Michael Hospadales and Loomis Armored US, LLC v. Roy McCoy

Opinion issued January 12, 2017
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-16-00239-CV
———————————
MICHAEL HOSPADALES AND LOOMIS ARMORED US, LLC, Appellants
V.
ROY MCCOY, Appellee
On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Case No. 2013-57960
OPINION
In this motor-vehicle-accident case, Michael Hospadales and Loomis
Armored US, LLC, appeal a judgment based on a jury verdict, awarding Roy
McCoy damages for past medical expenses, past lost earning capacity, and past
pain and suffering, totaling $292,000. Raising five issues, Hospadales and Loomis
contend (1) the evidence was legally insufficient to show that the accident caused
McCoy’s injuries; (2) the trial court erred by admitting McCoy’s medical records
and bills into evidence; (3) the evidence was legally and factually insufficient to
support the jury’s award of past lost earning capacity; (4) the evidence was legally
and factually insufficient to support the jury’s awards for past medical expenses
and for pain and suffering; and (5) the evidence was factually insufficient to
support the jury’s finding that McCoy was not contributorily negligent.
We conclude that the evidence was legally and factually sufficient to support
the jury’s verdict, and the trial court properly exercised its discretion in making its
evidentiary rulings. Therefore, we affirm the trial court’s judgment.
Background
To earn a living, Roy McCoy transports cars from one location to another
using a 30-foot articulated trailer, pulled by a pickup truck. On January 4, 2013,
McCoy and his wife were traveling north on Interstate 45 on their way to pick up a
car from an auction. McCoy was driving the truck and pulling the trailer in the
second lane from the median wall. Also on the freeway that day was Michael
Hospadales, who was driving an armored truck for his employer, Loomis Armored
US, LLC.
The armored truck was equipped with a monitoring system, including a
video camera that filmed the view of the road in front of the armored truck and
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some of its periphery. The monitoring system also recorded data related to
Hospadales’s operation of the vehicle. This data included the vehicle’s speed, its
longitudinal acceleration and deceleration, and its side-to-side movement. The
monitoring system also recorded when Hospadales applied his brakes and when an
impact with the vehicle occurred.
The video taken that day of the road in front of the armored vehicle shows
that Hospadales was driving behind McCoy in the same lane. Hospadales changed
lanes, moving to the left, innermost lane on the freeway. After he changed lanes,
Hospadales’s speed increased to 68 miles per hour, eight miles an hour over the
speed limit. Hospadales was traveling faster than McCoy, and Hospadales
proceeded to pass McCoy on McCoy’s left. As Hospadales approached McCoy’s
vehicle, the video shows that the left side tires of McCoy’s truck and trailer were
on the white line between the lanes, but neither McCoy’s truck nor the trailer
appears to cross the line or leave McCoy’s lane. At that point, Hospadales moved
toward the shoulder of the road, which was on Hospadales’s left. Hospadales
continued to move past McCoy’s trailer. The video shows the tires of McCoy’s
truck move to the right, off the white line, back into McCoy’s lane. Hospadales
navigated his vehicle to the right from the shoulder. The video then shows that the
brake lights of the vehicle directly in front of Hospadales were activated. The data
from the monitoring system on the armored truck indicates that Hospadales applied
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his brakes as he moved the armored truck to the right. At that point, Hospadales’s
vehicle entered McCoy’s lane and hit the back, lower right side of McCoy’s pickup
truck. The impact caused McCoy’s truck and trailer to jackknife and skid 500 feet.
McCoy pushed hard on the brakes, and his truck and trailer came to a stop on the
other side of the freeway.
McCoy was taken by ambulance to the emergency room where he
complained of back pain, rating his pain an 8 out of 10. The medical records from
the visit show that McCoy was diagnosed by the emergency room doctor with “[a]
neck sprain, back & neck pain.” The emergency room discharged McCoy to his
home with medication and instructions to seek follow-up care.
Five days later, on January 9, 2013, McCoy sought care at Ultimate Choice
Medical & Rehab Clinic where he was seen by Dr. G. Lagesse. McCoy’s medical
records from the clinic indicate that McCoy reported pain in his neck, lower back,
and right knee. McCoy rated the intensity of his pain at 7 out of 10. He indicated
that the pain was aggravated by walking, prolonged sitting, bending, and lifting.
Under the heading “history of present illness,” Dr. Lagesse wrote that McCoy had
been in a motor vehicle accident and had sustained a “new” back and right knee
injury. He noted that McCoy had pain in his back and neck, and McCoy reported
pain and swelling of his right knee. Dr. Lagesse ordered an MRI of McCoy’s
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lower back and an x-ray of his knee. Dr. Lagesse also referred McCoy to physical
therapy three times a week.
On February 26, 2013, McCoy was seen by Dr. B. Perez, who is board
certified in pain management. McCoy reported to Dr. Perez that he had been in a
motor vehicle accident the previous month. Under McCoy’s patient history, Dr.
Perez wrote that McCoy “has pain in the neck, lower back radiating to the right leg
and right knee that swells up with exertion.” The doctor noted that McCoy’s
“[p]ain is rated as 8/10 and is associated with numbness, tingling and weakness.”
McCoy reported that the “[p]ain is constant, throbbing with spasm, distressing and
excruciating. It gets worse with lying down, walking, physical activity, working,
bending, lifting, sitting, standing[.]” Dr. Perez discussed with McCoy the option of
treating his back pain with epidural steroid injections but advised McCoy to
continue with physical therapy.
McCoy was seen by Dr. J. White of Disability and Pain Consultants of
Texas on April 23, 2013. Dr. White indicated in McCoy’s medical records that
McCoy had a “lumbar sprain strain injury” and a “cervical sprain strain injury
(whiplash)” as a result of the motor vehicle accident that had occurred three
months earlier. McCoy had indicated that pain in his lower back and knee was
worsening and that he continued to have pain in his neck.
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Dr. White indicated that the MRI showed McCoy had herniated discs in his
neck. Among the MRI findings with regard to McCoy’s lower back was an
annular tear in the disc at the L5-S1 vertebrae. Dr. White also indicated that an
MRI of McCoy’s right knee showed that he had a torn meniscus.
Dr. White noted that McCoy had been receiving physical therapy for three
months. The doctor recommended that McCoy continue physical therapy and
indicated that McCoy was a candidate for cervical epidural steroid injections. Dr.
White also indicated that McCoy may be referred “for orthopedic surgical
assessment” regarding his torn meniscus.
McCoy attended physical therapy from January 11, 2013 to June 7, 2013;
nonetheless, the pain in his neck, lower back, and knee continued. Dr. Perez gave
McCoy an epidural steroid injection in his lower back on June 17, 2013 and
another injection on November 3, 2013.
With regard to his knee, McCoy consulted Dr. J. Rodriguez, an orthopedic
surgeon, on June 17, 2013. Dr. Rodriguez performed surgery to address the torn
meniscus in McCoy’s right knee on September 19, 2013. After his surgery,
McCoy received physical therapy for his knee with his last treatment on October
18, 2013.
McCoy filed suit against Hospadales and Hospadales’s employer, Loomis,
asserting that Hospadales had negligently caused the auto accident. McCoy
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claimed that the accident had caused injury to his back, neck, and knee. He sought
damages for medical expenses, lost earning capacity, and pain and suffering.
Trial began in December 2015. Before picking the jury, the trial court
conducted a hearing at which the parties pre-admitted exhibits. McCoy offered
Exhibits 8 through 21, which were the medical and billing records for the treatment
he had received from the various medical providers following the accident.
Hospadales and Loomis (collectively, “Loomis”) objected to the admittance of the
billing and medical records. Loomis asserted that the records were not relevant
because “there’s no evidence” that McCoy’s “injuries were caused by the
accident.” The trial court agreed with Loomis that McCoy was required to prove
that the accident “gave rise to [his] injury that gave rise to the [medical]
treatment.” The trial court, however, admitted McCoy’s medical and billing
records, indicating that Loomis had preserved its relevancy objection should
McCoy not meet his burden to prove causation. The trial court also pointed out
that, should McCoy fail to prove causation, Loomis could move for directed
verdict after McCoy rested.
During trial, Loomis defended against McCoy’s claims by asserting that
McCoy, not Hospadales, had caused the accident. Loomis theorized that McCoy’s
trailer had crossed the white line and bumped the side of the armored truck as it
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passed. Loomis claimed that this caused its truck to then crash into McCoy’s
truck.
Loomis also asserted that the accident involved in this case had not caused
McCoy’s physical injuries. It claimed that McCoy’s back and neck injuries were
preexisting and had been caused by a 2010 car accident. Loomis pointed out that
MRIs taken of McCoy’s back and neck, following the 2010 accident, showed
essentially the same injuries as those indicated in the MRIs taken following this
accident. Loomis also asserted that the evidence was not sufficient to show that
McCoy’s knee injury had been caused by the accident.
To prove that Loomis had caused the accident, McCoy offered the expert
opinion of Richard Tonda, a mechanical engineer experienced in accident
reconstruction and vehicle design. Tonda testified that he had analyzed the
accident information in this case, including the data collected at the time of the
accident by the monitoring system onboard Loomis’s truck. Tonda testified that,
based on a reasonable degree of engineering certainty, the initial impact occurred
when the Loomis truck came into McCoy’s lane and struck McCoy’s truck.
Tonda acknowledged that, as Hospadales approached McCoy’s vehicle,
which was in the lane to Hospadales’s right, McCoy’s tires touched the white line;
however McCoy’s vehicle is never seen leaving its lane. The video and the data
show that Hospadales steered his truck to the left toward the shoulder. However,
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Tonda pointed out that, as Hospadales continued to pass, McCoy’s vehicle is seen
moving to the right, off the white line, back into McCoy’s lane. The data and the
video show that Hospadales then steered his truck back to the right. Tonda noted
that the driver in front of Hospadales applied his brakes. Tonda testified that the
data showed that Hospadales then engaged in an “extreme brake maneuver.” At
that point, Hospadales’s vehicle then entered McCoy’s lane and struck McCoy’s
truck. Tonda testified, “[W]hen you make an extreme brake maneuver during a
turn, it generally tends to pull you into the direction of the turn.” The video taken
from the Loomis truck and the data collected by the onboard monitoring system
was presented to the jury during Tonda’s testimony. Tonda explained, step by
step, how the data, which appeared in a graph format below the video, supported
his opinion. Tonda stated that the data did not support Loomis’s theory that the
initial impact had been McCoy’s trailer striking Loomis’s truck.
Tonda disagreed with Loomis’s accident reconstruction expert, Dale King,
who opined that McCoy had caused the accident. King testified at trial by video
deposition. King theorized that McCoy’s trailer had crossed the white line
between the lanes and hit Loomis’s truck. Although this impact could not be seen
on the video captured by the onboard monitoring system, King pointed to a sound
on the video that could be heard before Loomis’s truck is seen entering McCoy’s
lane and striking his vehicle. King opined that this “metal on metal” sound was the
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trailer hitting the armored truck. When asked about the sound, Tonda testified that,
in his opinion, the sound to which King referred emanated from Hospadales’s
application of his brakes during the “extreme brake maneuver” Hospadales
engaged in before hitting McCoy.
McCoy also testified at trial. He was adamant that his trailer never left its
lane, and did not strike Loomis’s truck. McCoy testified that after the armored
vehicle hit the back of his truck, his vehicle jackknifed and skidded down the
freeway 500 feet. McCoy testified that he pushed on his brakes “[v]ery hard. Very
hard. Very hard.”
McCoy acknowledged that he had injured his neck and his back in a 2010
auto accident, but he testified that he had fully recovered from those injuries. On
cross-examination, McCoy stated that he had recovered from those injuries about
two years before the January 2013 accident involved here.
McCoy acknowledged that he had filed an earlier lawsuit based on the 2010
accident. Loomis sought to impeach McCoy with deposition testimony he had
given in that suit. The deposition had been taken in 2012, five months before the
January 2013 accident involved here. In the deposition, McCoy had testified that
he still had back pain. At trial, McCoy stated that he did not remember giving that
testimony and indicated that he did not believe he had back pain at the time of the
deposition. On re-direct examination, McCoy clarified: “At the time of the
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[January 2013] accident, I was fine. Whether it was two months, three months, six
months, the question was I was fine.” McCoy also testified that his knee was not
injured before the 2013 accident.
To prove that the 2013 accident had caused the personal injuries alleged in
this suit, McCoy offered the testimony of Dr. Rodriguez, the orthopedic surgeon
who performed McCoy’s knee surgery. Pretrial, Loomis had filed a motion to
strike McCoy’s experts. In the motion, Loomis had asserted that McCoy’s
“designated experts are not qualified to express an opinion regarding the causal
link between the accident and [McCoy’s] injuries and damages, and such experts
have no reliable basis on which to base any opinion regarding the causal link
between [McCoy’s] medical conditions and the accident.”
During trial, immediately before Dr. Rodriguez testified, the trial court
conducted a hearing on Loomis’s motion to strike McCoy’s experts, specifically,
its request to strike Dr. Rodriguez. Regarding the motion, the following exchange
occurred:
THE COURT: You do intend to call Dr. Rodriguez to give his
testimony that the incident—the accident made the basis of this suit
caused the injuries made the basis of this suit; is that right?
[McCoy’s counsel]: Yes.
THE COURT: Okay. And so all you’ve said generically is that they
[sic] don’t have the qualifications to do so. What do I do with that?
How do they [sic] not have the qualification to do so?
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[Loomis’s counsel]: The question of causation is a separate analysis
from diagnosis in treatment. Simply being qualified as a medical
doctor doesn’t necessarily qualify one to testify about a causal link
unless they have done the appropriate study with respect what causes
what.
THE COURT: So what would the study that would have been done in
this particular case? I mean is it all injuries made the basis of this?
You have a very general motion.
[Loomis’s counsel]: I know.
THE COURT: . . . I am asking you to get to the meat of it.
[Loomis’s counsel]: All right. The meat is there’s no reliable
scientific basis to say that this type of an accident causes the injuries
that they are complaining of, specifically, . . . disc problems, which—
and it’s because of the disc problems that they did the injections.
THE COURT: Okay. So and is that the body of what we should
focus on for this hearing? That is what I want to know.
[Loomis’s counsel]: I think so.
THE COURT: Okay. So what qualifications—well, first of all, will
your doctor take the stand and be asked and express the opinion about
within a reasonable degree of probability whether the—the accident
the—the vehicle accident caused this disc issue?
[McCoy’s counsel]: Yes.
THE COURT: Okay. So what will he say the basis of it is? I need a
little fill in here.
[McCoy’s counsel]: Sure. Dr. Rodriguez, Your Honor, is a board
certified orthopedic surgeon. He’s a whole body orthopedic surgeon.
Dr. Rodriguez has reviewed every record in this case. He’s reviewed
all of Mr. McCoy’s prior medical records from 2010 and from 2000—
going all the way back to 2002. He has formed an expert opinion
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based on his review of all of those records, based upon his treatment
of Mr. McCoy as related to his knee injury that didn’t exist in any—
THE COURT: We are talking about the disc injury?
[McCoy’s counsel]: Right.
THE COURT: That’s what I’ve understood.
[Loomis’s counsel]: But I do need to include knee. Can I just suggest
something that may—I know I filed a motion. I don’t want to
completely—I do not want to waive the challenge.
(Discussion off the record).
(Jury not present)
THE COURT: We’re back on the record. . . . I have a suggestion and
so I’m going announce it and you can tell me. Look what I believe
I’m going to do right now is deny that motion. You are going to be
able to fully cross-examine all these issues. You will be able to reurge
all or part of that, once it’s there. I am going to be able to tell the jury,
instruct the jury to disregard if we need but you’ve filed the motion.
You’ve filed a response. You opposed it obviously, right?
[McCoy’s counsel]: Yes, Judge.
THE COURT: The motion is denied.
[Loomis’s counsel]: Well, I appreciate that, Judge. I really don’t
want to waive the motion.
THE COURT: I don’t want you to waive it all. [Y]ou’ve not waived
it.
[Loomis’s counsel]: Okay. That’s my concern is that I—if he takes
the stand, I don’t want to waive my right to cross examine him on—
THE COURT: You may cross-examine fully on the same issues, but I
am denying it at this time. . . .
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As will be discussed more fully infra, Dr. Rodriguez testified that, based on
a reasonable medical probability, the January 2013 accident caused injury to
McCoy’s lower back, neck, and knee. He also testified that the medical expenses
for the treatment McCoy received post-accident were reasonable and necessary.
The jury was asked, “Did the negligence, if any, of those named below
proximately cause the occurrence in question?” The jury answered “Yes” for
Hospadales and “No” for McCoy. The jury awarded McCoy $92,000 for past
medical care expenses, $40,000 for past loss of earning capacity, and $160,000 for
past pain and suffering. The trial court rendered judgment on the jury’s verdict
awarding McCoy $292,000 in damages. This appeal followed in which Loomis
identifies five issues.
Sufficiency of the Evidence
In four of its issues, Loomis challenges the legal and factual sufficiency of
the evidence to support the jury’s findings.
A. Standards of Review
Evidence is legally sufficient if it “would enable reasonable and fair-minded
people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d
802, 827 (Tex. 2005). We will conclude that the evidence is legally insufficient to
support the finding only if (a) there is a complete absence of evidence of a vital
fact, (b) the court is barred by rules of law or evidence from giving weight to the
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only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital
fact is no more than a mere scintilla, or (d) the evidence conclusively establishes
the opposite of the vital fact. Id. at 810. When reviewing the legal sufficiency of
the evidence, we consider the evidence in the light most favorable to the verdict
and indulge every reasonable inference to support it. Id. at 822. We credit
favorable evidence if a reasonable juror could and disregard contrary evidence if a
reasonable juror could not. Id. at 827.
In a factual sufficiency review, we consider and weigh all of the evidence.
See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Arias v. Brookstone, L.P., 265
S.W.3d 459, 468 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). When the
appellant challenges an adverse finding on an issue on which it did not have the
burden of proof at trial, we set aside the verdict only if the evidence supporting the
finding is so weak as to make the verdict clearly wrong and manifestly unjust. See
Cain, 709 S.W.2d at 176; Reliant Energy Servs., Inc. v. Cotton Valley
Compression, L.L.C., 336 S.W.3d 764, 782 (Tex. App.—Houston [1st Dist.] 2011,
no pet.). When it challenges an adverse finding on an issue on which it had the
burden of proof at trial, the appellant must demonstrate on appeal that the adverse
finding is against the great weight and preponderance of the evidence. Dow Chem.
Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Grider v. Mike O’Brien, P.C.,
260 S.W.3d 49, 57 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).
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B. Causation
In its first issue, Loomis asserts that the evidence was legally insufficient to
support the award of damages because there was no evidence that the 2013
accident caused McCoy’s personal injuries. Loomis contends that Dr. Rodriguez’s
expert testimony cannot support the causation finding. Loomis asserts that Dr.
Rodriguez was not qualified to give an expert opinion testimony on causation, and
his causation testimony was unreliable.
The party offering the expert’s testimony bears the burden of establishing
that the witness is qualified as an expert. Broders v. Heise, 924 S.W.2d 148, 151
(Tex. 1996). The offering party must show that the expert has knowledge, skill,
experience, training, or education regarding the specific issue before the court that
would qualify the expert to give an opinion on the particular subject. Id. at 153.
Here, Loomis asserts that Dr. Rodriguez was not qualified to render an
opinion that the accident caused injury to McCoy’s lower back, neck, and knee.
Typically, a challenge that an expert was not qualified to render an opinion would
not be raised as part of a sufficiency-of-the-evidence review; rather, a challenge to
the qualifications of an expert would be raised in the context of determining
whether the expert’s testimony was admissible. See E.I. du Pont de Nemours and
Co., Inc. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995) (holding that, in
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accordance with Rule of Evidence 702, expert testimony is admissible if (1) expert
is qualified and (2) testimony is relevant and based on a reliable foundation).
Here, the trial court denied Loomis’s motion to strike Dr. Rodriguez’s
testimony based upon the argument of counsel at the hearing preceding Dr.
Rodriguez’s testimony. The trial court did not hear evidence at that time regarding
Dr. Rodriguez’s qualifications or the reliability of his testimony. However, the
trial court indicated that such evidence would be heard and considered during Dr.
Rodriguez’s testimony.1 In this regard, the trial court made clear that McCoy still
needed to demonstrate that Dr. Rodriguez was qualified and that his testimony was
based on a reliable foundation. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572,
578 (Tex. 2006) (“[T]he party sponsoring the expert bears the burden of showing
the expert’s testimony is admissible[.]”). Moreover, McCoy’s objection to Dr.
Rodriguez’s qualifications in this case were intertwined with his objection that Dr.
Rodriguez’s opinion was unreliable and conclusory, making the complaint one
addressing the substance of the testimony. Cf. Duncan-Hubert v. Mitchell, 310
S.W.3d 92, 105 n.6 (Tex. App.—Dallas 2010, pet. denied) (“The case law
demonstrates an objection is one addressing the substance of the testimony when
1
The trial court told Loomis that it could reurge its motion to strike Dr. Rodriguez’s
testimony after the doctor had testified. The trial court assured Loomis that its
objection to Dr. Rodriguez’s testimony had not been waived. Loomis did not
reurge the objection after Dr. Rodriguez testified. Nonetheless, under the
circumstances of this case, we address Loomis’s complaints as part of our
sufficiency-of-the evidence review.
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the objection to the insufficiency of the expert’s qualifications is combined with an
objection that the expert’s opinion is conclusory.”) (citing Yancy v. United Surgical
Partners Int’l, Inc., 170 S.W.3d 185, 191 (Tex. App.—Dallas 2005), aff’d, 236
S.W.3d 778 (Tex. 2007) (holding objections that expert witnesses “were not
qualified to testify regarding [patient’s] condition and their statements were
nothing more than unsupported conclusions” went to substance of affidavits and
could be raised on appeal)). Given the unique posture of this case, we will address,
as part of the sufficiency review, whether McCoy offered adequate evidence to
show Dr. Rodriguez was qualified to render his expert opinion.
At trial, Dr. Rodriguez testified that he is a board certified orthopedic
surgeon with a subspecialty in the spine and has been practicing in that field for 27
years. He stated that, although his subspecialty is the spine, he also practices
general orthopedics. Dr. Rodriguez testified that, after examining McCoy and
reviewing the MRI of McCoy’s knee, he performed arthroscopic surgery on
McCoy’s knee to repair his torn meniscus.
When asked whether he had “any kind of special knowledge or training or
skills in order to determine causation of an injury,” Dr. Rodriguez responded that
“as part of the orthopedic specialty you need to understand how the different
injuries take place.” Dr. Rodriguez indicated that an orthopedic specialist uses his
knowledge of physics to determine whether the injury suffered could have been
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caused by the event reported. Dr. Rodriguez stated that the event being reported
by a patient as having caused the injury must correlate with the physical finding of
the injuries sustained by the patient. In other words, Dr. Rodriguez’s testimony
indicated that, as an orthopedic surgeon, he must understand how an injury was
caused in order to treat it. Thus, Dr. Rodriguez’s testimony showed that he had
knowledge, skill, experience, training, and education regarding causation of back,
neck, and knee injuries, qualifying him to give an opinion on the causation of
McCoy’s injuries. See Abilene Indep. Sch. Dist. v. Marks, 261 S.W.3d 262, 271
(Tex. App.—Eastland 2008, no pet.) (holding, in worker’s compensation case, that
orthopedic surgeon was qualified to testify that teacher’s knee injury was caused
by student kicking teacher in knee); LMC Complete Automotive, Inc. v. Burke, 229
S.W.3d 469, 479 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (indicating,
in case in which orthopedic surgeon testified that plaintiff’s back injuries were
caused by on-the-job accident, that injuries were within realm of orthopedic
surgeon’s expertise); cf. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d
713, 719 (Tex. 1998) (holding, in products liability case involving automobile, that
district court did not abuse its discretion by excluding mechanical engineer’s
testimony because expert did not have specific experience regarding subject matter
of lawsuit); Broders, 924 S.W.2d at 149 (holding that district court did not abuse
its discretion by excluding expert’s opinion on causation, although expert plainly
19
had greater knowledge of medicine generally than lay person, he did not have
specialized knowledge on precise subject of causation).
Loomis also asserts that Dr. Rodriguez’s testimony regarding causation did
not have a reliable basis. To establish causation in a personal injury case, a
plaintiff must prove the defendant’s conduct caused an event, and that event caused
the plaintiff to suffer compensable damages. Burroughs Wellcome Co. v. Crye,
907 S.W.2d 497, 499 (Tex. 1995). The causal link between the event sued upon
and the plaintiff’s injury must be shown by competent evidence. Guevara v.
Ferrer, 247 S.W.3d 662, 666 (Tex. 2007). When a plaintiff claims damages for a
medical condition, the cause of which is not within the common knowledge and
experience of jurors, expert testimony is necessary to show the defendant’s
conduct caused that condition. JLG Trucking, LLC v. Garza, 466 S.W.3d 157, 162
(Tex. 2015).
The causal connection between a defendant’s negligence and a plaintiff’s
injuries cannot be based on mere conjecture, speculation, or possibility. See Park
Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995). To constitute
evidence of causation, a medical expert’s opinion must rest in reasonable medical
probability. Crye, 907 S.W.2d at 500; LMC Complete Auto., Inc. v. Burke, 229
S.W.3d 469, 478 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). However, a
plaintiff, “is not required to establish causation in terms of medical certainty nor is
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he . . . required to exclude every other reasonable hypothesis.” Bradley v. Rogers,
879 S.W.2d 947, 954 (Tex. App.—Houston [14th Dist.] 1994, writ denied).
“Whether expert testimony on causal connection rests upon reasonable medical
probability must be determined by the substance and context of the testimony
rather than semantics or use of a particular term or phrase.” Thompson v. Stolar,
458 S.W.3d 46, 57 (Tex. App.—El Paso 2014, no pet.) (citing Crye, 907 S.W.2d at
500).
“Under a legal-sufficiency analysis, an expert’s opinion may constitute no
more than a mere scintilla of evidence if the opinion is not reliable under the same
standards that govern admissibility, is speculative or conclusory on its face, or
assumes facts contrary to the undisputed facts.” Gunn v. McCoy, 489 S.W.3d 75,
84–85 (Tex. App.—Houston [14th Dist.] 2016, pet. filed) (citing, inter alia,
Coastal Transp. Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233
(Tex. 2004) (considering legal-sufficiency challenge to expert opinion because
opinion was alleged to be “conclusory or speculative and therefore non-probative
on its face”); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 712 (Tex.
1997) (considering legal-sufficiency challenge regarding expert opinion under
Daubert and Robinson reliability standards for rule 702 admissibility)).
In determining whether expert testimony is reliable, we review an expert’s
testimony in its entirety and will not accept the expert’s opinion as some evidence
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“‘simply because he used the magic words.’” Havner, 953 S.W.2d at 711–12
(quoting Schaefer v. Tex. Employers’ Ins. Ass’n, 612 S.W.2d 199, 202–04 (Tex.
1980)). Instead, “[a]n expert must base his opinion on facts or data perceived or
reviewed during or before trial.” LMC Complete Automotive, 229 S.W.3d at 478
(citing TEX. R. EVID. 703; Onwuteaka v. Gill, 908 S.W.2d 276, 283 (Tex. App.—
Houston [1st Dist.] 1995, no writ)). An expert’s opinion regarding causation based
completely upon speculation and surmise amounts to no evidence. Id. (citing
Schaefer, 612 S.W.2d at 204–05. “If the foundational data underlying opinion
testimony are unreliable, an expert will not be permitted to base an opinion on that
data because any opinion drawn from that data is likewise unreliable.” Havner,
953 S.W.2d at 714. Expert testimony is unreliable if “there is simply too great an
analytical gap between the data and the opinion proffered.” Gammill, 972 S.W.2d
at 727. In short, “‘there must be some basis for the opinion offered to show its
reliability.’” Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 801 (Tex.
2006) (quoting Gammill, 972 S.W.2d at 726).
Dr. Rodriguez testified that he had examined McCoy and reviewed the MRI
film of McCoy’s knee, which revealed that McCoy had a lateral meniscus tear of
the right knee. Dr. Rodriguez treated the meniscal tear by performing arthroscopic
surgery on McCoy’s knee. Dr. Rodriguez testified that McCoy had described to
him what had occurred during the accident. Dr. Rodriguez indicated that McCoy
22
had told him that he injured his knee in the course of attempting to stop his vehicle
during the accident. Dr. Rodriguez also indicated that, from McCoy’s description
of the accident, it “makes sense” that McCoy’s injury resulted from the accident.
Dr. Rodriguez testified that, based upon a reasonable degree of medical
probability, the tear to McCoy’s meniscus in his knee was caused by the 2013
accident.
Dr. Rodriguez’s testimony indicated that his causation opinion regarding
McCoy’s knee injury was based on McCoy’s description of the accident, his
physical examination of McCoy, and the MRI of McCoy’s knee. This is
competent evidence demonstrating that Dr. Rodriguez’s causation opinion was
sufficiently reliable to support the jury’s negligence finding. See Gammill, 972
S.W.2d at 727; Robinson, 923 S.W.2d at 557; see also LMC Complete Automotive,
229 S.W.3d at 479 (holding that orthopedic surgeon’s causation opinion was
reliable when based on patient history given by plaintiff, coupled with medical
tests and physical examination).
Dr. Rodriguez also testified that, based on a reasonable degree of medical
probability, the 2013 accident aggravated McCoy’s preexisting injuries in his
lower back and neck. To arrive at this conclusion, Dr. Rodriguez reviewed
McCoy’s past medical records relating to his back and neck injuries. These
included the MRI report related to the back and neck injuries McCoy sustained in
23
the 2010 accident. Dr. Rodriguez acknowledged that the MRI findings from 2013
indicated nearly the same injuries as the 2010 MRI. However, Dr. Rodriguez
explained that “we don’t treat MRIs.” He continued, “The MRIs are done to help
us rule out problems or be assertive of diagnosis, but we always treat the patient.”
Dr. Rodriguez testified that McCoy was “asymptomatic before this accident and
his symptoms are the ones that objectively indicates that he has an aggravation of a
previous injury based on the MRIs.” In other words, Dr. Rodriguez testified that,
while MRIs are used as a diagnostic tool, what the patient reports is also important
in diagnosing and treating a patient.
Here, McCoy reported that, before the 2013 accident, he was no longer
experiencing any back or neck problems from the 2010 accident. However, after
the 2013 accident, McCoy reported experiencing back and neck pain. This
indicated to Dr. Rodriguez that the report of new symptoms following the 2013
accident supports the conclusion that the accident aggravated McCoy’s previous
injuries from 2010.
While temporal proximity alone will not support inference of medical
causation, when combined with other causation evidence, evidence that conditions
exhibited themselves or were diagnosed shortly after an event may be probative in
determining causation. Guevara v. Ferrer, 247 S.W.3d 662, 668 (Tex. 2007). In
addition to McCoy’s report of new symptoms following the 2013 accident, Dr.
24
Rodriguez also testified that comparing the 2010 and 2013 MRIs also indicated
that McCoy had suffered new injuries. Dr. Rodriguez stated that, while both the
2010 and 2013 MRIs indicated that McCoy had a sprained neck, the 2013 MRI
showed that McCoy’s neck sprain shown was worse than the neck sprain indicated
in the 2010 MRI. Dr. Rodriguez also testified that the 2013 MRI showed McCoy
had a posterior annular tear at the L5-S1 level in McCoy’s lower back that was not
present in the 2010 MRI. Dr. Rodriguez testified that, while this type of tear can
be the result of natural degenerative changes, it was his opinion that the tear was
caused by the 2013 accident. As mentioned, Dr. Rodriguez also testified at trial
that, as an orthopedic surgeon, part of his evaluation of an injury is to determine
whether the force reported as causing an injury could have actually caused it. He
stated, “The injuries have to correlate with the mechanics of what caused those
symptoms and injuries.”
Here, in support of his causation opinion, Dr. Rodriguez’s testimony showed
that he relied on McCoy’s report regarding his past and present symptoms and on
McCoy’s past and present medical records, including the past and present MRIs.
Based on this information, Dr. Rodriguez evaluated whether the 2013 accident
caused injury to McCoy’s back and neck. Thus, Dr. Rodriguez’s testimony
demonstrated that his causation opinion had a reliable foundation. See Marks, 261
S.W.3d at 272; LMC Complete Automotive, 229 S.W.3d at 479; see also City of
25
Laredo v. Limon, No. 04–12–00616–CV, 2013 WL 5948129, at *4 (Tex. App.—
San Antonio Nov. 6, 2013, no pet.) (mem. op.) (holding, in auto accident case, that
treating physician’s testimony that accident caused plaintiff’s rotator cuff tear was
not conclusory because doctor had factual basis for his opinion, specifically his
examination of plaintiff and review of her medical records). We therefore hold
that Dr. Rodriguez’s causation testimony was legally sufficient, and sufficiently
reliable to support the jury’s negligence finding.2 See City of Keller, 168 S.W.3d at
827; Gammill, 972 S.W.2d at 727; Robinson, 923 S.W.2d at 557.
2
Dr. Rodriguez also testified that the charges for the various medical services and
treatments provided to McCoy for his injured knee, neck, and back were
reasonable and necessary charges. The trial court also admitted McCoy’s medical
records and bills from the providers. The records from each provider were
accompanied by a Texas Civil Practice and Remedies Code section 18.001
affidavit. Each affidavit stated, “The service provided was necessary and the
amount charged for the service was reasonable at the time and place that the
service was provided.” None of the affidavits were controverted. See TEX. CIV.
PRAC. & REM. CODE ANN. § 18.001(b) (Vernon 2015). Because they were
uncontroverted, the affidavits served to support the reasonableness and necessity
of the charges and services provided to McCoy. See id. (“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.”). We note that Loomis correctly points out that, in
addition to proving reasonableness and necessity of the charges, McCoy was also
required to prove causation; that is, the affidavits did not serve to prove causation.
See Figueroa v. Davis, 318 S.W.3d 53, 61 (Tex. App.—Houston [1st Dist] 2010,
no pet.) (Section 18.001 affidavits “proved only the expenses’ reasonableness and
necessity, not causation”). As discussed, Dr. Rodriguez’s testimony provided
legally sufficient causation evidence.
26
Lastly, Loomis complains that the trial court did not hold an evidentiary
hearing on its motion to strike Dr. Rodriguez’s testimony; rather, it based its ruling
on the arguments of counsel. Contrary to Loomis’s position, we have previously
held that it is within the trial court’s discretion “whether, when, and how to hold a
Robinson hearing.” Piro v. Sarofim, 80 S.W.3d 717, 720 (Tex. App.—Houston
[1st Dist.] 2002, no pet.); see also Gomez v. Am. Honda Motor Co., No. 04-14-
00398-CV, 2015 WL 1875954, at *3 (Tex. App.—San Antonio Apr. 22, 2015, pet.
denied). (mem. op.) (holding that trial court was not required to hold gatekeeper
hearing). Moreover, Loomis has not shown that it was harmed by the trial court’s
decision to deny the motion without holding an evidentiary hearing. See TEX. R.
APP. P. 44.1(a)(1). As discussed infra, McCoy sufficiently demonstrated at trial
that Dr. Rodriguez was qualified to give his causation opinion and his testimony
was reliable. In short, the trial court’s decision not to hold a separate evidentiary
hearing did not result in the rendition of an improper judgment nor did it prevent
Loomis from properly presenting the case on appeal. See id.
We overrule Loomis’s first issue.
C. Admission of Medical Records
As a corollary to its first issue, Loomis asserts in its second issue that the
trial court erred by admitting McCoy’s medical records and bills. We review a
trial court’s decision to admit or exclude evidence for abuse of discretion. In re
27
J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). In the trial court, Loomis objected to the
admission of the records on the basis that they were not relevant evidence. See
TEX. R. EVID. 401, 402. Specifically, Loomis asserted that the records were not
relevant because McCoy could not establish that the 2013 accident caused his
injuries. As discussed, Appellant offered sufficient evidence to establish causation.
Thus, Loomis has failed to show on appeal that the trial court abused its discretion
when it admitted McCoy’s medical records and bills.
We overrule Loomis’s second issue.
D. Damages for Past Medical Expenses and Past Pain in Suffering
In its fourth issue, Loomis asserts that the evidence was factually insufficient
to support the jury’s $92,000 award for past medical expenses and its $160,000
award for past pain and suffering.
1. Past Medical Expenses
Loomis asserts that the evidence was factually insufficient to support the
jury’s award of past medical expenses because “the overwhelming evidence”
showed that McCoy’s neck and back injuries were not caused by the 2013 accident
but were preexisting conditions. In its brief, Loomis contends:
Dr. Rodriguez testified that the disc herniation in McCoy’s neck may
or may not have been caused by the accident. Further, he also
testified that the MRI of McCoy’s neck from 2010 done after a
previous accident had the same findings as the MRI from 2013 after
this accident, and that there were also no new findings in McCoy’s
lower back. Finally, Dr. Rodriguez testified that the “slippage” in
28
McCoy’s disc in his lower back was caused by degenerative changes,
not the accident, and noted that he had had the same injections two
years before that he had again after the accident.
(Record citations omitted.)
On redirect examination, Dr. Rodriguez clarified that, based on his review of
the MRIs, the neck sprain suffered by McCoy caused by the 2013 accident was
worse than the neck sprain he suffered following the 2010 accident. Dr. Rodriguez
also testified that the 2013 MRI showed that McCoy had an annular tear in his
lower back that was not shown in the 2010 MRI. Dr. Rodriguez averred that the
annular tear was “the main indication to have an epidural steroid injection” in his
back. Thus, while he agreed that most of the injuries seen in the 2013 MRI were
the same as those present in the 2010 MRI, Dr. Rodriguez testified that McCoy
also had additional neck and back injuries that were not present following the 2010
accident and were caused by the 2013 accident.
Further, Dr. Rodriguez testified that McCoy’s previous injuries were
aggravated by the 2013 accident. He stated that McCoy had reported that he had
no pain or symptoms before the 2013 accident but developed back and neck pain
after the accident. Dr. Rodriguez testified that doctors treat patients and not MRIs,
indicating that treatment may be based on what a patient is reporting in addition to
what is shown by an MRI.
29
Even though we consider and weigh all the evidence in support of and
contrary to the finding in our factual-sufficiency review, it is the province of the
jury to resolve conflicting evidence, to determine the credibility of the witnesses,
and to weigh their testimony. See Golden Eagle Archery, Inc. v. Jackson, 116
S.W.3d 757, 761 (Tex. 2003). When there is conflicting evidence about the
severity of the injuries or about whether the injuries were caused by the collision,
the jury has the discretion to resolve the conflicts. Lanier v. E. Foundations, Inc.,
401 S.W.3d 445, 455 (Tex. App.—Dallas 2013, no pet.). Applying the appropriate
standard of review, we conclude that the jury’s award of $92,000 for past medical
expenses is not so contrary to the overwhelming weight of the evidence as to be
clearly wrong and unjust. See Cain, 709 S.W.2d at 176. We hold the evidence
was factually sufficient to support the award.
2. Past Pain and Suffering
Loomis also contends that the evidence was factually insufficient to support
the jury’s award of $160,000 for past pain and suffering.
Loomis asserts that the evidence was factually insufficient to support the
pain and suffering damages because McCoy’s back injuries were preexisting at the
time of the 2013 accident. Loomis claims that any pain and suffering experienced
by McCoy in his back after the 2013 accident arose from preexisting injuries.
Loomis points out that McCoy had complained of back pain during his 2012
30
deposition five months before the 2013 accident. Loomis also points to evidence
showing that most of the findings noted in the 2013 MRI were also present in the
2010 MRI. And Loomis calls attention to Dr. Rodriguez’s testimony that the MRIs
showed degenerative changes in McCoy’s back, resulting from the natural aging
process. However, as discussed above, Dr. Rodriguez also testified that the 2013
accident aggravated McCoy’s preexisting injuries and caused new injuries. It was
within the jury’s province to weigh the witnesses’ credibility and to resolve any
conflicts in the evidence. See Mariner Health Care of Nashville, Inc. v. Robins,
321 S.W.3d 193, 210 (Tex. App.—Houston [1st Dist.] 2010, no pet.).
Loomis also asserts that little evidence was offered at trial to support the
award of damages for past pain and suffering. Under Texas law, the jury is given a
great deal of discretion in awarding an amount of damages it deems appropriate for
pain and suffering. Moreno v. Ingram, 454 S.W.3d 186, 195 (Tex. App.—Dallas
2014, no pet.); Gen. Motors Corp. v. Burry, 203 S.W.3d 514, 552 (Tex. App.—
Fort Worth 2006, pet. denied). “The process of awarding damages for amorphous,
discretionary injuries such as pain and suffering is inherently difficult because the
alleged injury is a subjective, unliquidated, nonpecuniary loss.” Tagle v. Galvan,
155 S.W.3d 510, 518 (Tex. App.—San Antonio 2004, no pet.). “There must be
some evidence to justify the amount awarded, but as long as sufficient evidence
exists to support the jury’s verdict, an appellate court may not substitute its
31
judgment for that of the jury.” Moreno, 454 S.W3d at 195. “A verdict will be set
aside on appeal only where the record clearly indicates that the award was based
on passion, prejudice, or improper motive, or is so excessive as to shock the
conscience.” Id.
At trial, McCoy testified that the steroid injections that he received in his
lower back helped with the symptoms he was experiencing. He stated that, before
receiving the injections, he experienced tightness and sharp pains in his back and
had difficulty sleeping. The record shows that McCoy received his first steroid
injection in June 2013, five months after the accident. He received his second
injection in November 2013. With respect to his knee, McCoy testified that,
before he had surgery, his knee would swell when he was active. The evidence
showed that McCoy had surgery to treat the torn meniscus in his knee in
September 2013, eight months after the accident.
Dr. Rodriguez also provided testimony relevant to the pain and suffering
associated with a torn meniscus. He stated, “A meniscal tear feels usually like you
have gravel in your shoes constantly. You’re stepping on gravel or dirt inside the
shoe or you have an eyelash in your eye all day long.” Dr. Rodriguez said that
patients typically complain that a torn meniscus is painful, and he recalled that
McCoy had complained that he was experiencing knee pain. Dr. Rodriguez also
testified that recovering from knee surgery is painful.
32
In addition, McCoy’s medical records contained evidence relevant to his
past pain and suffering. The records from the emergency room indicate that,
immediately following the accident, McCoy rated his pain as 8 out of 10. Five
days later, McCoy was seen by Dr. Lagesse. The records from that visit indicate
that McCoy reported pain in his neck, lower back, and right knee. McCoy rated
the intensity of his pain as 7 out of 10. He indicated that the pain was aggravated
by walking, prolonged sitting, bending, and lifting.
McCoy saw Dr. B. Perez, a pain management specialist. Dr. Perez noted
that McCoy had “pain in the neck, lower back radiating to the right leg and right
knee that swells up with exertion.” The doctor also noted that McCoy’s “[p]ain is
rated as 8/10 and is associated with numbness, tingling and weakness.” McCoy
reported that the “[p]ain is constant, throbbing with spasm, distressing and
excruciating. It gets worse with lying down, walking, physical activity, working,
bending, lifting, sitting, standing[.]” McCoy was also seen by Dr. White. McCoy
told Dr. White that the pain in his lower back and knee was worsening and that he
continued to have pain in his neck.
Considering and weighing all of the evidence, we conclude that the evidence
is not so contrary to the overwhelming weight of the evidence as to be clearly
wrong and unjust to support the award of $160,000 in damages for past pain and
33
suffering. See Cain, 709 S.W.2d at 176. We hold the evidence was factually
sufficient to support the award.
We overrule Loomis’s fourth issue.
E. Past Lost Earning Capacity
In its third issue, Loomis asserts that the evidence was legally and factually
insufficient to support the jury’s award of $40,000 for past lost earning capacity.
Lost earning capacity is an assessment of what the plaintiff’s capacity to
earn a livelihood actually was and the extent to which that capacity was impaired
by the injury. Big Bird Tree Servs. v. Gallegos, 365 S.W.3d 173, 178 (Tex.
App.—Dallas 2012, pet. denied); Scott’s Marina at Lake Grapevine, Ltd. v. Brown,
365 S.W.3d 146, 158–59 (Tex. App.—Amarillo 2012, pet. denied). Loss of past
earning capacity is a plaintiff’s diminished ability to work during the period
between the injury and the date of trial. Bituminous Cas. Corp. v. Cleveland, 223
S.W.3d 485, 491 (Tex. App.—Amarillo 2006, no pet.).
Proof of loss of earning capacity is always uncertain and is left largely to the
discretion of the jury. Big Bird Tree Servs., 365 S.W.3d at 178; Rigdon Marine
Corp. v. Roberts, 270 S.W.3d 220, 232 (Tex. App.—Texarkana 2008, pet. denied).
Nevertheless, to support an award of damages for lost earning capacity, a plaintiff
must present evidence sufficient to permit a jury to reasonably measure earning
capacity in monetary terms. Big Bird Tree Servs., 365 S.W.3d at 178; Tagle v.
34
Galvan, 155 S.W.3d 510, 519 (Tex. App.—San Antonio 2004, no pet.); Durham
Transp. Co., Inc. v. Beettner, 201 S.W.3d 859, 864 (Tex. App.—Waco 2006, pet.
denied). Non-exclusive factors that may be considered in determining lost earning
capacity include evidence of past earnings, the plaintiff’s stamina, efficiency, and
ability to work with pain, and the plaintiff’s work-life expectancy. Big Bird Tree
Servs., 365 S.W.3d at 178; Tagle, 155 S.W.3d at 519.
At trial, McCoy’s attorney asked him if he had lost wages or income “as a
result of the wreck.” McCoy responded that he had lost $3,000. On appeal,
Loomis asserts that McCoy’s testimony that he lost $3,000 in wages does not
support the award of $40,000 in past lost earning capacity. Loomis’s argument,
however, fails to recognize that lost wages and lost earning capacity are not
synonymous. Lost wages refers to the actual loss of income due to an inability to
perform a specific job from the time of injury to the time of trial. Koko Motel, Inc.
v. Mayo, 91 S.W.3d 41, 51 (Tex. App.—Amarillo 2002, pet. denied). In contrast,
lost earning capacity is an assessment of what the plaintiff’s capacity to earn a
livelihood actually was and the extent to which that capacity was impaired by the
injury. Id. “[L]ost earning capacity [is] measured not by what a person actually
earned before an injury, but by what the person’s capacity to earn was even if he
had never worked in that capacity in the past.” Scott’s Marina, 365 S.W.3d at
159.
35
On further questioning at trial, McCoy testified that he could make as much
as $1,000 per day or nothing at all transporting cars, but he stated he averaged a
thousand dollars a week. During closing argument, McCoy’s attorney told the jury
“[i]t took McCoy roughly ten months before he could resume full job duties.”
During trial, McCoy also stated that, following the accident, he was “hurting,” and
his knee would swell if he did too much. The evidence showed that McCoy had
knee surgery in September 2013 and then attended physical therapy for his knee
until October 18, 2013.
McCoy also testified that before the accident his back “was fine.” He
indicated that at the time of the accident it had been “peak season” for his business,
and he had been “moving a lot of cars.” McCoy also testified, “I am a truck driver.
Either your back [is] good or bad. There isn’t no in between with us. You do it
every day. So if you are not right, you are going to feel it every day.”
McCoy’s medical records expressly indicate that he was not working in
February 2013. The evidence also show that McCoy attended physical therapy two
to three times per week from January 2013 until June 2013. McCoy had steroid
injections in his back in June 2013 and then again in November 2013. McCoy’s
medical records and testimony at trial also indicated that McCoy experienced
notable pain during the 10-month period, from January 2013 until November 2013,
he was receiving medical care for his injuries. From this evidence, the jury could
36
have reasonably inferred that McCoy’s capacity to earn was diminished during this
10-month period. McCoy testified that he could earn from nothing to $1,000 per
day transporting cars. He stated that the average was $1,000 per week. Given the
wide range in the amount he could earn, the jury could have taken McCoy’s
average of $1,000 per week multiplied it by 4 (the average number of weeks in a
month) and then by 10 (the number of months McCoy was receiving medical care)
to arrive at $ 40,000, the amount that was awarded for past lost earning capacity.
Crediting favorable evidence if reasonable jurors could, and disregarding
contrary evidence unless reasonable jurors could not, we conclude that the
evidence would enable reasonable and fair-minded people to award $40,000 in past
lost earning capacity damages. See City of Keller, 168 S.W.3d at 827.
Furthermore, considering and weighing all of the evidence, we conclude that the
evidence is not so weak to be clearly wrong and unjust. See Francis, 46 S.W.3d at
242. Therefore, the evidence is legally and factually sufficient to support the
damages award.
We overrule Loomis’s third issue.
F. McCoy’s Contributory Negligence
In its fifth issue, Loomis asserts that the evidence was factually insufficient
to support the jury’s determination that McCoy was not negligent. Loomis asserts,
“[T]he jury’s finding that Michael Hospadales was solely responsible for the
37
accident, and that McCoy was not contributorily negligent, was against the great
weight and preponderance of the evidence.”
Contributory negligence contemplates an injured person’s failure to use
ordinary care regarding his or her own safety. Kroger Co. v. Keng, 23 S.W.3d 347,
351 (Tex. 2000). This affirmative defense requires proof that the plaintiff was
negligent and that the plaintiff's negligence proximately caused his injuries. Id.
The standards and tests for determining contributory negligence ordinarily are the
same as those for determining negligence, and the rules of law applicable to the
former are applicable to the latter. Moore v. Kitsmiller, 201 S.W.3d 147, 151 (Tex.
App.—Tyler 2006, pet. denied). The burden of proof on the whole case is on the
plaintiff. Id. However, when the issue of contributory negligence is submitted to
the jury, the burden of proof is on the defendant to prove the defense by a
preponderance of the evidence. McDonald v. Dankworth, 212 S.W.3d 336, 340
(Tex. App.—Austin 2006, no pet.).
Here, Loomis points to still snapshots extracted from the Loomis truck’s
onboard video system, which were offered into evidence. These snapshots show
the Loomis truck, driven by Hospadales, in the left-most lane, approaching
McCoy’s truck and trailer, which is in the lane to Hospadales’s right. As
Hospadales approaches McCoy’s vehicle, the tires of McCoy’s truck are seen
touching the white line dividing the lanes, and the tires of the trailer are shown a
38
bit further to the left on the line. However, McCoy’s truck and trailer are never
seen leaving the lane in the photographs.
On appeal, Loomis asserts that the photographs constitute “undisputed
evidence” that McCoy’s trailer crossed the line as Hospadales passed and hit
Loomis’s truck. Loomis asserts that this caused its truck to cross into McCoy’s
lane and hit the back of McCoy’s truck. However, Loomis fails to recognize that
the jury not only saw these snapshots, it also saw the video of what occurred
immediately following these snapshots, it viewed the data taken from the onboard
monitoring system on the Loomis truck, and it heard the testimony of McCoy’s
expert, Tonda.
The video shows that McCoy’s truck and trailer were on the white line as
Hospadales approached. The video and the data show, as he continued to approach
McCoy’s vehicle, Hospadales navigated the armored truck to the left, toward the
shoulder. McCoy is then seen moving his truck to the right, off the white line and
completely back into his own lane. The video and the data show that Hospadales
moved the Loomis truck to the right. The video shows that the driver in the car in
front of Hospadales’s vehicle appeared to apply his brakes. The data indicates that
Hospadales then pressed hard on his brakes. He was moving his truck to the right
when he applied his brakes. The video shows McCoy continued to move right,
entered McCoy’s lane, and hit McCoy’s truck. The video shows that, before he hit
39
McCoy’s truck, the tires on McCoy’s truck were well within McCoy’s own lane.
The jury could have reasonably inferred that the tires of the trailer were also within
McCoy’s lane and were not within Hospadales’s lane immediately before the
collision. The data also shows that, immediately before the accident, Hospadales
had been driving the truck eight miles an hour over the speed limit. And the
onboard monitoring system recorded only one impact, that being when Hospadales
hit McCoy’s truck.
Tonda also testified that it was his expert opinion that there had only been
one impact and that was when Hospadales hit McCoy’s truck in McCoy’s lane.
Tonda explained how the video and the data supported his opinion.
Considering and weighing all of the evidence, we conclude that the jury’s
finding that McCoy was not contributorily negligent is not so against the great
weight and preponderance of the evidence as to be clearly wrong and unjust. See
Francis, 46 S.W.3d at 242. We hold the evidence was factually sufficient to
support the jury’s finding.
We overrule Loomis’s fifth issue.
40
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Keyes, Higley, and Lloyd.
41