Brent Howard v. Michael E. Casey--Appeal from 98th District Court of Travis County

howard v. casey IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-93-091-CV
BRENT HOWARD,

APPELLANT

 
vs.
MICHAEL E. CASEY,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. 91-6574, HONORABLE JERRY A. DELLANA, JUDGE PRESIDING

This is an appeal from a personal injury action arising out of an automobile accident in which appellant Brent Howard was a passenger in a vehicle operated by appellee Michael Casey. On appeal, Howard argues the trial court abused its discretion by denying his motion for new trial because the jury's failure to award damages in the case was against the great weight and preponderance of the evidence. We will affirm the trial court's judgment.

 
FACTS

On November 5, 1989, at approximately 1:00 a.m., Howard, Casey and another person were traveling along the outskirts of Ruidoso, New Mexico. Casey was driving, with Howard and the other person as passengers. Casey lost control of the car and, in an effort to regain control, drove into a ravine. No one reported serious injuries at the scene; however, the next day Howard went to the Texas Tech University Health Services Center in Lubbock complaining of back pain. Howard subsequently was sent to Lubbock General Hospital, where he was admitted and stayed for approximately five days. The doctors diagnosed Howard with a fracture of the second vertebral body of the lumbar spine.

Howard filed suit against Casey to recover damages for his personal injuries. At trial the jury found that Casey was negligent, and the trial court rendered judgment based on the jury's verdict. The jury found damages as follows:

 

Reasonable and necessary medical expenses incurred in the past: $ 5,613.95

 

Reasonable and necessary medical expenses which in reasonable medical probability will be incurred in the future: $ 882.00

 

Conscious physical pain and mental anguish in the past: $ 4,050.00

 

Conscious physical pain and mental anguish which will probably occur in the future: $ 0

 

Loss of earning capacity: $ 0

 

Physical impairment: $ 0

 

Howard filed a motion for new trial, alleging that the jury's failure to award damages for future physical pain and mental anguish and for impairment was against the great weight and preponderance of the evidence in the case. The trial court overruled the motion, and Howard appealed.

 
STANDARD OF REVIEW

A trial court has broad discretion in ruling on a motion for new trial, and its decision will not be disturbed on appeal absent a clear abuse of discretion. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984); Hicks v. Ricardo, 834 S.W.2d 587, 590 (Tex. App.--Houston [1st Dist.] 1992, no writ). In reviewing a factual sufficiency challenge, an appellate court must consider and weigh all of the evidence presented in the case, and should set aside the verdict only if the jury finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Hicks, 834 S.W.2d at 590; Marshall v. Superior Heat Treating Co., 826 S.W.2d 197, 199 (Tex. App.--Fort Worth 1992, no writ). The appellate court may reverse and remand the case when the jury's findings are against the great weight and preponderance of the evidence. Balandran v. Furr's, Inc., 833 S.W.2d 648, 650 (Tex. App.--El Paso 1992, no writ).

 
DISCUSSION

In two points of error, Howard contends the jury's failure to award damages for future conscious physical pain and mental anguish and for impairment was so against the great weight and preponderance of the evidence as to be manifestly unjust. Howard argues that by awarding damages for future medical expenses ($882), the jury implicitly found that Howard would suffer from future pain and mental anguish. (1) He further argues that the undisputed testimony and other evidence presented at trial necessitated an award for impairment. The evidence in the record provides the following:

Dr. Robert King, an orthopedic surgeon consulted by Howard's parents after the injury, testified by videotaped deposition that after consultation, he diagnosed Howard with a "compression" fracture of the second vertebral body of the lumbar spine. Dr. King stated that as a result of the injury, Howard was "more likely" than not to develop arthritic changes in the injured region and more likely to continue to have some pain associated with certain physical activities. Later, however, Dr. King clarified this statement by agreeing that everyone is at risk of developing arthritic changes, but that Howard was simply more predisposed than others. He further stated that in his opinion, Howard had suffered 5% to 7% permanent impairment to his body. Dr. King defined "impairment" as a term which attempts to quantify conditions in terms of loss of function; however, he agreed that a 5% impairment rating would not necessarily correspond with a 5% reduction in physical activities or a 5% loss of enjoyment of life. Dr. King agreed that Howard was completely healed by the time of trial, and testified that after reviewing an MRI scan done on Howard in February of 1992, he was unable to find from the scan any objective medical or clinical reason why Howard might be having discomfort in his back over two years after the injury. Dr. King stated that based on his own tests, and on the level of discomfort Howard had reported, he had advised Howard to take Tylenol or Advil for any pain he may incur. He had also prescribed certain exercises for Howard to help with discomfort. At the time of trial, Dr. King was not restricting Howard from pursuing any physical activities. He stated that certain physical activities could cause Howard pain in the future, and that the activities Howard reported as still causing him pain would probably continue to do so. Dr. King agreed that some of the activities that Howard complained caused him pain could cause pain in a non-injured person as well. He testified that the only reason he was of the opinion that Howard was continuing to have pain at the time of trial was because Howard had reported having such pain, and that Dr. King had found no objective basis for the pain. Finally, Dr. King agreed with the statement that in all probability, there was no reason that Howard could not lead a normal and productive life, participating in the sports in which he currently participates, and simply continuing to take Advil and aspirin as needed. The record reflects that Howard's arm was in a cast at the time of Dr. King's deposition as a result of an injury Howard suffered while playing volleyball. Dr. King stated that he was treating Howard for this injury but that Howard had not mentioned any problems regarding back pain during these visits.

Dr. James L. Smith, another orthopedic surgeon who began treating Howard in December of 1989, testified through written interrogatories taken on August 12, 1992. Dr. Smith testified that in regard to his last examination of Howard on August 22, 1991, he was unable to detect or confirm any objective, clinical, or medical reason for any back pain. He answered "yes" when asked if it was possible Howard was complaining of back pain two and one-half years after the accident because he was subconsciously motivated by secondary gain factors, but also stated he had no personal opinion as to whether this was, in fact, the case. (2) Dr. Smith stated that under the American Medical Association Guidelines to Evaluation of Permanent Impairment, Howard had a 7% impairment of his whole person; however, Dr. Smith also testified that he felt these guidelines were inapplicable to the instant case. (3) In a letter dated September 13, 1991, addressed to Howard's previous attorney, Dr. Smith stated that he would not have anticipated Howard's complaints of pain to last so long after the injury, did not expect them to be permanent, and in the meantime had recommended limiting painful activities and taking over-the-counter anti-inflammatories such as Advil for any pain. Dr. Smith further stated in the letter that Howard was not at a great risk for developing osteoarthritis because the fracture involved the upper lumbar region of the spine, and most arthritic conditions occur in the lower lumbar region. When asked about the "reasonable medical probability" of chronic pain and discomfort, Dr. Smith replied that it was possible Howard would have mild discomfort for two years following the injury, and that the need for future medical care for Howard was "unlikely."

Howard testified that after being released from his initial hospitalization, he was in a great deal of pain. Three and one-half weeks after the accident, he began resuming a "somewhat normal lifestyle," but still wore a back brace prescribed by the doctors, and was restricted from strenuous physical activities. Howard stated he wore his back brace full time for four months, then wore it for another two or three months when performing any sporting activity, and then was fully released from its use after March 19, 1990. He stated that for the first six months after his injury, he was instructed by Dr. Smith to "moderate" his participation in physical sporting activities; thereafter, he was instructed to resume a normal lifestyle, except that he was to avoid heavy lifting and contact sports for the next several months. Howard testified that before the accident he was very active: he lifted weights, played tennis, basketball and football, and water skied. He stated that at the time of his testimony he was still having pain in his back, often from sitting for long periods of time in a car or from physical activities. He stated he had not been able to resume the normal lifestyle he had before the injury, but that he had attempted to do almost everything he was able to do before the injury. Finally, Howard testified he was worried about the activities he would be able to enjoy in the future.

Howard admitted that Dr. Smith had told him six months after the accident that over the long-run he should have little trouble with his back. Howard stated the only medicine he had been prescribed since the accident was Tylenol 3 when he left the hospital in Lubbock, but that he had not refilled that prescription. Howard admitted he participated in volleyball and softball during the spring of 1990; played soccer for his fraternity team; played intramural football; water skied (some twenty times during the summer of 1991); played racquetball; played tennis; boogie-boarded; went inner-tubing; went to Schlitterbahn (a water amusement park); played water volleyball; and shot baskets a few times. In his opinion, however, Howard felt he was not as competitive in some of these sports as he was before the injury. When asked about his use of Advil or aspirin, Howard admitted he had taken none that day and had none with him while in court that day or the previous day, but stated that he usually carries some in his car.

Howard's mother and his girlfriend also testified at trial. Both witnesses testified that Howard was limited in performing certain physical activities and that sitting for prolonged periods of time would cause Howard pain. Both witnesses supported Howard's testimony regarding the pain he felt at the time of trial and the general decrease in his ability to function as he did before the injury.

At least one Texas court of appeals has held that the fact that an injury has been proven is not, in itself, a sufficient basis for an award of pain and suffering or physical impairment. Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801, 805 (Tex. App.--Dallas 1988, no writ). The determination of damages for past and future physical pain, mental anguish, and physical impairment are issues that are "particularly within the province of the jury." Marshall, 826 S.W.2d at 200; see Hicks, 834 S.W.2d at 591; see also Balandran, 833 S.W.2d at 648. When faced with conflicting evidence on these issues, the jury "may believe one witness and disbelieve others" and "may resolve inconsistencies in the testimony of any witness." McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). Indeed, it is up to the jury "to weigh opinion evidence and the judgment of experts. . . . [and] to decide which expert witness should be credited." Pilkington v. Kornell, 822 S.W.2d 223, 230 (Tex. App.--Dallas 1991, writ denied). A jury may believe all or any part of a witness' testimony, and may disregard any or all of that testimony. Id.

Texas courts of appeals do not agree whether a party necessarily is entitled to damages for future physical pain and mental anguish, when the jury finds that he will incur future medical expenses. See Hyler v. Boyter, 823 S.W.2d 425, 427 (Tex. App.--Houston [1st Dist.] 1992, no writ); Blizzard, 756 S.W.2d at 805. The Blizzard court, in attempting to distinguish the two lines of cases, concluded that:

 

The cases perhaps indicate that appellate courts are more reluctant to hold jury findings of no damages for pain and suffering contrary to the great weight and preponderance of the evidence when the indicia of injury and damages are more subjective than objective. The more evidence of outward signs of pain, the less findings of damages depend upon the claimant's own feelings and complaints, the more likely appellate courts are to overturn jury findings of no damages for pain and suffering.

 

Blizzard, 756 S.W.2d at 805 (emphasis added). Although Blizzard addressed the issue of a jury awarding past medical expenses and refusing to award damages for past pain and suffering, we find the same analysis applies to the instant case, wherein the jury awarded future medical expenses while failing to award damages for future pain and mental anguish. See Hyler, 823 S.W.2d at 427.

In the instant case, there was conflicting evidence relating to the award of damages for future physical pain and mental anguish. Although Howard, his mother, and his girlfriend all testified that Howard was still having pain in his back at the time of trial, Dr. King and Dr. Smith both testified that they had found no objective, medical reason for the continued pain. Furthermore, although Howard claimed that strenuous physical activities caused him discomfort, he also testified as to his continued participation in sports and other strenuous physical activities.

Considering this conflicting evidence, we cannot say that the jury's failure to award damages for future physical pain and mental anguish is so against the great weight and preponderance of the evidence as to be manifestly unjust. The jury "is the sole judge of the witnesses' credibility and the weight to be given their testimony." Pilkington, 822 S.W.2d at 231. Furthermore, under the "indicia of injury" analysis set forth in the Blizzard case, we find that the complaints here relating to damages for future physical pain and mental anguish were subjective in nature. Thus, our deference to the jury's findings of damages in this case is especially proper. Hyler, 823 S.W.2d at 427; Blizzard, 756 S.W.2d at 805. Accordingly, we overrule Howard's first point of error.

Howard contends in his second point of error that the jury's failure to award damages for physical impairment was against the great weight and preponderance of the evidence. Howard argues that the jury was not asked to divide the issue into past and future impairment and that evidence of the fracture, the five-day hospitalization, the requirement of wearing a back brace for three to four months, the inability to participate in normal physical activities and the impairment ratings to which both doctors testified, required a finding of at least some physical impairment in the past.

To recover damages for physical impairment, the injured party must "`sustain the burden of proving that the effect of his physical impairment extends beyond any impediment to his earning capacity and beyond any pain and suffering to the extent that it produces a separate and distinct loss that is substantial and for which he should be compensated.'" Landacre v. Armstrong Bldg. Maintenance Co., 725 S.W.2d 323, 324 (Tex. App.--Corpus Christi 1986, writ ref'd n.r.e.) (emphasis added) (citations omitted); Allen v. Whisenhunt, 603 S.W.2d 242, 243 (Tex. Civ. App.--Houston [14th Dist.] 1980, writ dism'd) (quoting Green v. Baldree, 497 S.W.2d 342 (Tex. Civ. App.--Houston [14th Dist.] 1973, no writ)). Furthermore, a finding of damages for physical impairment is a "subjective determination particularly in the province of the jury." Marshall, 826 S.W.2d at 200; Landacre, 725 S.W.2d at 325. Thus, "[t]he mere fact of injury . . . does not prove compensable pain and suffering, and certainly not impairment and lost earnings. . . ." Blizzard, 756 S.W.2d at 805 (emphasis added); see Landacre, 725 S.W.2d at 324; but cf. Robinson v. Minick, 755 S.W.2d 890, 894 (Tex. App.--Houston [1st Dist.] 1988, writ denied) (holding that undisputed, objective evidence of facial fractures, surgery, and hospitalization required an award for past physical impairment).

Based upon the record, we cannot say that the jury's failure to award damages for impairment was not based upon factually sufficient evidence. Although the doctors testified Howard had suffered a 5% to 7% impairment, Dr. Smith went on to testify that the guidelines used to determine this rating were inapplicable to the instant case. The only other evidence relating to impairment was subjective in nature, and the jury's finding in this regard was based essentially on the weight and credibility it chose to give to various evidence and testimony. Furthermore, the jury had before it evidence of Howard's participation in numerous physical activities since his injury, which may have contributed to its failure to find that Howard suffered any impairment. Even if the jury believed that Howard was unable to perform certain physical activities as well as before the injury, such a finding would not mandate an award for physical impairment. See Landacre, 725 S.W.2d at 325; see also Platt v. Fregia, 597 S.W.2d 495 (Tex. Civ. App.--Beaumont 1980, writ ref'd n.r.e.).

Howard had the burden to prove a substantial loss for which he deserved compensation beyond that awarded for pain and suffering. Landacre, 725 S.W.2d at 324; Allen, 603 S.W.2d at 243. Based on the evidence as a whole, we cannot say that the jury's failure to find that Howard met this burden was against the great weight and preponderance of the evidence. Accordingly, we overrule Howard's second point of error.

We affirm the judgment of the trial court.

 

Marilyn Aboussie, Justice

Before Chief Justice Carroll, Justices Aboussie and B. A. Smith

Affirmed

Filed: November 10, 1993

Do Not Publish

1. Although no one challenges the award of $882 for future medical expenses, our review of the record does not reveal the basis for the jury's award of this specific amount.

2. Dr. King previously defined the term "secondary gain" as the situation in which people may amplify their complaints of pain "because of other tangible or perceived tangible rewards."

3. Dr. Smith testified that he used the AMA guidelines at the request of an attorney who at one point was the attorney of record for Howard. While still representing Howard, the attorney sought medical information from Dr. Smith regarding Howard's injuries, and requested him to use the AMA guidelines in assigning an impairment rating to Howard's condition. Dr. Smith testified that these guidelines are required by law to be used for worker's compensation claims, and though "not really applicable in this case . . . at her request I used it."