Bill Miller Bar-B-Q Enterprises, Ltd. v. Rose Marie Gonzales--Appeal from 131st Judicial District Court of Bexar County

CONCURRING AND DISSENTING OPINION

No. 04-04-00747-CV

BILL MILLER BAR-B-Q ENTERPRISES, LTD.,

Appellant

v.

Rose Marie GONZALES,

Appellee

From the 131st Judicial District Court, Bexar County, Texas

Trial Court No. 2002-CI-16203

Honorable John Gabriel, Judge Presiding

Opinion by: Catherine Stone, Justice

Concurring and dissenting opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Rebecca Simmons, Justice

Delivered and Filed: August 24, 2005

I concur in the majority s judgment except to the extent that it affirms the award of $26,000 for future medical expenses. There is simply no evidence establishing either that Rose Marie Gonzales // will, in reasonable probability, require epidural steroidal injections in the future or that $2000 per injection is a reasonable cost.

As the majority states, Texas follows the rule of reasonable probability. Fisher v. Coastal Transp. Co., 149 Tex. 224, 229, 230 S.W.2d 522, 525 (1950). Under this rule, Bill Miller is liable for all the consequences flowing from [Gonzales s] injury, including such as a jury might say, from the evidence presented to them, would with reasonable probability occur at some future time; but [it] is not liable for results which may possibly occur in the future. Id. 149 Tex. at 227, 230 S.W.2d at 523. Gonzales was thus required to present evidence to establish, in all reasonable probability, that future medical care will be required and the reasonable cost of that care. DaimlerChrysler Corp. v. Hillhouse, 161 S.W.3d 541, 556 (Tex. App San Antonio 2004, pet. filed). // Accordingly, to justify the majority s conclusion that the evidence is legally sufficient to support an award of ... $24,000 in damages for future medical expenses [b]ased on the testimony presented, specifically including the testimony about future epidural injections and the testimony about anticipated conservative treatment for up to four years, there must be evidence that Gonzales will, in reasonable probability, require epidural injections in the future and that $2000 per injection is a reasonable cost. There is neither. Indeed, as Bill Miller points out in its post-submission brief, Dr. Bustamente was asked four times whether Gonzales would require future medical treatment; and each time, rather than state that she would under any standard he testified her future medical care would depend upon her symptomology. And he never testified that either the $400-500 per injection he charges, or the $1500-2000 per injection charged by other doctors, is reasonable. Accordingly, I would reverse the trial court s judgment insofar as it awards damages for future medical expenses and render a take-nothing judgment on this element of damages. See Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 828 (Tex. App Dallas 1999, pet. denied) (holding that evidence was legally insufficient to support jury s finding of future medicals and consequently reversing judgment and rendering taking nothing judgment on this element of damages).

Sarah B. Duncan, Justice