City of Port Arthur v. Margaret Brown--Appeal from 136th District Court of Jefferson County
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In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-10-00539-CV
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CITY OF PORT ARTHUR, Appellant
V.
MARGARET BROWN, Appellee
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On Appeal from the 136th District Court
Jefferson County, Texas
Trial Cause No. D-182,314
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MEMORANDUM OPINION
The City of Port Arthur (the City) appeals from a jury‟s decision rejecting the
City‟s claim that its employee, Clint Tanner, was injured when a truck in which he was a
passenger was rear-ended by a pickup driven by Margaret Brown. See Tex. Lab. Code
Ann. § 417.001 (West 2006) (allowing a self-insured worker‟s compensation provider
that paid worker‟s compensation benefits to sue the person who caused an injury to the
self-insured‟s employee). In four issues, the City advances two arguments in its appeal
from the jury‟s verdict. In issues one and three, the City argues that the evidence
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conclusively establishes that Brown injured Tanner. Issues one through four argue that
the jury‟s verdict is contrary to the greater weight and preponderance of the evidence. We
affirm the trial court‟s judgment.
Background
In July 2007, Brown approached an intersection and stopped behind the City‟s
truck carrying Tanner; when the City‟s truck began moving forward, Brown took her foot
off her brake, and her pickup moved forward, bumping into the City‟s truck.
Photographs of the involved trucks show only slight damage to their bumpers. James
Bickham, another City employee and passenger in the City‟s pickup, testified that he was
not injured in the accident.
According to Tanner, he felt “a medium jolt[]” from the impact. After the
accident, Tanner told the investigating officer that he was not injured. Although Tanner
did not feel he had been injured on the day the accident occurred, he testified that about a
week or two later he began feeling a pain in his back that radiated down his left leg.
Three weeks after the accident, Tanner sought medical treatment in the emergency room
for neck and back pain. The next day Tanner saw Dr. Lance Craig, who treated Tanner
for a period of approximately five months after Tanner first saw him; Dr. Craig
diagnosed Tanner as having suffered a lumbar disk herniation. Ultimately, Dr. Craig
referred Tanner to a spinal surgeon in Houston, and in March 2008, Tanner had surgery
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to repair a herniated disk in his lower back. Dr. Craig testified that in his opinion, based
on Tanner‟s history, Tanner‟s herniated disk was caused by the accident.
In the sole issue submitted to the jury, the jury answered “No” to a question about
whether the rear-end collision caused the injury for which the City paid Tanner worker‟s
compensation benefits. Based on the jury‟s verdict, the trial court signed a take-nothing
judgment.
Analysis
As Tanner‟s subrogee, the City stands in the shoes of the injured employee. See
Bashara v. Baptist Mem’l Hosp. Sys., 685 S.W.2d 307, 311 (Tex. 1985). As the party
seeking an affirmative recovery, the City bore the burden of proof at trial. See Franks v.
Sematech, Inc., 936 S.W.2d 959, 960 (Tex. 1997) (per curiam) (“There is but one cause
of action for an employee‟s injuries, and it belongs to the employee.”). Because it lost an
issue on which it had the burden of proving at trial, the City “must demonstrate on appeal
that the evidence establishes, as a matter of law, all vital facts in support of the issue[]” if
it is to prevail on its legal sufficiency arguments. Dow Chem. Co. v. Francis, 46 S.W.3d
237, 241 (Tex. 2001).
With respect to reviewing a legal sufficiency issue that concerns the inferences to
be drawn from evidence admitted at a trial, “we credit evidence that supports the verdict
if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could
not.” Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006) (citing City of
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Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). According to the City, Dr. Craig‟s
opinion that the accident caused Tanner‟s herniated disk is conclusive and binding
because Brown did not present any expert testimony or evidence contradicting it. The
City also argues the jury should not have been asked to decide the case because the
evidence allowed the jury to reach only one conclusion—that the accident caused
Tanner‟s herniated disk. An appellate court conducting a legal sufficiency review cannot
“„disregard undisputed evidence that allows of only one logical inference.‟” City of
Keller, 168 S.W.3d at 814 (quoting St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519-20
(Tex. 2002)). “By definition, such evidence can be viewed in only one light, and
reasonable jurors can reach only one conclusion from it.” Id. However, evidence is
conclusive only if reasonable people could not differ in their conclusions. Id. at 816.
The City also challenges the jury‟s verdict on factual sufficiency grounds. As the
party that bore the burden of proof at trial, the City must demonstrate that the jury‟s
finding is “against the great weight and preponderance of the evidence[.]” Id. at 826. A
jury finding will be set aside “only if it is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust.” Cain v. Bain, 709 S.W.2d 175, 176 (Tex.
1986). Furthermore, in reviewing the factual sufficiency of the evidence, we may not
substitute our own judgment for that of the jury, even if we would reach a different
conclusion on the evidence. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.
1998).
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With respect to credibility determinations, “[j]urors are the sole judges of the
credibility of the witnesses and the weight to give their testimony.” City of Keller, 168
S.W.3d at 819 (footnote omitted). Juries are free to believe one witness and disbelieve
another, and to resolve inconsistencies in the testimony. McGalliard v. Kuhlmann, 722
S.W.2d 694, 697 (Tex. 1986). “Even uncontroverted expert testimony does not bind
jurors unless the subject matter is one for experts alone.” City of Keller, 168 S.W.3d at
820. Nevertheless, jurors “cannot ignore undisputed testimony that is clear, positive,
direct, otherwise credible, free from contradictions and inconsistencies, and could have
been readily controverted.” Id.
Because the jury answered “No” to the issue submitted to it, the jury decided the
City failed to meet its burden of proving by a preponderance of the evidence that Brown
caused Tanner‟s injury. While the City produced expert testimony relating Tanner‟s
lumbar disk injury, the City‟s expert, Dr. Craig, clearly indicated that his opinion was
based on the history Tanner provided to him. Dr. Craig stated that Tanner‟s symptoms
were consistent with the “injury-causing event[.]” However, Dr. Craig also explained that
after Tanner‟s initial visit in August 2007, he diagnosed Tanner as having suffered a
lumbar strain; Dr. Craig did not initially diagnose Tanner as having suffered a herniated
disk.
In September 2007, an MRI obtained on Tanner‟s lumbar spine showed that
Tanner had a bulging disk at L5-S1, and that he had degenerative disk disease. An MRI
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report done in September 2007 notes that there was no disk bulging or degeneration in
disks other than the bulge and degeneration noted at the L5-S1 level. Dr. Craig also
explained that in the course of treating patients with degenerative disk disease, it was not
uncommon to find that these patients also had disk bulges or herniations. With respect to
degenerative disk disease, Dr. Craig testified that, without testing or a history of
complaints, there is no way to tell how long the patient had suffered from the condition,
that degenerative disk disease is something that took years to develop, and that
continuing to work made everything get worse. The evidence showed that Tanner worked
between the date of the rear-end collision and the date he had surgery, and there were no
tests introduced at trial showing the condition of Tanner‟s lumbar spine before Brown
collided with him.
After being referred to a spinal surgeon, Tanner had back surgery in March 2008
to correct a herniated disk at L4-5. The spinal surgeon interpreted Tanner‟s September
2007 MRI as showing a herniated disk at L4-5. In relying on the spinal surgeon‟s
interpretation of Tanner‟s MRI, Dr. Craig stated that he disagreed with the radiologist‟s
interpretation that the MRI showed a herniated disk at L5-S1; instead, Dr. Craig opined
that Tanner‟s herniated disk was at L4-5, where the surgeon performed surgery. The jury
also heard that Dr. Craig has no specialized training in reading MRI films. Additionally,
the jury did not have the benefit of any testimony from the spinal surgeon or from the
radiologist who interpreted Tanner‟s September 2007 MRI.
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In this case, Dr. Craig conceded that his opinion was dependent on the accuracy of
Tanner‟s history. Our court has previously stated that “the presence or absence of pain,
based on the subjective complaints of an individual, is not a subject for experts or skilled
witnesses alone.” Waltrip v. Bilbon Corp., 38 S.W.3d 873, 882 (Tex. App.—Beaumont
2001, pet. denied). In this case, the jury could have been influenced by Dr. Craig‟s
testimony that a herniated disk can have a number of different causes other than trauma,
by Dr. Craig‟s reliance on Tanner‟s history, by the radiology report that showed no defect
at L4-5, or by the absence of an objective medical test to establish the condition of
Tanner‟s lumbar spine before the date the collision with Brown occurred. We conclude
the jury was free to disregard the testimony of Dr. Craig and the testimony of Tanner
tracing Tanner‟s back pain to the rear-end collision involving Brown. On this record, and
in light of the disputed evidence relating to the severity of the impact of the trucks in the
collision, we conclude that Dr. Craig‟s opinion tracing Tanner‟s herniated disk to the
rear-end collision with Brown was not conclusive on the issue of causation. We overrule
the City‟s argument that it established causation as a matter of law.
Additionally, after considering and weighing all of the evidence, we further
conclude that the jury‟s verdict is not so contrary to the overwhelming weight and
preponderance of the evidence that the jury‟s verdict is clearly wrong and unjust. While
we might not have reached the same conclusion had we been sitting as jurors, we are not
free on this record to disregard the jury‟s rejection of the City‟s theory that the accident
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with Brown injured Tanner‟s back. Therefore, we also overrule the City‟s request for new
trial.
We hold that the evidence admitted before the jury presented fact issues, the trial
judge did not err in submitting the case to the jury, nor did the trial judge err in denying
the City‟s motion for judgment notwithstanding the verdict. Having overruled issues one
through four, we affirm the trial court‟s judgment.
AFFIRMED.
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HOLLIS HORTON
Justice
Submitted on August 15, 2011
Opinion Delivered September 29, 2011
Before Gaultney, Kreger, and Horton, JJ.
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