and grandchildren; hosting dinners at her house; traveling to Austin to see family; sewing,
including ongoing sewing for a ministry; and attending church activities, such as workshops.
Bishop indicated she no longer engages in these activities as she used to. She is less active,
mentally alert, and creative because she is “in pain all the time.” The injury “changed [her] life.”
Now, she frequently leaves work and goes to bed. Bishop testified, “[Before the injury] I felt like
I was in total control. I’m not anymore. The pain controls me.”
Gajurel testified that on the day of the accident, he was employed at Walmart as a cashier,
and while at work was “very, very sick, so sick that [he] didn‘t know if [he] could work or not.”
He was called to rearrange some of the stock in the clearance section, items that “had fallen on –
from the places.” Gajurel “was barred from lifting heavy goods,” including heavy boxes. The
evidence at trial showed that Gajurel was not provided training or specific instruction “on what to
do” in the clearance section or the “dangers associated with falling merchandise,” because he was
a cashier and merchandise placement is “the responsibility of the stocker.” Gajurel testified he did
not “know how or why the box fell off the shelf,” he was standing with his “back to Ms. Bishop”
and not “on the opposite side of her at the very same rack when this box fell,” and he did not hear
the box fall. However, a little more than a week before his trial testimony, Gajurel stated in a
sworn discovery response that he believed Bishop manipulated the box and caused it to fall.
Gajurel further testified he would be fired if he had caused the box to fall and injure Bishop, stating,
“If I pushed [the box] then the . . . manager [would] . . . become upset. The manager is going to
fire me because if I hurt my customer, the Walmart customer.” Gajurel also stated he did not
“cause any glass candle to fall in this area on that day.”
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Walmart’s medical expert, Dr. Raymond Peeples, testified that, in his opinion based on a
review of Bishop’s medical records,4 Bishop’s neck injury was age-related and not caused by the
box falling on her head. Dr. Peeples observed that Bishop’s medical records showed she
underwent lumbar fusion surgery in March 2010 as a result of disk degeneration, yet “still ha[d]
pain in her lower back” in June 2011. According to Dr. Peeples, Bishop’s lower back pain fifteen
months after the lumbar fusion procedure indicated a “failure of surgery.” In his opinion, “[n]o
traumatic anatomy was discovered after the Walmart event. Findings six months later on cervical
MRI were age-related, normal findings of disk bulges.” Based upon a review of CareNow records,
Dr. Peeples testified Bishop’s “scalp showed no lesion. There was no hematoma.” In his opinion,
a “significant blow” would have resulted in “swelling, discoloration and enlargement,” and Bishop
had “no objective findings of a scalp abnormality.” Because Bishop had “[c]omplaints of neck
pain without findings,” Dr. Peeples opined she only had “a contusion and strain” as a result of the
box falling on her head. Dr. Peeples characterized Bishop’s headache after the accident as a
“[t]ension headach[e]” which is “frequently brought on by stress, driving, studying too many
hours. That’s not a headache from a blow to the head that should be present regardless of [one’s]
activities.”
Dr. Peeples further testified that because Bishop’s medical records indicated she had “[n]o
radiation of pain to arms or hand” on “the day or two” after the accident, she therefore showed no
symptoms of nerve injury; and an EMG report on Bishop indicated “there was no evidence of
nerve compression or nerve damage.” In Dr. Peeples’ opinion, after the box fell on her head,
Bishop “had symptoms attributed to a strain,” that got “steadily better,” and then “six months after
the event and a recovery,” Bishop suffered “[n]ew symptoms” from “a new condition.”
4
Dr. Peeples did not physically examine Bishop, and testified he was a paid expert witness for Walmart.
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On cross-examination, Dr. Peeples testified he knew the standards maintained by the
American Academy of Orthopedic Surgeons for orthopedic expert testimony required orthopedic
surgeons to review all pertinent medical records, including prior depositions, before rendering any
statement or opinion on the medical or surgical management of the patient. However, Dr. Peeples
admitted he had not read Bishop’s deposition testimony.
Dr. James Stanley, an orthopedic surgeon and one of Bishop’s doctors, testified that in his
opinion based on reasonable medical probability, Bishop’s neck injury, which ultimately resulted
in the need for spinal fusion surgery, was caused by the box falling on her head as she was “bent
forward looking down.”5 Dr. Stanley’s medical notes reflected,
[Bishop] had a box fall on her head and sustained an injury. That injury required
surgery. To my thinking, that spells out causation . . . .
According to Dr. Stanley, because Bishop was looking down when the box hit her head, “her neck
[was] in flexion,” which “means that the chin is – closer to the chest.” Bishop suffered an “axial
flexion injury” because the box fell on her head from above, causing her “neck to flex,” which
“load[ed] the spine. And flexion . . . is the worst position to load your cervical spine.” Dr. Stanley
further testified,
[When] a high school collegiate or professional football player . . . sustain[s] a
catastrophic cervical spine injury . . . it’s almost always in a flexed spine with an
axial load. That’s the absolute worst biomechanical position for your neck to be in.
....
[T]he disk is a circular ligament with a jelly inside. The jelly is the actual shock
absorber. . . . [The spine] is designed to take loads in extension. So the more flexed
you are when you’re subjected to an axial load, the more of that force, instead of
being dissipated equally, it goes . . . into the nucleus, which is the jelly. And when
. . . the center of rotation is forward of where it’s . . . supposed to be, the forces that
are directed towards . . . the jelly are then directed posterior towards the back.
....
5
Dr. Stanley testified he was not compensated for his testimony.
–8–
[I]n most of us, the weak link is what we call the annulus which is that circular ring
around the disk. . . . And so when you get an axial load in a flexed posture and the
weak link is the annulus, you get a disk bulge or a disk displacement or sometimes
an actual extrusion of disk material. . . . And the place that it typically goes is back
towards the spinal canal.
Dr. Stanley opined that, based on his review of Bishop’s medical records, Bishop did not
suffer from any type of degeneration in her spine, and “[Bishop’s] pain and resultant medical care
and medical treatment . . . [did not have] anything to do with degeneration in her cervical spine at
all.”
A jury found that Gajurel was negligent while acting within the course and scope of his
employment, his negligence proximately caused Bishop’s injury, and Walmart therefore was
negligent on a theory of vicarious liability. The jury awarded damages to Bishop in the amount of
$1,393,484.52, upon which the trial court rendered judgment.
Analysis
In six issues, Walmart argues: (1) the evidence was legally insufficient and, alternatively,
factually insufficient to support the jury’s finding that the negligence of Walmart’s employee
proximately caused the box to fall from the shelf; (2) the evidence was legally insufficient and,
alternatively, factually insufficient to support the jury’s finding that Bishop’s injury was
proximately caused by the box hitting her head, and the trial court committed reversible error by
allowing Dr. Stanley to offer expert testimony when his testimony had not been adequately
disclosed and he was not a proper rebuttal witness; (3) the trial court abused its discretion by
denying Walmart’s Motion for Leave to File Counteraffidavits under section 18.001 of the civil
practice and remedies code, and refusing to allow Walmart to present expert witness testimony at
trial on the reasonableness and necessity of Bishop’s medical expenses; (4) the trial court
committed reversible error in submitting an ambiguous question concerning vicarious liability in
the jury charge; (5) the evidence was factually insufficient to support the jury’s damage award for
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physical pain, legally and factually insufficient to support the jury’s damage award for mental
anguish, and factually insufficient to support the jury’s damage award for physical impairment;
and (6) the trial court committed reversible error by allowing improper jury argument by Bishop’s
counsel.
Sufficiency of the Evidence
Standard of Review
When, as here, an appellant attacks the legal sufficiency of the evidence to support an
adverse finding on an issue on which it did not have the burden of proof, it must demonstrate that
no evidence supports the adverse finding. Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348
S.W.3d 194, 215 (Tex. 2011); Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). In
determining whether the evidence is legally sufficient to support a finding, we consider the
evidence in the light most favorable to the verdict and indulge every reasonable inference that
would support it. City of Keller v. Wilson, 168 S.W.3d 802, 821–22 (Tex. 2005). We credit
favorable evidence if reasonable jurors could do so, and disregard contrary evidence unless
reasonable jurors could not. Id. “The final test for legal sufficiency must always be whether the
evidence at trial would enable reasonable and fair-minded people to reach the verdict under
review.” Id. at 827.
A legal sufficiency challenge will be sustained when there is a complete absence of
evidence of a vital fact; the court is barred by rules of law or of evidence from giving weight to
the only evidence offered to prove a vital fact; the evidence offered to prove a vital fact is no more
than a mere scintilla; or the evidence conclusively establishes the opposite of the vital fact. See
id. at 810; King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). If there is more than
a scintilla of evidence supporting the jury’s finding, the legal sufficiency challenge must fail. Id.
There is more than a scintilla of evidence “when the evidence as a whole rises to a level enabling
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reasonable and fair-minded people to have different conclusions.” Waste Mgmt. of Tex., Inc. v.
Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 156 (Tex. 2014). However, if the evidence is
so weak that it only creates a mere surmise or suspicion of its existence, it is regarded as no
evidence. Id. at 156.
In considering a challenge to the factual sufficiency of the evidence, we review the entire
record and may set aside the verdict only if it is against the great weight and preponderance of the
evidence. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). A finding is
against the great weight and preponderance of the evidence if it is clearly wrong, manifestly unjust,
or “shocks the conscience.” Id. The factfinder is the sole judge of the credibility of the witnesses
and the weight to be given their testimony. City of Keller, 168 S.W.3d at 819 (legal sufficiency
review); Golden Eagle Archery, Inc., 116 S.W.3d at 761 (factual sufficiency review). We may not
substitute our own judgment for that of the factfinder merely because we might reach a different
result. City of Keller, 168 S.W.3d at 819, 822–23; Golden Eagle Archery, Inc., 116 S.W.3d at 761.
Proximate Cause Element of Negligence Claim
To establish a negligence claim, the plaintiff must prove the defendant owed a duty to the
plaintiff, the defendant breached that duty, and the breach proximately caused the plaintiff’s injury.
Firestone Steel Products Co. v. Barajas, 927 S.W.2d 608, 613 (Tex. 1996). “The components of
proximate cause consist of cause in fact and foreseeability.” Rogers v. Zanetti, 518 S.W.3d 394,
402 (Tex. 2017). These elements cannot be established by mere conjecture, guess, or speculation.
Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). Proximate cause
may, however, be established by either direct evidence or circumstantial evidence and reasonable
inferences drawn from that evidence. Havner v. E–Z Mart Stores, Inc., 825 S.W.2d 456, 459 (Tex.
1992).
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Cause in fact requires “proof that (1) the negligent act or omission was a substantial factor
in bringing about the harm at issue, and (2) absent the negligent act or omission (‘but for’ the act
or omission), the harm would not have occurred.” Stanfield v. Neubaum, 494 S.W.3d 90, 97 (Tex.
2016) (quoting Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l. Dev. & Research Corp., 299
S.W.3d 106, 122 (Tex. 2009)). If a negligent act or omission merely creates the condition that
makes the harm possible, it is not a substantial factor in causing the harm as a matter of law.
See id.; IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 800 (Tex.
2004). “The evidence must go further, and show that such negligence was the proximate, and not
the remote, cause of resulting injuries . . . [and] justify the conclusion that such injury was the
natural and probable result thereof.” Doe, 907 S.W.2d at 477. However, the plaintiff need not
exclude all possibilities; it is sufficient to prove that the greater probability is that the defendant’s
conduct, alone or in contribution with others, was the cause of the harm. First Assembly of God,
Inc. v. Tex. Utils. Elec. Co., 52 S.W.3d 482, 493 (Tex. App.—Dallas 2001, no pet.). Nor must the
defendant’s negligence be the sole cause of the injury. Havner, 825 S.W.2d at 459. The issue is
whether there is any evidence from which reasonable minds could draw an inference that the
defendant’s negligent act caused the plaintiff’s injury. Id. “Whether other possible inferences
may be drawn from the evidence is not the relevant inquiry.” Id.
A plaintiff proves foreseeability of the injury by establishing that “a person of ordinary
intelligence should have anticipated the danger created by a negligent act or omission.” Stanfield,
494 S.W.3d at 97 (quoting Doe, 907 S.W.2d at 478). It is not necessary for the particular accident
complained of, or the precise manner in which the injury occurred, to be foreseeable. See Doe,
907 S.W.2d at 478. All that is required is the injury be of a general character that might be
reasonably contemplated as a result of the defendant’s conduct. Id. Foreseeability should be
measured in the light of common experience applied to human conduct. Id.
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Proximate Cause of Accident
In its first issue, Walmart contends the evidence was legally insufficient and, alternatively,
factually insufficient to support the jury’s finding that Gajurel was negligent, and his negligence
proximately caused the box to fall from the shelf and hit Bishop on the head. The jury was given
the following instructions:
“NEGLIGENCE” means failure to use ordinary care, that is, failing to do that
which a person of ordinary prudence would have done under the same or similar
circumstances or doing that which a person of ordinary prudence would not have
done under the same or similar circumstances.
“ORDINARY CARE” means that degree of care that would be used by a person
or ordinary prudence under the same or similar circumstances.
“PROXIMATE CAUSE” means a cause, that was a substantial factor in bringing
about an event, and without which cause such event would not have occurred. In
order to be a proximate cause, the act or omission complained of must be such that
a person using ordinary care would have foreseen that the event, or some similar
event, might reasonably result therefrom. There may be more than one proximate
cause of an event.
A single liability question was presented to the jury:
QUESTION 1
Did the negligence, if any, of Wal-Mart, proximately cause the occurrence in
question:
Wal-Mart was negligent if Bhola Gajurel was negligent while acting within the
course and scope of his employment.
Answer “Yes” or “No”
Answer: _______
The jury answered “Yes.” Walmart argues the evidence was legally insufficient to support the
jury’s finding that Gajurel was negligent because there was no evidence as to what caused the box
to fall from the shelf; what standard of care applied; or what conduct by Gajurel violated the
standard of care. Walmart argues in the alternative that the evidence is factually insufficient to
support the jury’s finding.
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As to cause in fact, there is evidence of record indicating Bishop was injured when a box
on the upper shelf of a temporary, wheeled shelving system in the clearance section fell on her
head as she was bent down looking at curtains on the bottom shelf. Immediately preceding the
accident, Bishop saw Gajurel’s lower body on the other side of the rack, and heard him stocking,
moving, and pushing merchandise around in the same area occupied by the box before it fell. Dill,
the Walmart manager who went to the clearance section to assist Bishop immediately after the
accident, testified that merchandise falling from shelves was a “serious hazard” at Walmart, and
employees assigned “zoning” duties (i.e. stacking and shelving merchandise) were trained on the
“danger of falling merchandise.” Unlike merchandise on the general sales floor, which was
specifically arranged and stacked in accordance with standards, policies, and a “modular” sent to
the stores by Walmart’s corporate offices that provide instructions on “where to exactly put each
individual box” on a shelf, the merchandise in the clearance section was haphazardly stacked, with
“no rhyme or reason” as to the arrangement of the items. Walmart did not have any standards or
policies that applied to the arrangement of merchandise in the clearance section. The evidence
also showed that Walmart invited and intended for customers to enter the clearance section.
Although he was employed and trained as a Walmart cashier, Gajurel was in the clearance
section at the time of the accident re-arranging and stacking items on the temporary shelving units.
Gajurel admitted he did not know “what to do” or how to properly stack the items, and had not
been informed of the dangers of falling merchandise. At trial, Gajurel testified he did not know
how or why the box fell, yet his sworn discovery response just a week prior to his testimony blamed
Bishop for manipulating the box and causing it to fall. Gajurel further testified he would be fired
if he had caused the box to fall and injure Bishop. Gajurel denied causing a glass candle to fall
and hit Bishop’s foot despite Bishop’s contemporaneous documentation of that event in the
incident report she filled out while standing in the clearance section with Dill.
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As to foreseeability, Dill testified that because Walmart was aware of the “serious hazard”
posed by merchandise falling from shelves and injuring shoppers, Walmart’s own standards and
policies required employees charged with stocking items on shelves to receive training on how to
properly shelve items to prevent merchandise from falling and injuring someone – training and
knowledge Gajurel lacked. Gajurel admitted he did not know “what to do” while stacking,
shelving, and re-arranging merchandise in the clearance section, a customer shopping space that
was not subject to store standards or policies regarding the stocking and placement of store
merchandise.
From this evidence, the jury could reasonably infer that the box fell due to Gajurel’s
negligent actions moving and stacking merchandise on the shelves in the clearance section, and
Walmart could reasonably foresee that boxes and other merchandise haphazardly stacked in the
clearance section could fall and injure a customer. While there was conflicting evidence as to
Gajurel’s precise whereabouts in the clearance section at the moment the box fell on Bishop, the
jury was entitled to believe Bishop’s testimony and reject any conflicting testimony.
We conclude there was more than a scintilla of evidence from which the jury could
reasonably have drawn the inference that Gajurel’s actions in moving and shelving merchandise
in the clearance section without the benefit of standards or policies for stocking merchandise on
the temporary, wheeled shelving units in that section, and without knowledge of “what to do” or
training on how to stock and shelve merchandise in that section, proximately caused the box to fall
on Bishop’s head. Thus, the evidence was legally sufficient to support the jury’s finding that
Gajurel was negligent and that his negligence was the proximate cause of the box falling from a
shelf and hitting Bishop on the head. King Ranch, 118 S.W.3d at 751. Further, the issue of
proximate cause is one of fact for determination by the jury, and the jury’s finding of negligence
was not so against the great weight and preponderance of the evidence that it is clearly wrong,
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manifestly unjust, or shocks the conscience. Golden Eagle Archery, 116 S.W.3d at 761.
Therefore, we conclude the evidence was factually sufficient to support the jury’s finding that
Gajurel was negligent and that his negligence was the proximate cause of the box falling from a
shelf and hitting Bishop on the head. We resolve Walmart’s first issue against it.
Proximate Cause of Injury
In its second issue, Walmart complains the evidence was legally insufficient and,
alternatively, factually insufficient to support the jury’s finding that Bishop’s injury was caused
by the box hitting her head. The record, however, contains testimony and documentary evidence
from which the jury could reasonably infer that the box falling from a shelf was the proximate
cause of Bishop’s neck injury.
Bishop testified that she did not have any problem with her neck when she walked into
Walmart on July 7, 2012. The testimonial and documentary evidence at trial showed that her neck
was injured when the box fell on her head. Walmart’s incident report stated, “Box fell and struck
customer on head,” causing “bodily injury,” specifically, “Neck was hurt.” Within hours of the
accident, Bishop went to an urgent care facility, where she was diagnosed with a cervical strain
and a head contusion. She returned to the urgent care facility the next day, and visited her doctor
on the third consecutive day following the accident. Thereafter, Bishop continuously received
treatment from physicians and other health-care providers, including physical therapy and invasive
surgery resulting in the placement of two cages, a plate, and six screws in her neck. At the time
of trial, Bishop remained under the care of physicians and other health-care providers, including
treatment and physical therapy for her neck pain.
Dr. Stanley testified that, based on reasonable medical probability, Bishop’s neck injury
was caused by the box falling on her head as she was “bent forward looking down,” necessitating
spinal fusion surgery in her neck. Dr. Stanley provided a detailed medical explanation of how a
–16–
box striking a person’s head in that position could cause severe neck trauma and injury, stating
“[t]hat’s the absolute worst biomechanical position for your neck to be in.” Although Dr. Peeples
testified that Bishop’s injury was age-related and not caused by the box falling on her head, it was
the role of the jury to assess witness credibility and weigh contradictory evidence.
Based upon Dr. Stanley’s testimony, Bishop’s medical records and testimony, Walmart’s
records of the accident, and the temporal proximity between the accident and Bishop’s immediate
neck pain and multiple visits to the urgent care facility, physicians, and other health-care providers,
there existed more than a scintilla of evidence from which the jury could reasonably infer that
Bishop’s neck injury was proximately caused by the box falling on her head while she was looking
down. See Guevara v. Ferrer, 247 S.W.3d 662, 666–68 (Tex. 2007) (“[W]hen combined with
other causation evidence, evidence that conditions exhibited themselves or were diagnosed shortly
after an event may be probative in determining causation.”). Thus, the evidence was legally
sufficient to support the jury’s proximate cause finding. King Ranch, 118 S.W.3d at 751. Further,
the issue of proximate cause is one of fact for determination by the jury, and the jury’s finding that
Bishop’s neck injury was proximately caused by the box striking her head while she was looking
down was not so against the great weight and preponderance of the evidence that it is clearly
wrong, manifestly unjust, or shocks the conscience. Golden Eagle Archery, 116 S.W.3d at 761.
Therefore, we conclude the evidence was factually sufficient to support the jury’s proximate cause
finding.
We resolve Walmart’s second issue against it.
Damage Awards
In its fifth issue, Walmart complains the evidence is factually insufficient to support the
jury’s damage award for physical pain, legally and factually insufficient to support the jury’s
damage award for mental anguish, and factually insufficient to support the jury’s damage award
–17–
for physical impairment.6 With respect to the jury’s damage award for physical pain, Walmart
simply states in its appellate brief that the evidence must be sufficient to show Bishop’s pain was
caused by the box falling on her head rather than from a prior surgery on the lumbar region of her
spine. Other than offering that single statement, Walmart does not provide substantive analysis of
its factual sufficiency issue, nor does it provide citations to applicable law. We therefore question
whether Walmart has presented anything for our review; an appellant’s failure to cite legal
authority or provide substantive analysis of a legal issue results in waiver of the complaint.
Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (observing that
error may be waived by inadequate briefing). With regard to the jury’s damage award for mental
anguish, Walmart argues Bishop’s testimony was generalized and conclusory, and not direct
evidence of the nature, duration, or severity of Bishop’s mental anguish. Finally, concerning the
jury’s damage award for physical impairment, Walmart argues Bishop failed to produce sufficient
evidence of those tasks or activities she can no longer perform, or a loss of the enjoyment of life
separate and apart from pain and suffering.
“The process of awarding damages for amorphous, discretionary injuries such as mental
anguish or pain and suffering is inherently difficult because the alleged injury is a subjective,
unliquidated, nonpecuniary loss.” Figueroa v. Davis, 318 S.W.3d 53, 62 (Tex. App.—Houston
[1st Dist.] 2010, no pet.) (internal citation omitted). The amount of damages awarded for pain and
suffering is necessarily speculative and each case must be judged on its own facts. Id. at 62.
Physical pain and suffering may be established through a plaintiff’s testimony or other evidence,
including circumstantial evidence. Ten Hagen Excavating, Inc. v. Castro-Lopez, 503 S.W.3d 463,
487 (Tex. App.—Dallas 2016, pet. denied); Christian Care Ctrs. v. O’Banion, No. 05-12-01407-
6
The jury awarded damages in the following amounts: $150,000 for physical pain and mental anguish sustained in the past; $125,000 for
physical pain and mental anguish that, in reasonable probability, Bishop will sustain in the future; $175,000 for physical impairment sustained in
the past; $250,000 for physical impairment that, in reasonable probability, Bishop will sustain in the future; and $693,484.52 for reasonable expenses
of necessary medical care incurred in the past.
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CV, 2015 WL 5013615, at *4 (Tex. App.—Dallas Aug. 25, 2015, no pet.) (mem. op.); HCRA of
Tex., 178 S.W.3d 861, 871 (Tex. App.—Fort Worth 2005, no pet.). If there is no direct evidence
of pain, the jury is permitted to infer the occurrence of pain from the nature of the injury. Ten
Hagen Excavating, 503 S.W.3d at 487.
Generally, an award of mental anguish damages must be supported by direct evidence that
the nature, duration, and severity of mental anguish was sufficient to cause, and caused, either a
substantial disruption in the plaintiff’s daily routine, or a high degree of mental pain and distress.
Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 231 (Tex. 2011); see also HCRA of Tex., 178 S.W.3d
at 871 (“The duration of the pain and mental anguish is an important consideration.”). There must
be evidence of the existence of mental anguish, and some evidence to justify the amount awarded.
HCRA of Tex., 178 S.W.3d at 871.
Physical impairment is a distinct injury from pain and suffering and includes limitations
on physical activities. See Estrada v. Dillon, 44 S.W.3d 558, 561–62 (Tex. 2001). “Physical
impairment is an element of damages that 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.” Day v. Domin, No. 05-14-00467-CV, 2015 WL 1743153, at *4 (Tex. App.—Dallas
Apr. 16, 2015, no pet.) (mem. op.) (quoting Dawson v. Briggs, 107 S.W.3d 739, 752 (Tex. App.—
Fort Worth 2003, no pet.)); see also Allen v. Whisenhunt, 603 S.W.2d 242, 244 (Tex. Civ. App.—
Houston [14th Dist.] 1980, writ dism'd w.o.j.) (to recover damages for future physical impairment,
one must have proof of physical impairment extending beyond impediment to earning capacity
and pain and suffering, and producing a substantial, distinctly separate loss). “Evidence of
physical impairment may include proof of the need for physical therapy and the inability to
participate in physical activities engaged in before the accident.” Pierre v. Swearingen, 331
S.W.3d 150, 156 (Tex. App.—Dallas 2011, no pet.) (citing Estrada, 44 S.W.3d at 561–62).
–19–
Evidence of difficulty accomplishing tasks may support an award for physical impairment
damages. Day, 2015 WL 1743153, at *4.
Once the existence of some pain, suffering, and mental anguish has been established, “[a]
great deal of discretion is given to the jury in awarding an amount of damages it deems appropriate
for pain and suffering.” Christian Care Ctrs., 2015 WL 5013615, at *4; PNS Stores v. Munguia,
484 S.W.3d 503, 517–18 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (“In personal injury
cases, the jury has discretion over the amount of damages.”); HCRA of Tex., 178 S.W.3d at 871.
The amount awarded is left to the discretion of the factfinder, because there is no objective way to
measure the adequacy of damages. Figueroa, 318 S.W.3d at 62–63. “Because jurors are the sole
judges of the credibility of witnesses and may choose to believe one witness and disbelieve
another, we must not substitute our opinion for that of the jury.” PNS Stores, 484 S.W.3d at 510.
The evidence at trial established that Bishop was prescribed no fewer than four rounds of
physical therapy beginning immediately after the box fell on her head, and continues to require
ongoing physical therapy; visited numerous physicians and other health-care providers; and
underwent numerous medical treatments, including a cervical fusion surgery resulting in the
placement of two cages, a plate, and six screws in her neck. At trial, Bishop testified that almost
four years after the accident, she is still in pain. She continues to experience pain across her neck
and shoulders, and throbbing in her eyes. She cannot engage in every-day activities as simple as
turning her neck while driving, showering, sitting at her computer for work, or leaning over the
sink while brushing her teeth without pain. The evidence showed Bishop’s injury now limits her
mobility, thereby preventing her from living her life as she did before the box fell on her head.
She no longer is able to spend time with her children and grandchildren, host dinners at her house,
sew, travel, and attend church activities as she did before the accident, and is generally less active,
mentally alert, and creative. She frequently leaves work and goes directly to bed. Bishop testified
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she has lost the control she previously had over her life because of the pain, stating, “[Before the
injury] I felt like I was in total control. I’m not anymore. The pain controls me.” The record
reflects that prior to the box falling on her head, Bishop never complained about neck pain,
including after undergoing back surgery in 2010.
Even if Walmart has not waived its argument that the evidence is factually insufficient to
support the jury’s damage award for physical pain, we conclude on this record that the evidence
of physical pain was not so weak that it can be said the jury’s award was clearly wrong, manifestly
unjust, or shocks the conscience. PNS Stores, 484 S.W.3d at 518 (headaches, ringing in ears,
severe pain in eye upon exposure to light, and soreness and stiffness in neck and shoulder for over
two years constitutes factually sufficient evidence to support damage award for physical pain).
Similarly, there is more than a scintilla of evidence supporting the jury’s damage award for mental
anguish and the evidence was not so weak that it can be said the jury’s award was clearly wrong,
manifestly unjust, or shocks the conscience. Id. (evidence of inability to shake off negative
feelings, inability to feel upbeat and happy, and “heart [no longer] in anything” constitutes
factually sufficient evidence to support mental anguish award). Finally, on this record the evidence
of physical impairment was not so weak that it can be said the jury’s award was clearly wrong,
manifestly unjust, or shocks the conscience. See Pierre, 331 S.W.3d at 156 (concluding evidence
plaintiff spent three months in physical therapy and sustained loss of full range of motion in neck
due to pain, limiting ability to drive and transport grandchildren, was legally and factually
sufficient to support physical impairment damage award); Day, 2015 WL 1743153, at *4.
We resolve Walmart’s fifth issue against it.
Admission of Evidence
In a sub-issue of its second issue, Walmart complains the trial court abused its discretion
in allowing Dr. Stanley to testify because Dr. Stanley was not adequately disclosed or a proper
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rebuttal witness. The discovery rule requiring disclosure of experts before trial is intended to
provide adequate information about the experts’ opinions to allow the opposing party to prepare
to cross-examine the experts and rebut the testimony with their own experts. Exxon Corp. v. W.
Tex. Gathering Co., 868 S.W.2d 299, 304 (Tex. 1993); Taylor Foundry Co. v. Wichita Falls Grain
Co., 51 S.W.3d 766, 773 (Tex. App.—Fort Worth 2001, no pet.); see also TEX. R. CIV. P. 194.2.
“The trial court is the gatekeeper of expert evidence, and [appellate courts] may not usurp
that responsibility.” Taylor Foundry Co., 51 S.W.3d at 773. We review the trial court’s decision
to allow expert testimony under an abuse of discretion standard. E.I. du Point de Nemours & Co.,
Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). “The test for abuse of discretion is whether
the trial court acted without reference to any guiding rules or principles,” id., “not whether, in the
opinion of the reviewing court, the facts present an appropriate case for the trial court’s action.”
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). The appellate court
must determine only whether allowing the testimony was “arbitrary or unreasonable.” Id. at 242.
“We must uphold a trial court’s evidentiary ruling if there is any legitimate basis in the record to
support it.” Rogers v. Alexander, 244 S.W.3d 370, 383 (Tex. App.—Dallas 2007, no pet.).
The record shows Bishop timely designated Dr. Stanley as a non-retained testifying expert,
but did not call on him to testify as part of her case in chief. Rather, Bishop called Dr. Stanley to
testify as a rebuttal witness concerning the testimony of Walmart’s testifying expert, Dr. Peeples,
that Bishop’s “pain and resultant medical care and medical treatment” were the result of the
degeneration of her cervical spine. In a hearing conducted outside of the presence of the jury, the
trial court reviewed Dr. Peeples’s report, and determined it did not state whether Bishop’s neck
injury was caused by the box striking Bishop’s head or a “pre-existing degenerative condition in
–22–
her neck.” On that basis, the trial court allowed Dr. Stanley to testify as a rebuttal witness on the
issue of causation.7 The trial court stated:
. . . I agree with [Bishop that the report did not address causation] because I can’t
discern from what . . . Defense counsel gave me as to . . . causation . . . . [B]asically
[Peeples] was just negating some of the medical records, but he never actually
stated that . . . [Bishop’s] injury was not caused by the falling of the [box].
The trial court specifically limited the scope of Dr. Stanley’s testimony to the issues of causation
and cervical degeneration. After considering the foregoing, we cannot conclude the trial court
abused its discretion by allowing Dr. Stanley’s rebuttal testimony. We resolve the sub-issue of
Walmart’s second issue against it.
In its third issue, Walmart contends the trial court abused its discretion by denying
Walmart’s Motion for Leave to File Counteraffidavits under Texas Civil Practice and Remedies
Code Section 18.001, and not allowing Walmart to present at trial the expert testimony of Dr. Brent
Morgan on the reasonableness and necessity of Bishop’s medical expenses. Bishop moved to
exclude Dr. Morgan as an expert witness on the ground that Walmart did not attempt to file a
section 18.001 counteraffidavit until late January 2016, long after the statutory deadline had
passed, even though Bishop timely began filing section 18.001 affidavits more than a year prior,
in early January 2015. Walmart argues the trial court, as a matter of fairness, should have permitted
Walmart to file a counteraffidavit by Dr. Morgan under section 18.001(e)(1), since it allowed
Bishop to challenge Walmart’s designation of Dr. Morgan as an expert witness thirteen days after
7
At the hearing, Walmart’s counsel tendered Dr. Peeples’ report to the court reporter as Defendant’s Exhibit B for inclusion in the record but
not for submission to the jury. While Defendant’s Exhibit B does not appear to be included in the record on appeal, it is not necessary to our
analysis of this issue since the hearing was recorded in the trial transcript which is included in the appellate record and Walmart does not challenge
the trial court’s characterization of the content of Dr. Peeples’ report.
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the deadline set forth in the agreed scheduling order.8 Bishop responds that when Walmart did not
timely file section 18.001 counteraffidavits, and did not seek leave to late-file counteraffidavits for
more than a year after she began filing section 18.001 affidavits, she “had every reason to believe
that [she] would not be required to arrange – and pay – for all of her treating physicians to testify
live at trial,” and it was not feasible to do so ten weeks before trial.
In a personal injury case, a claim for past medical expenses must be supported by evidence
that (1) the plaintiff’s injury was caused by the defendant’s negligence, and (2) the medical
treatment was necessary and the charges for that treatment were reasonable. See Ten Hagen
Excavating, 503 S.W.3d at 490–91. A plaintiff may present evidence concerning the
reasonableness and necessity of past medical expenses through expert testimony at trial or an
affidavit from the plaintiff’s health-care provider made in compliance with section 18.001 of the
civil practice and remedies code. Id. An opposing party intending to controvert a claim in a
medical expense affidavit must serve a counteraffidavit within the parameters prescribed in section
18.001. See id. at 492; see also TEX. CIV. PRAC. & REM. CODE ANN. § 18.001(e)–(f) (West 2015).
In pertinent part, section 18.001 provides,
(b) Unless a controverting affidavit is served as provided by this section, an
affidavit that the amount a person charged for a service was reasonable at the time
and place that the service was provided and that the service was necessary is
sufficient evidence to support a finding of fact by judge or jury that the amount
charged was reasonable or that the service was necessary.
....
(e) A party intending to controvert a claim reflected by the affidavit must serve a
copy of the counteraffidavit on each other party or the party’s attorney of record:
8
On appeal, Walmart also complains the trial court changed its position on allowing Bishop to challenge Walmart’s designation of Dr. Morgan
as an expert witness after the scheduling order deadline. Walmart argues that at a pre-trial hearing on February 22, 2016, the trial court stated any
challenges to expert testimony it had not already ruled on were deemed to be waived, including Bishop’s motion to exclude Dr. Morgan as an expert
witness; then, at a subsequent pre-trial hearing on February 26, 2016, the trial court allowed Bishop to challenge, pursuant to section 18.001,
Walmart’s motion for leave to file a counteraffidavit by Dr. Morgan. However, the trial court has wide discretion to enforce a scheduling order
and manage its docket, see Bagwell v. Ridge at Alta Vista Investment, I, LLC, 440 S.W.3d 287, 292 (Tex. App.—Dallas 2014, pet. denied), and the
trial court explicitly stated its decision on Walmart’s motion for leave to file counteraffidavit was based on the “clear” requirements of section
18.001.
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(1) not later than:
(A) 30 days after the party receives a copy of the affidavit; and
(B) at least 14 days before the day on which evidence is first presented at the trial
of the case; or
(C) with leave of the court, at any time before the commencement of evidence at
trial.
TEX. CIV. PRAC. & REM. CODE ANN. § 18.001(b), (e). “Section 18.001 is an evidentiary statute
that accomplishes three things: (1) it allows for the admissibility, by affidavit, of evidence of the
reasonableness and necessity of charges that would otherwise be inadmissible hearsay; (2) it
permits the use of otherwise inadmissible hearsay to support findings of fact by the trier of fact;
and (3) it provides for exclusion of evidence to the contrary, upon proper objection, in the absence
of a properly-filed controverting affidavit.” Hong v. Bennett, 209 S.W.3d 795, 800 (Tex. App.—
Fort Worth 2006, no pet.) (emphasis added).
Unless a controverting affidavit is served as provided by section 18.001, the initial affidavit
is sufficient evidence to support a jury’s finding that past medical expenses were reasonable and
necessary. Liang v. Edwards, No. 05-15-01038-CV, 2016 WL 7163841, at *2 (Tex. App.—Dallas
Nov. 23, 2016, no pet.) (mem. op.) (“The jury is not required to award a plaintiff the amount of
damages established in the affidavit, but if it chooses to do so, the affidavit is sufficient evidence
to support the jury’s finding that past medical expenses were reasonable and necessary.”). By
filing a counteraffidavit compliant with section 18.001, the defendant can preclude the plaintiff’s
affidavit from being used as evidence of the reasonableness and necessity of medical expenses,
and instead require the plaintiff to prove reasonableness and necessity by expert testimony at trial.
Liang, 2016 WL 7163841, at *2; see also Rountree v. Cavazos, No. 05-16-00512-CV, 2017 WL
2730422, at *1 (Tex. App.—Dallas June 26, 2017, no pet.) (mem. op.) (medical provider’s section
18.001 affidavit saves plaintiff expense of hiring expert to testify medical expenses were
reasonable and necessary). Among other requirements, the defendant must file and serve a copy
–25–
of the counteraffidavit not later than thirty days after receipt of the initial affidavit and at least
fourteen days before the day on which evidence is first presented at trial, or with leave of court at
any time before commencement of evidence at trial. TEX. CIV. PRAC. & REM. CODE ANN.
§18.001(e)(1). Because section 18.001 is an evidentiary statute, we review the trial court’s ruling
on the admission or exclusion of a section 18.001 affidavit under an abuse of discretion standard.
Liang, 2016 WL 7163841, at *2. We must uphold the trial court’s evidentiary ruling if there is
any legitimate basis in the record for the ruling. Id.
Bishop began filing section 18.001 affidavits pertaining to the reasonableness and necessity
of past medical expenses in January of 2015, and continued to do so until October of 2015. In
March of 2015, Walmart timely designated Dr. Morgan as a testifying expert witness and provided
Bishop with a copy of Dr. Morgan’s expert report. Walmart, however, failed to timely serve or
file a controverting affidavit of Dr. Morgan under section 18.001. As relevant to this appeal, on
January 25, 2016, Bishop filed a motion to exclude Dr. Morgan’s testimony on the issue of the
reasonableness and necessity of Bishop’s past medical expenses on the basis that Walmart failed
to timely file a section 18.001 controverting counteraffidavit. On January 29, 2016, Walmart filed
a motion for leave to file a counteraffidavit and response to Bishop’s motion to preclude Dr.
Morgan from testifying at trial. The trial court denied Walmart’s motion for leave to file
counteraffidavit, and the trial transcript reflects that Dr. Morgan did not testify at trial.
Walmart argues the trial court erred by excluding the controverting counteraffidavit of Dr.
Morgan and not permitting him to testify at trial regarding the reasonableness and necessity of
Bishop’s past medical expenses, because the timely designation or Dr. Morgan as a testifying
witness provided notice that Walmart had engaged a testifying witness on that issue. However,
“[o]ne of the purposes of a section 18.001 affidavit is that it ‘provides for exclusion of evidence to
the contrary, upon proper objection, in the absence of a properly-filed counteraffidavit.’” Ten
–26–
Hagen Excavating, Inc., 503 S.W.3d at 494 (internal citation omitted). Allowing Dr. Morgan to
testify would have undermined a purpose of the statute, which is to spare Bishop the expense of
hiring an expert witness to testify at trial if the issue of the reasonableness and necessity of medical
expenses has not been joined by Walmart’s filing of a counteraffidavit. See id. at 491, 494 (“in
the absence of a proper counteraffidavit, we cannot say that the trial court abused its discretion
when it excluded [doctor’s] trial testimony controverting the [plaintiffs’] section 18.001
affidavits”); see also Rountree, 2017 WL 2730422, at *1.
Timely filing of a section 18.001 affidavit is a condition precedent to its admission. See
Bituminous Cas. Corp. v. Cleveland, 223 S.W.3d 485, 493 (Tex. App.—Amarillo 2006, no pet.).
It is undisputed that Bishop timely filed section 18.001 affidavits. Walmart had sufficient notice
of the need to timely file a section 18.001 counteraffidavit, however it did not attempt to file a
counteraffidavit until long after the statutory deadline had passed. We conclude there was a
legitimate basis for the trial court to deny Walmart’s request for leave to late-file a counteraffidavit,
and, therefore, the court did not abuse its discretion in denying that request and declining to permit
Dr. Morgan to testify at trial.
We conclude the trial court did not act without reference to guiding rules or principles, and
there was a legitimate basis for its evidentiary rulings. Since the court did not abuse its discretion,
we resolve Walmart’s third issue against it.
Jury Charge Error
In its fourth issue, Walmart argues the trial court committed harmful error by failing to
limit the scope of Question 1 of the jury charge, and the related definitions of “negligence” and
“ordinary care,” to a theory of liability based solely on the conduct of Gajurel. Walmart does not
contend the trial court’s definitions or instructions misstated the law. Rather, Walmart claims the
instructions were ambiguous, and confused the jury by failing to include Gajurel’s name in the
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definitions of “negligence” and “ordinary care,” and “advise jurors [in Question 1] that Wal-Mart
was negligent only if Gajurel was negligent.”
Trial courts have broad discretion in formulating a charge to submit disputed issues to the
jury. Varme v. Gordon, 881 S.W.2d 877, 881 (Tex. App.—Houston [14th Dist.] 1994, writ
denied). The standard of review for jury charge error is abuse of discretion. Webb v. Glenbrook
Owners Ass’n. Inc., 298 S.W.3d 374, 380 (Tex. App.—Dallas 2009, no pet.) (“We review claimed
error in the court’s charge under an abuse of discretion standard.”). A trial court abuses its
discretion if it acts in an arbitrary or unreasonable manner, or if it acts without reference to guiding
rules or principles. Downer, 701 S.W.2d at 241–42. To determine whether an alleged error in the
jury charge is reversible, we must consider the pleadings of the parties, the evidence presented at
trial, and the charge in its entirety. Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass’n,
710 S.W.2d 551, 555 (Tex. 1986). We do not reverse for jury charge error in the absence of harm.
See Lone Star Gas Co. v. Lemond, 897 S.W.2d 755, 756–57 (Tex. 1995) (per curiam). For harm
to result, the error must probably cause the rendition of an improper judgment. TEX. R. APP. P.
44.1(a)(1); Friday v. Spears, 975 S.W.2d 699, 700 (Tex. App.—Texarkana 1998, no pet.) (“Error
in the jury charge is reversible only if it probably caused the rendition of an improper verdict.”).
The rules of civil procedure require the trial court to submit the cause upon broad form
questions when feasible, and to submit such instructions and definitions as shall be proper to enable
the jury to render a verdict. TEX. R. CIV. P. 277. A proper instruction is one that assists the jury,
correctly states the law, and is supported by the pleadings and evidence. Latham v. Burgher, 320
S.W.3d 602, 606 (Tex. App.—Dallas 2010, no pet.). The trial court has broad discretion in
submitting explanatory instructions and definitions as long as the charge is legally correct.
Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 664 (Tex. 1999). After the jury has retired for
deliberations, the trial court may supplement its instructions “touching any matter of law.” See
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TEX. R. CIV. P. 286. The trial court may also supplement its instructions in response to a question
from the jury during deliberations. See id.
To preserve error in the charge, the objecting party must present a complaint to the trial
court that distinctly designates the error and grounds for the objection. See TEX. R. APP. P. 33.1(a);
TEX. R. CIV. P. 272, 274; Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 43 (Tex. 2007). Any
complaint pertaining to an instruction is waived unless specifically included in the objection.
Sears, Roebuck & Co. v. Abell, 157 S.W.3d 886, 891 (Tex. App.—El Paso 2005, pet denied).
Objections to the charge and requests for instructions must comport with the arguments made on
appeal. Cont’l Cas. Co. v. Baker, 355 S.W.3d 375, 383 (Tex. App.—Houston [1st Dist.] 2011, no
pet.). If the objection at trial is not the same as the complaint on appeal, the issue has not been
preserved for review. Id.
As discussed, supra, a single liability question was presented to the jury:
QUESTION 1
Did the negligence, if any, of Wal-Mart, proximately cause the occurrence in
question:
Wal-Mart was negligent if Bhola Gajurel was negligent while acting within the
course and scope of his employment.
Answer “Yes” or “No”
Answer: _______
The jury answered “Yes.” There is no dispute the trial court defined “negligence” and “ordinary
care” in accordance with the Texas Pattern Jury Charges. Question 1 instructed the jury concerning
the single means by which Walmart could be found liable for negligence, “Wal-Mart was negligent
if Bhola Gajurel was negligent while acting within the course and scope of his employment”
(emphasis added). The single liability question, which incorporated the term “negligence” as
defined by the charge, is explicitly limited to the acts of Gajurel within the course and scope of his
employment. On this record, we cannot conclude the definitions of “negligence” and “ordinary
–29–
care,” which are taken directly from the Texas Pattern Jury Charges, are so ambiguous that the
jury would have been confused as to the meaning of the liability question or the basis of Walmart’s
alleged negligence.
At the charge conference, Walmart proposed the following language for inclusion in the
jury instructions: “Wal-Mart was negligent if Bhola Gajurel was negligent while acting within the
course and scope of his employment.” In support of this proposed instruction, Walmart argued
that only Gajurel’s “conduct” should be at issue in Question 1, stating to the court, “for Question
1, [the jury is] supposed to look at the world of Mr. Bhola” and that the instruction should not
include language regarding “the way [Walmart] handled hiring and retaining or supervising or
training [Gajurel].” The trial court overruled an objection by Bishop, and submitted Walmart’s
proposed language to the jury.9 Walmart cannot now complain that Question 1 “did not advise
jurors that Wal-Mart was negligent only if Gajurel was negligent.” See id.; C.M. Asfahl Agency v.
Tensor, Inc., 135 S.W.3d 768, 785 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (“a party waives
claimed error in the charge when that party proposes to submit a substantially similar charge to the
jury”). See also TEX. R. APP. P. 33.1; TEX. R. CIV. P. 272, 274; Ledesma, 242 S.W.3d at 43. Even
if the asserted error had not been waived, Question 1 required the jury to determine whether
Gajurel “was negligent while acting within the course and scope of his employment.” Only
Gajurel’s actions and conduct are addressed and at issue in Question 1, and the question properly
9
In a post-submission filing, Walmart directed our attention to the Supreme Court’s opinion in Benge v. Williams, No. 14-1057, –S.W.3d–,
2018 WL 2374640 (Tex. May 25, 2018). Benge involved a health care liability claim in which the evidence showed multiple possible bases for the
defendant’s negligence, including a basis not asserted by the plaintiff. The defendant requested the jury be instructed that it could not consider the
basis not asserted by the plaintiff. The trial court refused the requested instruction. The Supreme Court concluded on appeal that because it could
not determine whether the jury found liability on an improper basis, it was required to presume the error in denying the limiting instruction was
harmful. Benge does not impact our analysis because Walmart received the instruction it requested.
–30–
provided only one theory – Gajurel’s actions and conduct – upon which Walmart could be found
negligent.10
We find no abuse of discretion in the trial court’s instructions to the jury in Question 1 and
related definitions, and resolve Walmart’s fourth issue against it.
Jury Argument
In its sixth issue, Walmart complains the judgment should be reversed because the trial
court allowed Bishop’s trial counsel, Daryoush Toofanian, to make improper jury arguments that
discussed theories of liability not submitted to the jury; characterized Walmart in a manner
intended to inflame the passion of the jury; misled the jury as to the reason Walmart did not present
evidence on the reasonableness and necessity of Bishop’s past medical expenses; and characterized
conflicting sworn statements by Gajurel as constituting “perjury.”
Control over counsel during closing argument is within the sound discretion of the trial
court and will not be disturbed on appeal without a clear showing of abuse of that discretion. Duke
v. Jack in the Box E. Div., L.P., No. 14-15-00798-CV, 2017 WL 2561245, at *2 (Tex. App.—
Houston [14th Dist.] June 13, 2017, pet. denied) (mem. op.); Mandril v. Kasishke, 620 S.W.2d
238, 247 (Tex. App.—Amarillo 1981, writ ref’d n.r.e.).11 Improper jury argument can be ‘curable’
or ‘incurable.’ See PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699, 721 (Tex.
App.—Dallas 2011, pet. denied). A jury argument is curable when the harmful effect of the
argument could be eliminated by a trial judge’s instruction to the jury to disregard the improper
argument. Living Ctrs. of Tex., 256 S.W.3d at 680–81; Otis Elevator Co. v. Wood, 436 S.W.2d
10
Walmart points to a jury note sent to the trial court during deliberations inquiring whether Walmart was negligent only if Gajurel was
negligent, in support of its argument that Question 1 permitted a determination Walmart was negligent for some act independent of the conduct of
Gajurel. After receiving the note from the jury, the trial court indicated to the parties that it intended to direct the jury to read and follow the charge
as written. Walmart responded “No objection. I think we might get the question again, but that’s fine.” The trial court then responded to the jury
note by directing the jury to follow the charge as written. Because Walmart accepted and did not object to the court’s response, it waived any error
on that basis. Tensor, 135 S.W.3d at 785.
11
See also Rothenberg v. Tucker, No. 05-92-00558-CV, 1993 WL 155878, at *8 (Tex. App.—Dallas May 10, 1993, no writ) (not designated
for publication) (citing id.) (“Control over counsel during a trial rests within the sound discretion of the trial court, and it is uniformly held that a
reviewing court will not interfere unless it is clear that the trial court abused its discretion in this regard.”).
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324, 333 (Tex. 1968); PopCap Games, 350 S.W.3d at 721; Clark v. Bres, 217 S.W.3d 501, 509
(Tex. App.—Houston [14th Dist.] 2006, pet. denied). To preserve error on a jury argument that is
improper but curable, the objecting party must, at the time the argument occurs, promptly object,
obtain a ruling on its objection, and, if the objection is sustained, request an instruction that the
jury disregard the improper remark. See Living Cntrs. of Texas, Inc. v. Penalver, 256 S.W.3d 678,
680 (Tex. 2008) (per curiam) (“Error as to improper jury argument must ordinarily be preserved
by a timely objection which is overruled.”); PopCap Games, 350 S.W.3d at 721 (to prevail on
claim concerning improper jury argument, appellant must prove: (1) improper jury argument was
made; (2) that was not invited or provoked; (3) that was preserved by proper objection or other
predicate; and (4) that was not curable by instruction, prompt withdrawal of statement, or
reprimand by court).
In rare cases, an improper argument is considered incurable, and a contemporaneous
objection is not required. PopCap Games, 350 S.W.3d at 721. A complaint of incurable jury
argument may be asserted and preserved in a motion for new trial. See TEX. R. CIV. P. 324(b)(5);
Nguyen v. Myers, 442 S.W.3d 434, 442 (Tex. App.—Dallas 2013, no pet.). An improper jury
argument is incurable when it is so inflammatory and prejudicial that its harmfulness could not be
eliminated by an instruction to the jury to disregard it. Id. “The party claiming incurable harm
must persuade the court that, based on the record as a whole, the offensive argument was so
extreme that a ‘juror of ordinary intelligence could have been persuaded by that argument to agree
to a verdict contrary to that to which he would have agreed but for such argument.’” Metrop.
Transit Auth. v. McChristian, 449 S.W.3d 846, 855 (Tex. App.—Houston [14th Dist.] 2014, no
pet.) (quoting Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009)). “Reversal of the judgment
will follow where, after evaluation of the whole case, from voir dire to jury argument, it is shown
that the probability that the improper argument caused harm is greater than the probability that the
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verdict was grounded on the proper proceedings and evidence.” Williams v. Lavender, 797 S.W.2d
410, 413 (Tex. App.—Fort Worth 1990, writ denied); see also Khan v. Chai Road, Inc., No. 05-
16-00346-CV, 2017 WL 3015727, at *2–3 (Tex. App.—Dallas July 17, 2017, no pet.) (mem. op.)
(citing Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839—40 (Tex. 1979)). Incurable jury
argument generally encompasses statements that “strike at the courts’ impartiality, equality, and
fairness” because they “inflict damage beyond the parties and the individual case under
consideration if not corrected.” Living Ctrs. of Tex., 256 S.W.3d at 681. Instances of incurable
jury argument include appeals to racial prejudice; unsupported charges of perjury; unsupported,
extreme, and personal attacks on opposing parties and witnesses; and baseless accusations of
witness tampering. Metrop. Transit Auth., 449 S.W.3d at 855. “There are only rare instances
of incurable harm from improper argument.” Standard Fire Ins. Co., 584 S.W.2d at 839.
While Walmart did not preserve its improper jury argument claims by making
contemporaneous objections and obtaining rulings on the record at trial, it filed a motion for new
trial that, excepting its complaint that Toofanian characterized Gajurel’s conflicting sworn
statements as perjury, included its improper jury argument claims now asserted on appeal. We
therefore must determine whether these closing arguments to the jury challenged in Walmart’s
motion for new trial constituted “rare” instances of arguments that “strik[e] at the appearance of
and the actual impartiality, equality, and fairness of justice rendered by courts,” causing incurable
harm to the complaining party and judicial system. See Living Ctrs. of Tex., 256 S.W.3d at 681.
Walmart first complains that although the trial court submitted a single theory of
negligence to the jury based upon vicarious liability for the conduct of Gajuirel, Toofanian argued
facts supporting premises liability and negligent training theories in closing argument.
Specifically, Walmart complains of the following statements in Toofanian’s closing argument:
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“[T]here was no rhyme and no reason as to how this section was organized.”
“We know that there was merchandise scattered on the floor.”
“[Walmart] didn’t tell us that it was a mess, so – you be the judge.”
“Tell me if there’s enough room between the shelves where somebody can . . .
safely work back there.”
“We know that he was not given any specific instruction on restocking the area
where he was. We know that nobody advised him on the dangers of falling
merchandise. . .”
“The fact is that Walmart refuses to admit that if they did not put a sick and
undertrained working (sic) in that zone of danger, he would not have knocked that
box off the shelf.”
“Properly train your people. Don’t send this kid back there who’s sick, who – who
doesn’t know what he’s doing in this war zone without the appropriate training.”
“[H]e was very untrained.”
Walmart does not contend these statements concerning Gajurel’s work stocking and shelving items
in the clearance section were unsupported by evidence presented at trial. Rather, Walmart argues
these are “facts that have no bearing on the legal issue the jury [was] to decide,” that is, whether
Gajurel’s negligence caused the box to fall. The complained of statements bear on the negligence
of Gajurel; however, even if Toofanian’s statements were improper, they did not rise to the level
of incurable jury argument. They did not involve appeals to racial prejudice, extreme or personal
attacks on the opposing party, or inflammatory epithets. Nor, “after evaluation of the whole case,”
is it probable that any alleged harm caused by the statements was “greater than the probability that
the verdict was grounded on the proper proceedings and evidence.” Williams, 797 S.W.2d at 413.
Next, Walmart complains that Toofanian’s use of the term “Walmart treatment,” referring
to Walmart’s witness as a “hit man,” and characterization of Bishop as a “victim” were incurably
inflammatory and prejudicial. Jury argument is designed to be persuasive and is not intrinsically
improper as long as it is based on facts and issues raised by the evidence, and is not so
inflammatory as to cause the rendition of an improper verdict. See Standard Fire Ins., 584 S.W.2d
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at 838. “Hyperbole is also generally a permissible rhetorical technique in closing argument.”
PopCap Games, 350 S.W.3d at 721. So long as the verdict was grounded on the record and
evidence, argument designed to appeal to hatred or arouse sympathy for a party is not incurable.
See Standard Fire Ins., 584 S.W.3d at 839–40. To the extent these statements by Toofanian were
improper, they were not so inflammatory and incurably harmful as to “strik[e] at the appearance
of and the actual impartiality, equality, and fairness of justice rendered by courts,” and did not
constitute incurable jury argument. Living Ctrs. Of Tex., 256 S.W.3d at 681; see also Metro.
Transit Auth., 449 S.W.3d at 855 (making reference to opposing counsel and asking “what kind of
snake oil is he selling you” is not incurable jury argument).
Walmart also argues that Toofanian’s statement to the jury that Walmart did not present
evidence on the reasonableness and necessity of Bishop’s medical expenses because “they know
it’s expensive” was false and severely prejudicial. Counsel must confine argument strictly to the
evidence and to the arguments of opposing counsel. TEX. R. CIV. P. 269(e). Toofanian’s
misleading statement to the jury was improper because Walmart was precluded by the court from
introducing evidence on the reasonableness and necessity of Bishop’s medical expenses.
However, the statement was not incurably harmful. In determining whether an improper argument
caused harm, an appellate court must look at the length of the argument, whether it was repeated
or abandoned, whether there was cumulative error, and the probable effect of the argument on a
material finding. Standard Fire Insurance Co., 584 S.W.2d at 839–40. Toofanian’s improper
statement concerning Walmart’s failure to present evidence on the reasonableness and necessity
of Bishop’s medical costs was not incurable because the statement was short and not repeated.
Additionally, even if Toofanian had not made the misleading statement, the only evidence before
the jury on the reasonableness and necessity of medical expenses was Bishop’s section 18.001
affidavits, and “[t]he jury is not required to award a plaintiff the amount of damages established in
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the affidavit[s] . . . .” Liang, 2016 WL 7163841, at *2. Thus, we cannot say the probability that
the improper argument caused harm was greater than the probability that the verdict was grounded
on the proper proceedings and evidence. Haryanto v. Saeed, 860 S.W.2d 913, 921 (Tex. App.—
Houston [14th Dist.] 1993, writ denied).
Finally, Walmart complains of Toofanian’s suggestion in closing arguments that Gajurel
committed perjury when he stated twice in trial testimony that he did not know why the box fell
from the shelf or see it fall, yet stated in his sworn discovery responses that he believed Bishop
caused the box to fall by manipulating it. Walmart did not object to Toofanian’s statement at trial
or in its motion for new trial, and thereby waived any alleged error concerning improper argument.
However, even if Walmart’s objection had been preserved for appellate review, Toofanian’s
statement was not incurable jury argument. While unsupported accusations of perjury may
constitute incurable jury argument, Toofanian’s statements were not unsupported. Rather, the
argument emananted directly from testimony and evidence presented at trial. Gajurel provided
conflicting sworn statements on why the box fell, which were admitted as evidence for the jury’s
consideration. Gajurel’s trial testimony confirmed that, a little more than a week prior to his
testimony at trial, he provided the following information in response to Plaintiff’s First Set of
Interrogatories, and understood he signed the responses under oath and that he “[had] to tell the
truth”:
Interrogatory No. 3: Please state those facts which you contend establish that the
incident in question was caused solely and/or proximately by a new and
independent cause, and described each such new and independent cause.
....
First Supplemental Answer: Defendant believes plaintiff manipulated the shelved
merchandise is (sic) such a way as to cause the merchandise to become unstable
and fall.
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At trial, however, Gajurel – the only other person in the clearance section at the time the box fell
and hit Bishop on the head – provided the following testimony:
Q: Now isn’t it true, Mr. Gajurel,that you didn’t see what happened in this incident?
A: No, I didn’t see. I came to know when she called me and showed this thing.
....
Q: And you don’t know how or why the box fell off the shelf?
A: She was the only person there, so I didn’t see how that – that box fell.
Q: Okay. And it’s your test – and you’ve testified in this case that you don’t know
how or why the box fell off the shelf?
A: Yes. . . . That’s correct.
Toofanian argued that Gajurel’s “story has changed significantly.” Additionally, Toofanian’s
closing argument identified other conflicting trial testimony provided by Gajurel. Toofanian
questioned how Gajurel could make an affirmative statement about Bishop’s “position in the
[clearance] section” while claiming “that his back was turned to Mrs. Bishop while he was in the
clearance section.” Toofanian’s suggestion that Gajurel’s conflicting statements regarding the
cause of the box falling on Bishop’s head constituted perjury was not unsupported, but was
reasonably based on or may be inferred from the evidence produced at trial. It therefore did not
constitute incurable jury argument. See Duke, 2017 WL 2561245, at *5–6.
We conclude Toofanian’s jury arguments were not “so extreme that a ‘juror of ordinary
intelligence could have been persuaded by that argument to agree to a verdict contrary to that to
which he would have agreed but for such argument.’” Phillips, 288 S.W.3d at 883. We resolve
Walmart’s sixth issue against it.
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We affirm the trial court’s judgment.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE
160749F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
WAL-MART STORES TEXAS, LLC, On Appeal from the 162nd Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. DC-14-00763.
No. 05-16-00749-CV V. Opinion delivered by Justice Fillmore,
Justices Lang-Miers and Stoddart
DAWN BISHOP, Appellee participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee DAWN BISHOP recover her costs of this appeal from
appellant WAL-MART STORES TEXAS, LLC.
Judgment entered this 19th day of June, 2018.
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