Diana J. Kemp v. Rebecca D. Havens

Affirmed and Memorandum Opinion filed April 27, 2006

Affirmed and Memorandum Opinion filed April 27, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00060-CV

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DIANA J. KEMP, Appellant

V.

REBECCA D. HAVENS, Appellee

On Appeal from the County Civil Court at Law No. 4

Harris County, Texas

Trial Court Cause No. 799,030

M E M O R A N D U M   O P I N I O N

Rebecca D. Havens sued Diana J. Kemp for personal injuries resulting from an automobile collision on the Gulf Freeway in Houston.  Havens alleged that Kemp=s negligence caused her to suffer severe back and neck pain and to incur various damages.  At trial, Kemp stipulated to liability, and Havens was the only witness to testify.  The jury awarded Havens damages for past medical expenses, past physical pain and suffering, and past physical impairment.  On appeal, Kemp challenges the causal link between the collision and the damages awarded.  Specifically, she claims that some evidence of newly herniated disks was improperly admitted before the jury and that part of the damages awarded Havens may be based on this improper evidence.  Kemp also contends the trial court committed cumulative error by allowing Havens to testify that she might need future surgery.  For the reasons discussed below, we affirm.

The Trial

Rebecca Havens testified that she suffered several Abulging disks@ in her lumbar spine in 1999 as a result of a heavy dresser falling on her.  She consulted Dr. Murphy, a neurosurgeon, and Dr. Awitan, an orthopedic surgeon, and eventually had a laminectomy with fusion surgery on her back.  Havens continued to have follow-up care with the two doctors. As part of her care, Havens had several post-surgery MRIs of her spine, including one performed approximately two months before the collision.

The collision occurred on February 14, 2002.  Havens testified that, upon impact, her head Apopped back, forward and back.@  Right after the accident, she had a headache, which she believed to be stress-related, and did not report any injuries to the police officer at the scene.  Later that night, she began to suffer neck and back pain, and went to the emergency room.  There, after undergoing x-rays and tests, she was diagnosed as having whiplash.  The emergency room doctors told Havens to see the physician who treated her for her previous back troubles.

After the collision, Havens again saw Dr. Awitan, who reviewed her x-rays and also diagnosed her with whiplash.^[1]  He instructed her to have another MRI performed.  The findings on this MRI included references to Aherniation@ in the same areas of Havens= spine that were identified in the pre-collision MRIs.^[2]  Havens read the MRI findings to the jury without objection by Kemp.^[3]  Over objection, Havens testified that to her knowledge she did not have the herniation before the collision.  She also testified that she might need surgery in the future. 

Before the collision, Havens testified, she had not had any problems with her neck. She also felt good enough to discontinue the pain medication she had been taking for her back.  And, although she was still unable to pick up her children, she had begun to engage in more daily activities around the home, and no longer wore a brace.  Since the collision, however, she told the jury, she has suffered pain in her neck and worsened back pain.  She also suffers from frequent headaches, and her daily activities are more limited. Her pain has altered her physical relationship with her husband and affected her work.  Havens= medical bills, totaling $8,650.26, were admitted into evidence without objection.

On cross-examination, Havens acknowledged she had preexisting physical ailments; she was diagnosed with degenerative disk disease and lumbar spondylosis, and she suffered from arthritis pain.  Havens also admitted that she did not quit smoking as her doctor advised her, despite a warning that she might need surgery again if she did not quit.  Havens also acknowledged that the MRI taken shortly before the collision showed that her preexisting condition had worsened. On redirect, Havens= counsel sought to ask Havens to compare the pre- and post-collision MRIs, but the trial court sustained Kemp=s counsel=s objections on the grounds that an expert witness was needed to testify concerning the interpretation of the MRIs. 

After the defense rested, Kemp moved for a directed verdict on the issue of future medical expenses, arguing that Havens had presented no testimony or other evidence of a dollar amount for future medical expenses.  The trial court agreed and removed a jury question on that issue. Kemp made no other objections to the jury charge.

The jury awarded Havens $8,650.26 for past medical expenses, $5,000.00 for past physical pain and suffering, and $2,000.00 for past physical impairment.  The jury awarded zero damages for future pain and suffering and future physical impairment.  The trial court signed a judgment for Havens on October 14, 2004.

Analysis of Issues

1.       Legal and Factual Sufficiency

In her first issue, Kemp contends the jury=s award of damages is legally and factually insufficient to the extent it includes damages incurred as a result of allegedly herniated disks, because expert testimony is required to establish a causal nexus between her conduct and Havens= alleged disk herniation.

A.      Standards of Review

When both legal and factual sufficiency challenges are raised on appeal, we must first examine the legal sufficiency of the evidence.  See Manon v. Tejas Toyota, Inc., 162 S.W.3d 743, 752 (Tex. App.CHouston [14th Dist.] 2005, no pet.) (citing Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981)).  We will sustain a legal sufficiency or Ano‑evidence@ challenge if the record shows one of the following: (1) a complete absence of a vital fact, (2) rules of law or evidence bar the court 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 scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact.  City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005).  We consider the evidence in the light most favorable to the verdict and indulge every reasonable inference that supports it.  Id. at 821B22.  The evidence is legally sufficient if it would enable reasonable and fair‑minded people to reach the verdict under review.  Id. at 827. We credit favorable evidence if reasonable jurors could consider it, and disregard contrary evidence unless reasonable jurors could not disregard it.  See id.  The trier of fact is the sole judge of the witnesses= credibility and the weight to be given their testimony.  See id. at 819.  We cannot substitute our judgment for that of the jury, so long as the evidence falls within the zone of reasonable disagreement.  See id. at 822.  But, Aif the evidence allows of only one inference, neither jurors nor the reviewing court may disregard it.@  Id.

When considering a factual sufficiency challenge to a jury=s verdict, we must review and weigh all of the evidence, not just the evidence that supports the verdict.  See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406B07 (Tex. 1998); Nip v. Checkpoint Sys., Inc., 154 S.W.3d 767, 768B69 (Tex. App.CHouston [14th Dist.] 2004, no pet.).  We may set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust.  See Maritime Overseas Corp., 971 S.W.2d at 407; Nip, 154 S.W.3d at 769.  

B.      Causation

To establish causation in a personal injury case, a plaintiff must prove the defendant=s conduct caused an event and that this event caused the plaintiff to suffer compensable injuries.  See Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984). The causal link between the event sued upon and the plaintiff=s injuries must be shown by competent evidence.  Id. at 732.  A jury may decide the required causal nexus between the event sued upon and the plaintiff=s injuries when (1) general experience and common sense will enable a lay person fairly to determine the causal nexus, (2) expert testimony establishes a traceable chain of causation from injuries back to the event, or (3) expert testimony shows a probable cause nexus.  Weidner v. Sanchez, 14 S.W.3d 353, 370 (Tex. App.CHouston [14th Dist.] 2000, no pet.); Blankenship v. Mirick, 984 S.W.2d 771, 775 (Tex. AppCWaco 1999, pet. denied). 

C.      Kemp=s Legal Sufficiency Challenge

As noted above, Kemp stipulated to liability at the beginning of trial. Therefore, Havens was only required to prove a causal nexus between the collision and Havens= injuries. No expert medical testimony was offered by either party.  Kemp contends that, because Havens had significant preexisting conditions, Havens= opinion testimonyCthat Ato her knowledge@ she did not have the herniation reflected on the post-collision MRI report before the accidentCwas insufficient to establish a causal nexus between the collision and her allegedly herniated disks.  Because expert testimony is required to establish that causal nexus, Kemp argues the jury=s award of damages is legally and factually insufficient to the extent it includes damages incurred as a result of allegedly herniated disks.  Kemp does not complain that insufficient evidence supports damages or medical expenses connected with her whiplash.

At the outset we note that Kemp has failed to preserve her factual sufficiency complaint because she did not raise it in her motion for new trial.  See Tex. R. Civ. P. 324(b)(2) (providing that a point in a motion for new trial is a prerequisite to a complaint of factual insufficiency of the evidence to support a jury finding).  We therefore overrule Kemp=s first issue to the extent it raises a factual sufficiency challenge.

Turning to Kemp=s legal sufficiency challenge, we agree with Kemp that expert testimony is required to establish that an automobile accident caused a person to suffer herniated disks when that person suffers from other preexisting conditions and injuries.^[4]  However, Kemp did not object to the jury charge on the basis that the damages questions could invite the jury to include damages for herniation, nor did she seek a separate jury question or instruction on causation or damages relating to any newly herniated disks Havens may have as a result of the accident. For each type of damages, the jury was instructed to answer only the following question:  AWhat sum of money, if paid now in cash, would fairly and reasonably compensate REBECCA D. HAVENS for her injuries, if any, that resulted from the occurrence in question?@  The damage questions did not prompt the jury to make separate findings on whiplash and disk herniation.  Without separate findings on these elements, a reviewing court cannot assess if the award contains an award for disk herniation.  Kemp agrees that no one can discern if the jury awarded any damages for a disk herniation, and claims that this uncertainty is precisely why this case must be reversed.  Kemp would be correctCif she had objected to the broad form submission and asked the trial court to submit damages for whiplash and herniation separately. However, on appeal, Kemp is limited to challenging the legal sufficiency of the evidence supporting the damage awards as a whole, because she did not object to the broad form submission.   See Thomas v. Oldham, 895 S.W.2d 352, 356B60 (Tex. 1995) (holding that appellant who failed to object to broad-form damages question could not challenge legal sufficiency of individual elements of damages awarded and was limited to challenging legal sufficiency of whole verdict); see also Harris County v. Smith, 96 S.W.3d 230, 232B34 (Tex. 2002) (discussing Thomas with approval and holding that specific and timely objection to inclusion of unsupported elements in broad-form question preserved error). 

However, Kemp has not challenged the jury=s damage awards as a whole; she claims only that the award must be reversed because it may contain some award for newly herniated disks. Therefore, on the facts of this case, Oldham and Smith instruct that Kemp has failed to preserve her specific legal sufficiency complaint for appellate review because she did not ask the trial court to separate the element unsupported by evidence from the element supported by some evidence.

Even if we were to consider the legal sufficiency of the jury=s damage awards as a whole, however, the evidence is more than sufficient to support the jury=s verdict.^[5]  No one disputes that Havens suffered from whiplash as a result of the accident. Havens testified that she did not suffer from neck problems before the collision but did so afterward, and that her back problems worsened.  She described her physical symptoms and pain that occurred after the collision, and testified at length to the emergency room visits, various physicians= office visits, and medical services that were required as a result of the collision and her resulting neck pain.  She also testified to the amount of the medical bills linked to these events.^[6]  This evidence is legally sufficient to support the jury=s award as a whole.

We therefore overrule Kemp=s first issue.

2.       Cumulative Error

In her second issue, Kemp contends that the trial court erred by permitting Havens to testify that she might need future surgery, and that this error, coupled with the admission of Havens= testimony that she suffered herniated disks as a result of the collision, constituted cumulative error.  Multiple errors, even if considered harmless taken separately, may result in reversal and remand for a new trial if the cumulative effect of such errors is harmful.  Weidner, 14 S.W.3d at 377.  Before we may reverse a judgment and order a new trial based on cumulative error, we must determine that the error committed by the trial court was reasonably calculated to cause and probably did cause the rendition of an improper judgment.  See id. at 377B78; Tex. R. App. P. 44.1(a).

In support of her issue , Kemp complains that (1) during opening statement, Havens= counsel was permitted, over objection, to argue that Havens might need surgery in the future, and (2) Havens testified on direct examination that she might need surgery in the future.  However, although Kemp argues that, during Havens= counsel=s opening statement, she Aprofusely objected@ to Havens testifying to any need for surgery or the cause of herniated disks, she concedes the objection was made during a bench conference that was not reported.^[7]  Further, Kemp acknowledges that, as requested, the trial court instructed the jury that arguments of counsel were not evidence.  Nevertheless, without citation to any authority or any standard of review, Kemp suggests that the argument was incurable.  We disagree.

Assuming Kemp preserved for appellate review her complaint concerning opposing counsel=s opening statement, we find no error.  Remarks by attorneys during the course of trial do not constitute evidence unless the attorney is actually giving testimony.  Sunrizon Homes, Inc. v. Fuller, 747 S.W.2d 530, 533 (Tex. App.CSan Antonio 1988, writ denied).  Moreover, the trial court=s instruction cured any error.  See Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex.1979) (stating that incurable harm from improper argument is rare).

We likewise find no error in the admission of the plaintiff=s testimony that she might need surgery in the future.  Specifically, Kemp complains about the following exchange:

Q.      [Havens= counsel]:  What are you going to do about your injuries?

A.      [Havens]: . . . I=m going to live with it and hope it gets better; and if it doesn=t, then down the line I=ll proceed with further medical treatment, which will probably result in surgery.

Generally, the decision to admit or exclude particular evidence rests within the sound discretion of the trial court.  City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995).  In support of her complaint, Kemp cites Federal Underwriters Exchange v. Simpson, 137 S.W.2d 132, 136 (Tex. Civ. App.CAustin 1940, no writ).  In Simpson, the court held that it was error to allow the injured plaintiff to testify that he did not believe he would ever be able to use his arm and that it was doubtful that a successful operation could be performed on it. Id.  However, Simpson stands for the general rule that, in a worker=s compensation case, lay opinion that the worker=s injury is total and permanent is inadmissible.  Because this is not a worker=s compensation case in which a determination of total and permanent injury is at issue, we find Simpson distinguishable from the present facts. In this circumstance, we cannot say that the trial court abused its discretion in admitting the testimony.

Even if the admission of the testimony was error, Kemp fails to demonstrate how the trial court=s alleged error, combined with any other alleged errors, was reasonably calculated to cause and probably did cause the rendition of an improper judgment.  Instead, Kemp merely argues that the alleged errors were Aso prejudicial that a new trial should be granted.@  Again, we disagree.  The jury awarded no damages for future pain and suffering or future physical impairment, and Kemp was successful in having a jury question on future medical expenses removed from the charge.  Moreover, we have already overruled Kemp=s legal and factual sufficiency challenges. Therefore, we hold Kemp has failed to demonstrate that the trial court committed cumulative error entitling her to a new trial.

We overrule Kemp=s second issue.

Conclusion

We overrule Kemp=s two issues and affirm the trial court=s judgment.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed April 27, 2006.

Panel consists of Justices Hudson, Fowler, and Seymore.

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^[1]  Additionally, Dr. Awitan referred Havens to Dr. Murphy, who also diagnosed her with whiplash.  Dr. Murphy prescribed medications and physical therapy for Havens, but after four physical therapy treatments, Havens testified that she awoke unable to move her neck and in intense pain.  Although she went to physical therapy, they sent her to the emergency room.  She then discontinued the physical therapy and undertook exercises at home, used heating pads or wraps, took muscle relaxers, and used a particular pillow to keep her neck in a certain position.  She then got a referral for a second opinion, and  went to another healthcare provider.

^[2]  Kemp argues that, at best, the post-surgery MRI is ambiguous concerning the cause of any new herniation.  She points to the following text of the findings from the MRI, the relevant parts of which she  highlighted as follows:

4.  At the L4-5 level, laminotomy defects are present.  There is a 4 mm posterocentral subligamentous herniation and/or post diskectomy defect which abuts the sac. The foramina are patent.

5.  At the L5-S1 level, laminotomy defects are present.  There is a 5 mm broad-based posterior subligamentous herniation with left posterolateral accentuation which abuts the sac and S1 roots.  There is mild right and moderate to marked left foraminal narrowing where the disk effaces the emanating left L5 nerve root sleeve/dorsal root ganglion.  An enhanced study would be helpful to differentiate post diskectomy defects from recurrent herniations if indicated.

^[3]  Kemp=s counsel also cross-examined Havens on the MRI findings and specific statements contained in them.

^[4]  Kemp also correctly points out that opinions expressed in medical records must rest in reasonable medical probability. 

^[5]  Although Kemp complains generally of the jury=s awards for past medical expenses, pain and suffering, and physical impairment, Kemp does not separately challenge the jury=s awards for past physical pain and suffering or past physical impairment. Instead, she primarily focuses on the award of medical expenses.  Consequently, we will respond to Kemp=s arguments as made.

^[6]  At trial, Kemp did not challenge the medical bills offered into evidence on the basis that some of them might include charges for services relating to Havens= preexisting conditions.  Kemp also did not seek to require Havens to segregate her medical bills or otherwise Aexpressly reserve[] whether [Kemp=s] acts or omissions proximately caused those treatments and expenses.@  See Texarkana Mem=l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 838 (Tex. 1997). In any event, it does not appear that the jury awarded Havens damages for post-collision herniation because it awarded no damages for future pain and suffering or future physical impairment.

^[7]  In passing, Kemp also includes a reference to Havens= counsel=s closing remarks, but these were not reported.