Flagship Hotel, LTD v. Anthony B. Hayward--Appeal from 10th District Court of Galveston County

Reversed and Rendered and Memorandum Opinion filed 16, 2006

Reversed and Rendered and Memorandum Opinion filed 16, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00830-CV

____________

FLAGSHIP HOTEL, LTD., Appellant

V.

ANTHONY B. HAYWARD, Appellee

On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Cause No. 03CV0032

M E M O R A N D U M O P I N I O N

Appellee, Anthony B. Hayward, sued appellant, Flagship Hotel, Ltd. (AFlagship@), for negligence. A jury found Flagship negligent and awarded damages in the amount of $500,000. Flagship contends this judgment was in error for three reasons: (1) the trial court erred in failing to grant appellant=s motion for JNOV because appellee=s expert evidence was legally insufficient to prove causation; (2) the evidence was legally insufficient to prove future damages; and (3) the evidence was legally insufficient to prove negligence under a premises liability theory. We do not reach Flagship=s second and third issues because we hold the evidence was legally insufficient to support the jury=s finding of proximate cause; therefore, we reverse and render judgment that Hayward take nothing by his suit.

Factual and Procedural Background

Flagship employed Hayward originally from 1997 until the end of 1998 as its chief engineer. Hayward quit that job in order to work for a different hotel. However, in 2000, Flagship contacted Hayward and offered him the position of chief engineer, so that he could work on renovation projects for Flagship. Hayward accepted the position.

Hayward=s work entailed removing fixtures from a hotel in Houston and transporting them to Galveston. He then removed fixtures from the Flagship roomsCsuch as sinksCand installed the fixtures from the Houston hotel. This process involved lifting 150-pound marble sinks, cutting them to size, and then installing them into each of the rooms. According to Hayward, the work was Avery heavy.@

During the demolition process, Hayward began experiencing pain in his neck and back. He saw a doctor who prescribed some pain medication, but who did not recommend that Hayward cease working. However, in May 2002, Hayward was carrying a marble sink up one of the concrete ramps at the Flagship hotel when the ramp crumbled underneath his foot. His leg went into the void beneath the concrete support, and the sink was destroyed. Hayward testified that his leg was not seriously injured, but that he felt Aa major burning sensation@ that turned into a stinging sensation in his back. Hayward was 39 years old at the time of the accident.

Prior to the accident, Hayward had been diagnosed with a narrowing of the spinal canal. Hayward=s expert, Dr. Kim Jeffrey Garges, testified that Hayward=s condition was the result of a degenerative spinal disease. Prior to the accident, Dr. Garges had recommended a treatment of pain management, but had not recommended surgery or that Hayward alter his working conditions. Following the accidentCfrom May until NovemberCHayward did not return to Dr. Garges, or seek a change in treatment. In November, Dr. Garges noted that Hayward had not suffered any recent accidents or injuries. Yet, Hayward=s pain and numbness had increased. While not noted in his records, Dr. Garges testified he recommended that Hayward alter his working conditions.

During the November visitCbecause of the increased painCDr. Garges ordered new tests to be performed. They showed problems with Hayward=s nerve roots. At Hayward=s next appointment, in January 2003, Hayward=s condition had worsened. Dr. Garges scheduled surgery for later that month, which was performed on January 29, 2003. That surgery corrected many of the problems associated with the upper part of Hayward=s spine, but not the lower back.

Although Hayward testified, and Dr. Garges= notes indicate, that Hayward had related the same to himCthat his pain had greatly increased since May 2002, there is no other testimony directly linking the need for surgery to the accident. Dr. Garges testified that he could not in all medical probability relate Hayward=s condition back to the accident versus natural progression of his condition.

The jury found, in a 10-2 verdict, that Flagship was liable to Hayward. It awarded a total of $500,000 in damages. Flagship timely filed notice of appeal. Because we hold that there is no evidence of proximate causation, we reverse and render a take-nothing judgment.

Analysis

I. Standard of Review

We will sustain a legal sufficiency or Ano evidence@ challenge if the record shows one of the following: (1) a complete absence of a vital fact, (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). We consider the evidence in the light most favorable to the verdict and indulge every reasonable inference that supports it. Id. at 822. The evidence is legally sufficient if it would enable reasonable and fair minded people to reach the verdict under review. Id. at 827. We credit favorable evidence if reasonable jurors could consider it, and disregard contrary evidence unless reasonable jurors could not disregard it. See id. The trier of fact is the sole judge of the witnesses= credibility and the weight to be given their testimony. See id. at 819. We cannot substitute our judgment for that of the jury, so long as the evidence falls within the zone of reasonable disagreement. See id. at 822. But, Aif the evidence allows of only one inference, neither jurors nor the reviewing court may disregard it.@ Id. In this case, there is a complete absence of evidence proving causation; the only other evidence purportedly supporting causation came from Hayward, and his lay evidence is not evidence we may credit.

II. Application of Law to Facts

Hayward was required to plead and prove that Flagship=s negligence was the proximate cause of his injury. See Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). Proximate cause consists of cause in fact and foreseeability. Id. If Hayward failed to prove proximate cause, then his entire cause of action fails. In cases concerning back injuries, expert testimony is usually required. See id. at 119 (citing cases); see also Kemp v. Havens, 14-05-00060-CV, 2006 WL 1140319, at *3 (Tex. App.CHouston [14th Dist.] April 27, 2006, no pet.) (stating expert testimony is required to establish that an accident caused newly herniated disks when there are pre-existing conditions and injuries). If there is no medical testimony, then some other type of expert testimony is necessary to link the alleged negligence with the injury. Leitch, 935 S.W.2d at 119. Incompetent opinion testimony will not suffice to support a finding in a no-evidence review. Id.

In this case, Hayward offered no scientifically reliable evidence linking his need for surgery to the accident. In fact, the only expert testimony offered was indecisive at best. Dr. Garges testified by deposition of possibilities onlyCthat it was possible for Hayward=s injuries and surgery to be precipitated either by the fall, or by the normal progression of the degenerative disease. A medical experts= testimony must be based on reasonable medical probability. See Brookshire Brothers, Inc. v. Smith, 176 S.W.3d 30, 36 (Tex. App.CHouston [1st Dist.] 2004, pet. denied) (explaining that expert testimony not based on reasonable medical probability, but relying instead on possibility, speculation or surmise does not assist the jury, and cannot support a judgment), cert. denied, CS. Ct.C, 2006 WL 2066640 (2006). Expert testimony was required in this case because of the pre-existing medical condition. Yet the only expert testimony offered fell short of the evidentiary requirement.

During cross examination, Dr. Garges was asked a series of questions by counsel for appellant:

Q. Not to belabor a point and drag you on, but just to finish up, the symptoms you stated in your November 5, 2002 notes and you just testified to increased over what they were inApril?

A. That=s correct.

Q. That symtomatic condition could have occurred naturally could it not?

A. It could have, yes.

Q. So, you cannot in all medical probability relate that to a natural progression or an unnatural progression, can you?

A. That=s correct.

The supreme court has consistently held that expert medical testimony can enable a plaintiff to go to the jury if the evidence establishes reasonable probability of a causal connection between employment and the present injury. Schaefer v. Texas Employers= Ins. Ass=n, 612 S.W.2d 199, 202 (Tex. 1980). In the absence of reasonable probability, the inference of causation amounts to no more than conjecture or speculation. Id.

Here, Dr. Garges= testimony does no more than suggest a possibility as to the cause of appellant=s injury. Expert testimony not based on reasonable medical probability, but instead relying on possibility, speculation, and surmise is no evidence of causation. Merrell Dow Pharm. v. Havner, 953 S.W.2d 706, 712 (Tex. 1997).

Hayward argues, however, that this lay testimony may support a judgment. It is true that there are generally three methods of proving a causal nexus between an event and resulting injuries: (1) general experience and common sense that will enable a lay person fairly to determine the causal nexus; (2) expert testimony establishing a traceable chain of causation from injuries back to the event; and (3) expert testimony showing a probable cause nexus. Kemp, 2006 WL 1140319, at *3 (citing cases). While it is true that any combination of the above categories can support a judgment generally, as we explained above, there are situations in which expert testimony is required. Because this is one of those cases, Hayward=s lay testimony was simply not enough to provide probative evidence.

A lay jury cannot use its common experience to determine whether or not an accident in May, as opposed to the pre-existing condition, caused a need for surgery scheduled months later. Indeed, there was a six-month delay in seeing the doctor following the accident and the doctor, a specialist in spinal injuries, could not determine what precipitated the need for surgery with any medical certainty. Considering that Hayward suffered from a pre-existing degenerative spinal condition that could have led to the need for surgery, we hold that this situation was beyond of the purview of general experience and common sense. Thus, Hayward was required to offer some expert testimony on the issue of causation. Because there was no expert testimony with any reference to the probableCas opposed to the possibleCcausal nexus, we hold there was no evidence on the issue of proximate cause.

Conclusion

Having determined there is no evidence on the issue of proximate causation, we need not reach Appellant=s remaining issues. We reverse the judgment of the trial court, and render a take-nothing judgment.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed November 16, 2006.

Panel consists of Justices Anderson, Hudson, and Guzman.