Weeks Marine, Inc. v. Enrique Jose Vela

MEMORANDUM OPINION No. 04-05-00902-CV WEEKS MARINE, INC., Appellant v. Enrique Jose VELA, Appellee From the 381st Judicial District Court, Starr County, Texas Trial Court No. DC-03-221 Honorable John A. Pope, III, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Alma L. López, Chief Justice Catherine Stone, Justice Karen Angelini, Justice Delivered and Filed: May 9, 2007 AFFIRMED Weeks Marine appeals the trial court's judgment awarding damages to Enrique Jose Vela for injuries he sustained in the course and scope of his employment. On appeal, Weeks Marine brings four issues: (1) the trial court should have granted its motion for mistrial because plaintiff's counsel made a racially prejudicial statement before the jury; (2) the trial court should have granted its motion for mistrial because of juror misconduct; (3) there was legally and factually insufficient evidence to support the jury's award of future pain and suffering; and (4) because the jury's answers to certain questions were inconsistent and conflicting, they must be disregarded. We affirm the judgment of the trial court. Background On June 1, 2003, Enrique Jose Vela was an employee of Weeks Marine, working as a mate on a booster barge in the Houston Ship Channel. Vela had climbed down inside a pump to clean out debris when the oiler aboard Weeks Marine's barge started its engine, causing pressured water to flow into and through the pump. This pressured water, in turn, caused Vela to be blown out of the pump into the air. As a result of the fall, Vela injured his shoulder and back, and was taken to shore for emergency medical care. At the emergency room, Vela complained of severe pain in his lower back and tingling in his right thigh. After receiving an injection for his pain, he left the hospital at 3:00 a.m. on June 2, 2003. Later that same day, he visited a doctor referred to him by Weeks Marine, Dr. Medhat Bedros, who told him he should be off work until June 9th, the day of his next appointment. On June 3, 2004, Vela visited another doctor referred by Weeks Marine, Dr. David G. Vanderweide. Dr. Vanderweide's nurse told Vela that pursuant to the doctor's instruction, he could not return to work. The Weeks Marine employee who had accompanied Vela then asked about light duty work. The nurse reiterated the doctor's instruction. The Weeks Marine employee responded that light duty work was the equivalent of not working. The nurse replied, "Do whatever you want to do." According to Vela, "That's the last word I heard, and I got out." Vela returned to the barge and left with permission on June 4, 2003. On June 12, 2003, Vela was scheduled to work, but he did not return to the barge, believing that he was off work pursuant to doctor's orders. On June 13, 2003, Weeks Marine fired Vela, citing as a reason that he had been put on light duty and had not returned to his regular schedule. On June 23, 2003, Vela sued Weeks Marine and asserted Jones Act, unseaworthiness, and maintenance and cure claims. Two years later, on June 23, 2005, the case went to trial. After hearing the evidence, the jury found that Weeks Marine owed Vela maintenance and cure. It found that Vela had not reached maximum cure and that Vela will reach maximum cure on December 14, 2005. It found that Weeks Marine owed Vela $350,000 in cure. It also found the following compensatory damages: $250,000 for past physical pain and suffering; $1,500,000 for future pain and suffering; $65,000 for income lost in the past; $550,000 for impairment of earning capacity or ability in the future; $126,000 for past medical expenses; and $157,000 for future medical expenses. Jury Argument According to Weeks Marine, the trial court should have granted its motion for mistrial after Vela's "counsel made an unprovoked, unsupported, and racially prejudicial statement before the jury accusing [Weeks Marine]'s representative of telling [Vela] that he should apply for food stamps." Weeks Marine argues that Vela's counsel made a "derogatory appeal to racial prejudice during his examination of [its] corporate representative" that had "no basis in the record, was not supported by fact, and was absolutely negated by" Vela's own testimony. While questioning Teresa Olivo, Weeks Marine's corporate representative and claims manager, Vela's counsel asked whether Olivo had spoken with Tom Langan, Weeks Marine's risk manager, about his conversation with Vela. After Olivo confirmed that she had spoken with Langan about his conversations with Vela, Vela's attorney then asked the following: Q: Did he ever tell you of the conversation that he had with Mr. Vela where he told Mr. Vela that he could go get on food stamps? A: No. Q: Did he ever tell you about the conversation that he had with Mr. Vela where he said he wasn't going to pay Mr. Vela for his time off? [Defense]: I object. May we approach the bench? The jury was then excused, and the trial court asked the parties to look over the depositions and see "if [plaintiff's counsel] reference concerning this examination on deposition of Mr. Vela is correct." After a break, defense counsel informed the court that he had "looked through the deposition testimony, and it didn't take place." Defense counsel then moved for a mistrial, arguing that the question was improper and meant to inflame the jury. The trial court denied the motion, but warned plaintiff's counsel to only ask questions supported by evidence: Do y'all have anything indicating that Mr. Langan or anybody with Weeks Marine told him to go on welfare or to eat air or something like that? That they did it? If they didn't - y'all are playing games with me, gentlemen. . . . I'm telling you now to stop it. I might declare a mistrial later on down the road, and I might sanction y'all for money. I don't know what I'm going to do. We're going to stop this right now. When the jury came back in, the trial court instructed the following: Let me preface what I'm going to tell you in a few minutes. Sometimes in the heat of argument in the presentation - you remember, I keep - I've told you once or twice or three times, you can't take what the lawyers say as facts, okay? And not to consider that. And, later on down, when the charge is submitted to you, if we get that far, I'll have - I'll have something to tell you about that you can't consider your - in this matter, you can't consider sympathy or bias or anything that will affect your - not - make your brain work, not your heart. But I - I think I have to say something. There was a reference made to a Mr. Langan that he might have told Mr. Vela to go [get] food stamps. I think I have to correct - and during the dinner hour, I asked the lawyers to go back on the depositions and find something that has any basis for it because that can cause some irritation. Okay. Fortunately, unfortunately, whatever it is, there was none, no statement from anybody from Weeks Marine [who] had made that statement nor is there any evidence in this case about that. Okay. So, I'm instructing you at this time, do not consider any part of that in your decision-making. It's not there. It hadn't been shown and, more than likely, will not be shown because there's - in the depositions, discovery matters were brought out, there is nothing in there. So you can't consider that. Please. Please. Please forget about that. And, I'm ordering you to do that because it's not there. On appeal, Weeks Marine argues that the question by plaintiff's counsel was improper jury argument. Generally, to obtain reversal on the basis of improper jury argument, an appellant must prove "(1) an error (2) that was not invited or provoked, (3) that was preserved by the proper trial predicate, such as an objection, a motion to instruct, or a motion for mistrial, and (4) was not curable by an instruction, a prompt withdrawal of the statement, or a reprimand by the judge." Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex. 1979). And, the appellant must also prove "that the argument by its nature, degree and extent constituted reversibly harmful error," and "that the probability that the improper argument caused harm is greater than the probability that the verdict was grounded on the proper proceedings and evidence." Id. at 839-40. Weeks Marine urges that the statement made by appellant's counsel was incurable because it was a racially prejudicial question meant to inflame the jury. We disagree. A question referencing food stamps is not inherently a racially prejudicial statement. We do, however, agree that the question was not proper in that there was nothing in the record to support the question. However, the trial court's instruction cured the error. We, therefore, overrule appellant's first issue. Jury Misconduct In its second issue, Weeks Marine argues that the trial court should have granted its motion for mistrial after Vela "engaged in jury misconduct by improperly speaking to a prospective juror during voir dire about his injuries." We disagree that the trial court erred in failing to grant a mistrial. At trial, after voir dire had been completed, the venire panel was given a break so that the lawyers could make their peremptory challenges. During that break, a venire panel member, Juror No. 17, was seen speaking to Vela. After the break, the defense brought the matter to the attention of the trial court. Because neither party had used their peremptory challenges to strike her, Juror No. 17 was to be a member of the jury. Thus, she was brought into the courtroom to answer questions about her encounter with Vela: Q: [A] few minutes ago, you were seen talking to Mr. Vela? A: Yes. Q: What did you talk about? A: About my injury. Q: Did you ask him about his? A: No, only mine. Yeah, more or less. Court: You can't talk to these people . . . that shows bias. Are you telling me that that's all you talked about? A: Yes. You can ask him. Court: No, I'm not going to ask him. Wait outside, ma'am. The trial court then released Juror No. 17, but the defense moved for a mistrial, arguing that there had been juror misconduct that had tainted the jury. The trial court denied the motion, but allowed the defense to call more witnesses to testify about the encounter. Thus, an employee of one of the defense lawyers testified that she had seen Vela and Juror No. 17 talking "like they knew each other." When asked if there was anybody else involved, the witness replied that they were "the only two [who] were in that area." According to the witness, the conversation between Vela and Juror No. 17 lasted "maybe a minute." At that point, Vela, himself, interrupted the proceedings: "She asked me if it hurt, if my back hurt and I said, 'Yes' . . . . She asked me if it hurt, and I said yes. She said, 'I can see it in your face.'" Another witness, one of the defendant's lawyers, also testified. According to the witness, she had seen one of the venire members, who was picked as an alternate, standing about four yards from Vela and Juror No. 17. The trial court then brought the venire panel back into the courtroom and swore in the jury. It then instructed the jury not to talk to the parties: A few minutes ago, we had a problem that ties in exactly with the situation that you cannot talk to anybody about the case or permit anybody to discuss it with you at any time. As a result of this conversation that took place, as innocent as it was, [Juror No. 17], I cannot keep you here. I'm going to have to discharge you, okay, because you should not have talked to the plaintiff. What you talked about, you've already told me, but I can't keep you here. It looks bad. Okay? So, I'm discharging you, ma'am. You can leave now. Okay. One of the alternates (but not the one who was seen near Vela and Juror No. 17) then took Juror No. 17's place on the jury. The trial court then asked if any of the members of the jury had seen Juror No. 17 talking to Vela. The other alternate (the one who had been seen near Vela and Juror No. 17) replied that he had. However, when asked if he had heard any part of the conversation, he replied that he had not. We review a trial court's denial of a motion for mistrial for abuse of discretion. Lopez v. La Madeleine of Tex., Inc., 200 S.W.3d 854, 860 (Tex. App.--Dallas 2006, no pet.); Till v. Thomas, 10 S.W.3d 730, 734 (Tex. App.--Houston [1st Dist.] 1999, no pet.). To warrant a new trial for jury misconduct, the movant must establish (1) that the misconduct occurred, (2) it was material, and (3) probably caused injury. Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 372 (Tex. 2000). Whether misconduct occurred and caused injury is a question of fact for the trial court. Id. Here, despite the fact that Juror No. 17 was excused from the jury immediately after the jury was sworn in, and despite the fact that the alternate (who saw but did not hear the conversation between Vela and Juror No. 17) was never a member of the jury and did not engage in jury deliberations, Weeks Marine argues that Juror No. 17's misconduct probably caused injury: The fact is--[the misconduct] happened, the jury was told about it, all on the jury now knew it happened, and all on the jury were left with the impression that it was okay. It was not. The probable harm is real; it affects the importance the jury gives to its duty to listen to the evidence, to deliberate, and to render a true verdict. Under the circumstances, a mistrial should have been granted. We disagree and find no abuse of discretion by the trial court. Juror No. 17 was excused before the trial in chief began. The alternate who saw Juror No. 17 and Vela talking never became a member of the jury. And, although Weeks Marine argues that the jury was left with the impression that "it was okay," in fact, the trial court instructed the jury that such conduct was not okay. It repeated its instruction to the jury not to discuss any matters with the parties and informed it that Juror No. 17 had to be dismissed from service because of her conversation with Vela. We, therefore, overrule this issue. Sufficiency A. Preservation of Error According to Weeks Marine, there is legally and factually insufficient evidence to support the jury's award of $1,500,000 for future pain and suffering. In response, Vela argues that Weeks Marine failed to preserve this issue for appeal because it did not timely pay the filing fee for its motion for new trial. A motion for new trial is a prerequisite to the following issues on appeal: (1) factual sufficiency of the evidence to support a jury finding; and (2) adequacy or excessiveness of the damages found by the jury. Tex. R. Civ. P. 324(b); see Weeks Marine, Inc. v. Salinas, No. 04-05-00577-CV, 2007 WL 390307, at *2 (Tex. App.--San Antonio Feb. 7, 2007, pet. filed). However, as explained by the Texas Supreme Court in Garza v. Garcia, 137 S.W.3d 36, 38 (Tex. 2004), when a party timely files a motion for new trial but fails to pay the applicable filing fee, the trial court is not required to consider the motion. As such, under those circumstances, any complaint made in the motion for new trial has not been properly made to the trial court and does not preserve anything for appellate review. Garza, 137 S.W.3d at 38; Weeks Marine, 2007 WL 390307, at *2. Here, Weeks Marine timely filed a motion for new trial, and the trial court held a hearing within its plenary power on the motion. However, the trial court never ruled on the motion, and the motion was overruled by operation of law. And, although Weeks Marine timely filed the motion, it did not pay the filing fee until after the trial court lost plenary power. This court recently considered these same facts in Weeks Marine, Inc. v. Salinas, No. 04-05-00577-CV, 2007 WL 390307, at *2 (Tex. App.--San Antonio Feb. 7, 2007, pet. filed), and explained that these facts were distinguishable from those presented to the supreme court in Garza. Thus, we noted that the issue "becomes whether the trial court's act in holding the hearing on the motion resulted in error being preserved despite: (1) the failure to pay the filing fee while the trial court had plenary jurisdiction; and (2) the fact that the motion was overruled by operation of law." Id. We, however, declined to reach the merits of the issue and instead assumed for purposes of the appeal that the motion for new trial was sufficient to preserve error. Id. Similarly, here, for purposes of this appeal, we assume, without deciding, that the motion for new trial was sufficient to preserve error as to the issues properly presented in the motion. B. Standard of Review Pursuant to the Jones Act, an injured maritime worker may sue its employer for negligence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 405-06 (Tex. 1998). When a state court hears an admiralty case, that court occupies essentially the same position occupied by a federal court sitting in diversity: the state court must apply substantive federal maritime law but follow state procedure. Ellis, 971 S.W.2d at 406; Weeks Marine, 2007 WL 390307, at *2. And, under the Federal Employers' Liability Act (FELA), a related statute, the causation burden is not the common law proximate cause standard. Ellis, 971 S.W.2d at 406; Weeks Marine, 2007 WL 390307, at *2. Rather, the causation burden is "whether the proof justifies with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury for which the claimant seeks damages." Ellis, 971 S.W.2d at 406; Weeks Marine, 2007 WL 390307, at *2. This burden has been termed "featherweight." Ellis, 971 S.W.2d at 406; Weeks Marine, 2007 WL 390307, at *2. And, because the Jones Act expressly incorporates FELA and the case law developing that statute, the causation standard under the Jones Act is the same as that under FELA. Ellis, 971 S.W.2d at 406; Weeks Marine, 2007 WL 390307, at *2. Texas courts of appeal have the power to review excessiveness of damages and to order remittitur in FELA actions and, by implication, in Jones Act cases as well. Ellis, 971 S.W.2d at 406; Weeks Marine, 2007 WL 390307, at *3. The standard of review for an excessive damages complaint is factual sufficiency of the evidence. Ellis, 971 S.W.2d at 406; Weeks Marine, 2007 WL 390307, at *3. When considering a factual sufficiency challenge to the jury's verdict, we must consider and weigh all the evidence, not just the evidence that supports the verdict. Ellis, 971 S.W.2d at 406-07; Weeks Marine, 2007 WL 390307, at *3. We can set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Ellis, 971 S.W.2d at 407; Weeks Marine, 2007 WL 390307, at *3. We are not a fact finder and, as such, may not pass upon the witnesses' credibility or substitute our judgment for that of the jury, even if the evidence would clearly support a different result. Ellis, 971 S.W.2d at 407; Weeks Marine, 2007 WL 390307, at *3. C. Analysis The jury awarded Vela $1,500,000 for "future pain and suffering including physical disability, impairment, and inconvenience, and the effect of [Vela]'s injuries and inconvenience on the normal pursuits and pleasures of life." In its brief, Weeks Marine argues that this finding by the jury is supported by legally and factually insufficient evidence because it is inconsistent with the evidence. Weeks Marine emphasizes that Vela testified that before his back surgery, his back pain was severe, his shoulder pain was also bad, and he was unable to move his fingers. However, after his surgery, Vela testified that his pain and symptoms improved. Thus, despite Vela testifying that his pain improved, the jury awarded more for future pain and suffering than for past pain and suffering ($250,000 versus $1,500,000). According to Weeks Marine, "[t]he result is inconsistent and not in conformity with the evidence in this case." Week Marine, however, fails to point to the actual evidence that makes this finding inconsistent. See Tex. R. App. P. 38.1(h). In reviewing the appellate record, we find that the evidence was sufficient. After the accident, Vela underwent a laminectomy and two-level fusion of his back. Vela testified that after his surgery he experienced less pain than before the surgery, but that he still had pain every day in his lower back and right leg. Vela's treating neurosurgeon testified that surgery could not be expected to heal all of Vela's pain and that he would have some residual pain and problems with his back for the rest of his life. According to the surgeon, "when you undergo this kind of operation, there's always continued back pain or trouble. And there's going to be need for medical care for that purpose." Vela also had surgery on his shoulder. With regard to his shoulder, like his back surgery, before the surgery he had pain all the way from his shoulder to his fingers and could not even move his fingers; after the surgery he is able to move his arm "a little bit better." And, according to Vela, if he lifts his arm too high, it still hurts. With regard to physical disability and impairment, Vela's neurosurgeon testified that he had placed long-term restrictions on Vela because of the injury to his back. Vela cannot lift or carry more than twenty pounds on a repetitive basis. He cannot bend, stoop, climb, twist, or perform any activities that put strain or stress on his back. And, he cannot stand or sit for long periods of time. Similarly, with respect to Vela's shoulder, Vela's treating orthopedic surgeon placed permanent restrictions on him. He cannot work above the shoulder level because doing so "will be painful" and could tear his rotator cuff again. He cannot lift more than thirty-five to forty pounds on a repetitive basis or sixty pounds on an occasional basis. With respect to inconvenience on the normal pursuits and pleasures of life, Vela testified that he cannot play soccer, his favorite sport, anymore. Without pain medication, he cannot sit for long without pain; however, when he takes pain medication he has difficulty staying awake. He can no longer drive long distances and described his limit as the distance from Rio Grande City, Texas, to McAllen, Texas. And, Vela emphasized that he loved his work, but can no longer perform his job. Indeed, Vela's physicians testified that he could not return to work as a mate. In reviewing the record, the evidence is sufficient to support the jury's finding. Further, although Weeks Marine argues that the jury's findings as to past and future pain and suffering were inconsistent, we disagree. The evidence showed that Vela will experience pain for the rest of his life. Thus, even though Vela testified that his pain had improved since the surgery, it was reasonable for the jury to find a larger amount for future damages as it was considering pain and suffering for the rest of his life. See Southwest Tex. Coors, Inc. v. Morales, 948 S.W.2d 948, 951-52 (Tex. App.--San Antonio 1997, no writ) ("Matters of pain and suffering, which are necessarily speculative and not subject to precise mathematical calculation, are particularly within the province of the jury to resolve and to determine appropriate amounts."). Inconsistent Findings In its final issue, Weeks Marine argues that the jury's findings for past and future medical expenses are inconsistent with its finding of cure. (1) As such, it argues that the jury's findings must be disregarded. Weeks Marine, however, has failed to preserve this issue for appeal. In order to preserve error, an appellant must object to the conflict or inconsistency before the jury is discharged. Kennedy Ship & Repair, L.P. v. Pham, 210 S.W.3d 11, 24 (Tex. App.--Houston [14th Dist.] 2006, no pet.); Roberson v. Collins, No. 01-05-00471-CV, 2006 WL 2192779, at *2 (Tex. App.--Houston [1st Dist.] 2006, no pet.); Norwest Mortgage, Inc. v. Salinas, 999 S.W.2d 846, 865 (Tex. App.--Corpus Christi 1999, writ denied); Torres v. Caterpillar, Inc., 928 S.W.2d 233, 245 (Tex. App.--San Antonio 1996, writ denied). Thus, by not making such an objection before the jury was discharged, Weeks Marine waived this issue on appeal. Moreover, we note that although Weeks Marine argues that Vela had a double recovery (medical expenses and cure), in fact, Vela elected his remedy. As such, the trial court's judgment awards Vela only for his medical expenses and does not award him damages for cure. Conclusion The trial court did not err in denying Weeks Marine's motion for mistrial based on improper jury argument. Nor did it err in denying Weeks Marine's motion for mistrial based on juror misconduct. There was sufficient evidence to support the jury's finding for future pain and suffering. And, finally, Weeks Marine has failed to preserve error with respect to any inconsistent jury findings. Therefore, we affirm the judgment of the trial court. Karen Angelini, Justice 1. The jury was instructed that the "cure" to which a seaman may be entitled includes the cost of medical attention, including the services of physicians and nurses as well as the cost of hospitalization, medicines, and medical apparatus.