Karen Moore v. State Farm Mutual Automobile Insurance Company

Opinion issued June 3, 2010. In The Court of Appeals For The First District of Texas ———————————— NO. 01-09-00657-CV ——————————— Karen Moore, Appellant V. State Farm Mutual Automobile Insurance Company, Appellee On Appeal from the 405th District Court Galveston County, Texas Trial Court Case No. 07CV1360 MEMORANDUM OPINION This is a personal injury suit arising out of an automobile accident in which appellant, Karen Moore, sued appellee, State Farm Mutual Automobile Insurance Company (“State Farm”), under the underinsured motorist provision of Moore’s automobile policy with State Farm. The jury returned a verdict that found the underinsured motorist negligent, and awarded Moore $6,100 for past medical care, but awarded her no damages for future medical care and no damages for past or future pain, suffering, or impairment. In her sole issue, Moore challenges the factual sufficiency of the evidence to support the jury’s finding of no damages for her past and future pain and mental anguish. We affirm. Background In 2004, Moore was driving to work when an underinsured motorist negligently struck her car. Moore first described the other driver’s collision with her car as a “heavy impact,” but later as “a bump,” describing the damage to the vehicle as “slight.” The accident left a “scuff mark” and a “dent” in the rear bumper of Moore’s vehicle. Moore testified that she hit her head on the steering wheel, but when shown at trial a report she filled out 19 days after the accident, she admitted that she noted on the report that no part of her body hit the vehicle. After the accident, she did not request an ambulance, she did not seek immediate medical care, and she stated to the accident investigator that she was not injured. After she left the scene of the accident, Moore went first to work and then to the hospital. She testified that she went to the hospital because she felt a stabbing pain in her back and neck and was concerned that the accident might have shifted titanium plates in her neck. She had titanium plates because she had a double-level cervical fusion surgery at the C5-6 and C6-7 vertebrae in 1999, with the purpose of the surgery to correct a condition that was either degenerative or the result of a 1993 automobile accident, or both. Although she had surgery that corrected only the C5-6 and C6-7 vertebrae, she had problems with the C4-5 vertebrae too. A medical record from December 11, 1998, shows she received a C4-5 Cervical Discogram that revealed a “posterior tear with free extravasation with moderate to severe concordant left shoulder pain.” The 1998 report also noted a “2 mm protrusion at C4-5.” She testified that after the 1999 surgery she was asymptomatic and that the surgery largely cured her back and neck pain. The record shows that she filled a prescription for the pain medication Propoxyphene approximately one year before the accident, but the record is not clear whether the medication was for back pain related to the 1999 surgery. The hospital examined Moore and recommended that she contact the surgeon that performed her 1999 cervical fusion surgery. Moore was not able to see the surgeon, Dr. Gertzbein, M.D., for one month, and took Tylenol or Advil for what she described as a “stabbing pain in [her] neck and head.” Before she saw Dr. Gertzbein, Moore visited a chiropractic clinic and treatment center called Balanced Bodies Wellness Center. A medical report from the Center in 2004 noted that “[d]isc spacing is relatively well maintained in the unfused segments,” and that there is “no evidence of swelling or edema.” Moore testified that the Center would not treat her because she had titanium in her neck; however, the medical records show that she did not return to the facility because the facility refused to file a third party insurance claim. Also in 2004, she saw Dr. Gertzbein, who ordered MRIs. The MRIs demonstrated a “small herniated disc at the C4-5 level, which is the level above the previous surgical site.” Dr. Gertzbein “discussed the findings with her . . . [and] indicated that she would likely improve with time and isometric exercises . . . .” He also recommended physical therapy. Moore attended physical therapy three times. Although at least seven visits were scheduled, she “no showed” for four of the visits, and by August 2004, she discontinued treatment. She returned to Dr. Gertzbein and he suggested she try “stretching at home” and asked that she return in one month. She failed to return as requested and never saw Dr. Gertzbein again. After the passage of one year and eight months, Moore saw Dr. Charles Reitman, M.D., in 2006. Dr. Reitman was in the same medical office as Dr. Gertzbein. Moore testified that the lapse in time between doctor visits was because of her inability to pay for them. However, Moore also testified that her health insurance continued to pay for all medical visits. Moore went to Dr. Reitman’s office “looking to settle [the] insurance claim related to the motor vehicle accident.” Dr. Reitman examined Moore and concluded that she had a “normal posture,” that she had “no apparent discomfort,” that she had a “somewhat limited . . . range of motion” in her neck, and that her neurologic examination was “essentially normal.” He noted that an MRI from 2004 revealed a “large disc herniation at C4-5 leading to mild stenosis.” He ordered a new MRI that also revealed a disc bulge at C4-5. He reported that her disc bulge is “degenerative in nature,” but that based upon the timing of her complaints, “[t]he accident likely aggravated her condition causing her ongoing complaints.” Dr. Reitman recommended massage. Moore had the “opinion that Dr. Reitman [did not want] to treat [her]” so she found another doctor, Dr. Richard Westmark, M.D., and saw him for the first time in March 2007. He conducted tests on her and determined that she was “neurologically normal” and that the internal physical exam was “unremarkable.” He did find a 2 millimeter disc bulge at the C4-5 vertebrae. He recommended that she get steroid injections into her cervical spine. She chose not to do this type of treatment. She testified that part of the reason she did not have steroid injections was that she did not “have the money to pay for the injections,” and was “afraid of” injections; but was not afraid of undergoing surgery under general anesthesia. Moore eventually sued State Farm, and in connection with her uninsured motorists benefit claim alleged breach of contract, bad faith, and violations of the Texas Deceptive Trade Practice Act and Insurance Code. The parties agreed to a separation order that abated the extra-contractual claims, stipulating that State Farm was entitled to a $25,007 credit against any damages awarded to Moore. Moore sought $110,000. The case was tried before a jury, which denied any damages for future medical care and for past or future pain, suffering, or impairment. Moore moved for mistrial, the court denied Moore’s mistrial motion, and entered final judgment on the jury verdict, ordering that Moore take nothing from State Farm because the parties stipulated that State Farm was entitled to a $25,007 credit against any damages awarded to Moore in the lawsuit. Factual Sufficiency In her sole issue, Moore challenges the factual sufficiency of the evidence supporting the jury’s finding that she was not entitled to damages for future medical care nor for past or future pain and suffering. Specifically, Moore contends the jury’s verdict is “so against the great weight and preponderance of the evidence as to be manifestly unjust.” A. Standard of Review When a party attacks the factual sufficiency of an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Urista v. Bed, Bath, & Beyond, Inc., 245 S.W.3d 591, 601 (Tex. App.—Houston [1st Dist.] 2007, no pet.). “In reviewing a point of error asserting that a finding is ‘against the great weight and preponderance’ of the evidence, we must consider and weigh all of the evidence which tends to disprove its existence.” Marshall v. Superior Heat Treating Co., 826 S.W.2d 197, 199 (Tex. App.—Fort Worth 1992, no writ) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)). We must set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Urista, 245 S.W.3d at 601. In considering the evidence, we must detail the evidence relevant to the issue and state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict. Id. B. Personal Injury Damages The mere fact of an injury does not prove compensable pain and suffering or impairment. Biggs v. GSC Enter., Inc., 8 S.W.3d 765, 769 (Tex. App.—Fort Worth 1999, no pet.). Rather, the process of awarding damages in a personal injury case for amorphous, discretionary injuries such as pain and suffering is inherently difficult because the alleged injury is a subjective, unliquidated, non-pecuniary loss. Dollison v. Hayes, 79 S.W.3d 246, 249 (Tex. App.—Texarkana 2002, no pet.). Each case must be measured on its own facts and we must give considerable discretion and latitude to the jury. J. Wigglesworth Co. v. Peeples, 985 S.W.2d 659, 665 (Tex. App.—Fort Worth 1999, pet. denied). Matters of past and future physical pain, mental anguish, and physical impairment are particularly within the jury’s province. Marvelli v. Alston, 100 S.W.3d 460, 482 (Tex. App.—Fort Worth 2003, pet. denied). In some cases, injuries are so substantial and the symptoms are so objective that an award for damages for pain and suffering is clearly supported. Dollison, 79 S.W.3d at 249–50. Objectively verifiable injuries include, for example, bone fractures, nerve damage, burns, lacerations, torn muscles, and concussions. Id. at 250 n.1. In these cases, the jury’s failure to award such damages while simultaneously awarding medical expenses would be erroneous. Id. at 250. In other cases, the objective indicia of injury are either less obvious or entirely absent. Id. While the jury may not disregard objective symptoms of an injury, the jury may deny, and is free to disregard, complaints that are purely subjective in nature because they are necessarily speculative and incapable of direct proof. Srite v. Owens-Illinois, Inc., 870 S.W.2d 556, 559 (Tex. App.—Houston [1st Dist.] 1993), rev’d on other grounds, Owens-Illinois, Inc. v. Burt, 897 S.W.2d 765, 769 (Tex. 1995); see Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801, 805 (Tex. App.—Dallas 1988, no writ) (jury finding of no damages for pain and suffering not improper when indicia of injury and damages more subjective than objective). C. Analysis Moore contends the verdict is against the great weight and preponderance of the evidence because the jury found that she sustained a compensable injury and that there was evidence Moore sustained a cervical disc herniation that required a surgery. We conclude the verdict was not against the great weight and preponderance of the evidence. Although Moore presented subjective evidence of neck pain, head pain, aching in her arms, tingling in her fingers, and headaches, there was other evidence in the record that the jury could reasonably have considered to negate Moore’s subjective evidence. For instance, there were no reports of injury at the scene of the accident and an analysis of an x-ray of her spine from that day “demonstrate[ed] an unremarkable appearance.” Medical evidence from three weeks after the accident noted that her “[d]isc spacing is relatively well maintained in the unfused segments,” and that there is “no evidence of swelling or edema.” Although physical therapy was recommended for her by her doctor based upon her complaints of pain, she attended only three physical therapy sessions, “no showed” on the other scheduled sessions, and canceled therapy in August 2004, only two months after the accident. After initially seeing her former surgeon, she stopped seeking any medical attention for one year and eight months, and did not see a doctor again until July 2006, over two years after the accident. Medical records introduced at trial show that she filled prescriptions for 30 types of medicine, including hormones, diet pills, and antibiotics, and show that she filled a prescription for the pain medication Propoxyphene approximately one year before the accident. These same records, however, also show that she did not fill a single pain medication prescription after the 2004 accident. Moore testified, as did two of her treating doctors, Dr. Westmark and Dr. Reitman. Dr. Reitman testified that the medical records showed that there was no pressure on the nerves and that there was no way of telling whether the small disc bulge at C4-5 was causing pain for Moore. He further testified that based on the medical evidence, it was possible the disc bulge at the C4-5 level pre-existed the accident. Dr. Reitman testified that a 1998 report and a 2007 report, which both reported a 2 millimeter disc bulge at the C4-5 vertebrae, were similar in meaning and that they indicated there was degeneration at C4-5 “prior to the accident.” Reitman testified that he would not recommend surgery for the bulge because it was a small degenerative bulge that did not cause any neurological problems. Dr. Westmark testified that the C4-5 disc bulge could have existed before the 2004 accident or that a degenerative process could have caused the abnormality. He noted that Moore had a bulge at the C4-5 vertebrae before the 1999 surgery and noted that there was no objectively verifiable evidence that the bulge at C4-5 began causing pain only after the 2004 accident, or that it was causing pain at all outside of Moore’s subjective complaints. Taking into consideration the entire record, we hold that the finding of zero damages for pain and suffering and future medical costs is not so against the great weight and preponderance of the evidence as to be manifestly unjust. See Biggs, 8 S.W.3d at 769 (Tex. App.—Fort Worth 1999, no pet.) (holding that based on inconclusive evidence about cause of appellant’s herniated disc, and evidence regarding back pain and impairment based only upon conflicting self-reports, it was within province of jury to resolve that conflict, conclude that appellant’s back pain and impairment were caused by earlier injury or long term back problems, and conclude that any pain or impairment resulting from accident was too minimal to warrant monetary award). Conclusion We affirm the judgment of the trial court. Elsa Alcala Justice Panel consists of Justices Jennings, Alcala, and Massengale.