N.N., Individually and a/n/f of A.B. v. The Institute for Rehabilitation and Research--Appeal from 334th District Court of Harris County

In The

Court of Appeals

For The

First District of Texas

NO. 01-02-01101-CV

N.N. A/N/F/ OF A.B., Appellant

V.

THE INSTITUTE FOR REHABILITATION AND RESEARCH, Appellee

On Appeal from the 334th District Court

Harris County, Texas

Trial Court Cause No. 1999-42840

DISSENTING OPINION

Because there is no evidence in the record to support an award of future mental anguish, I respectfully dissent.

The majority opinion cites Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788 (Tex. 2006), as changing, by an express holding, the standard of appellate review for legal sufficiency of evidence of future mental anguish damages. In reaching this conclusion, the majority emphasizes that the Supreme Court's majority opinion in Fifth Club (1) distinguished Saenz (1) and Parkway (2) as not involving personal injuries and (2) noted that historically, "some types of disturbing or shocking injuries have been found sufficient to support an inference that the injury was accompanied by mental anguish." See id. at 797. There are two problems with the majority's interpretation of Fifth Club. First, the Fifth Club majority opinion states no express holding regarding the standard of review. Second, despite recognizing that disturbing or shocking injuries have warranted a finding of mental anguish, see id., the Fifth Club majority opinion does not apply that rule to the issue of future mental anguish damages. Instead, the majority opinion relies on the evidence of the nature and duration of the mental anguish and the severity of the injury. Id. at 797-98.

In Fifth Club, Ramirez, the respondent, and his wife both testified that Ramirez continued to have the symptoms of his mental suffering at the time of trial, almost two years after his injury, and that he continued to have disruptions in his daily routine. The supreme court stated, "The evidence shows the nature of Ramirez's mental anguish, its lasting duration, and the severity of his injuries, and is therefore legally sufficient to support future mental anguish damages." Id. The court further stated, "We believe the severe beating received by Ramirez provided an adequate basis for the jury to reasonably conclude that he would continue to suffer substantial disruptions in his daily routine of the kind described in his and his wife's testimony that he had already suffered in the past." Id. at 798. (Emphasis added.) Thus the Fifth Club majority opinion based its conclusion on the actual evidence reflected in the record, not only of the nature of the injury, but also the evidence of the mental anguish related to the injury and its lasting duration. See id. The majority opinion did not, therefore, as the majority opinion does here, infer future mental anguish damages from the fact of the injury.

In our case, the witnesses who had current contact with A.B., and therefore were in a position to know of any continuing mental suffering, were her mother, N.N., and her stepfather. Yet, their testimony did not address either A.B.'s present symptoms of mental suffering or the likelihood of her future suffering. N.N.'s testimony regarding A.B.'s fears and sadness related primarily to the period of time that N.N. was in rehabilitation and soon afterwards--a period that terminated approximately four years before trial. N.N. took A.B. to a psychiatrist, Dr. Scott-Gurnell, in March 1999, but testified that A.B.'s last visit with Dr. Scott-Gurnell was on April 11, 2000, two years before trial, and N.N. testified that A.B. had not seen a psychiatrist or psychologist since April 11, 2000. N.N. further testified that A.B. had been living alone since August 2001. A.B.'s stepfather testified that, on the day after A.B.'s alleged assault, she acted the way she did before. He did not testify about any present symptoms of mental suffering.

A.B. did not testify at trial. However, her videotaped deposition, which was taken on December 19, 1999, more than two years before trial, was shown to the jury, and the court reporter transcribed the testimony for the reporter's record. In that deposition, A.B. did not testify about any present mental suffering or any disruption to her daily life that was a result of the assault.

The majority refers to the testimony of Dr. Francisco Perez as supporting an inference of future mental anguish. Dr. Perez was not A.B.'s treating psychologist. He was a neuropsychologist hired by A.B.'s attorney to examine A.B. and to testify regarding his professional opinion of her mental state. According to N.N.'s testimony, confirmed by Dr. Perez, Dr. Perez interviewed A.B. four times: first on December 1, 1997, twice in June 1998, and once in December 1999. Thus, his last examination of A.B. occurred about two and one-half years before trial. Accordingly, his testimony regarding the extent of A.B.'s explicit memory necessarily refers to that time. Dr. Perez did not testify regarding A.B.'s present or continuing mental suffering. Even if Dr. Perez correctly testified that A.B. is "incapable" of traditional therapy, that she cannot express her emotions clearly, that her improving memory will cause her to remember the assault more, and her implicit memories will not lessen as quickly as her explicit memories, these facts are not evidence of mental anguish, past, present, or future.

Many of the facts stated by the majority are evidence of past mental anguish, for which A.B. has been compensated. There is no evidence, however, to support a finding of or award for future mental anguish. Accordingly, I would affirm the judgment of the trial court.

Sam Nuchia

Justice

Panel consists of Justices Nuchia, Jennings, and Alcala.

Justice Nuchia, dissenting.

1. Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607 (Tex. 1996).

2. Parkway Co. v. Woodruff, 901 S.W.2d 434 (Tex. 1995).