Daniel Gerald Allen v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-01-00145-CR ______________________________ DANIEL GERALD ALLEN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 6th Judicial District Court Lamar County, Texas Trial Court No. 18122 Before Cornelius, C.J., Grant and Ross, JJ. Opinion by Justice Ross O P I N I O N Daniel Allen has filed a motion asking this Court to dismiss his appeal. Pursuant to Tex. R. App. P. 42.2, the motion is granted. The appeal is dismissed. Donald R. Ross Justice Date Submitted: February 5, 2002 Date Decided: February 5, 2002 Do Not Publish ; Downtown Plaza Imaging Center $ 5,268.00 \ ' var WPFootnote2 = ' We also note, as pointed out by counsel, that Yusuf had referred in his records to his\ prognosis for her "concussion," and that there was no other suggestion anywhere in the record that\ Orozco had suffered a concussion. \ ' function WPShow( WPid, WPtext ) { if( bInlineFloats ) eval( "document.all." + WPid + ".style.visibility = 'visible'" ); else { if( floatwnd == 0 || floatwnd.closed ) floatwnd = window.open( "", "comment", "toolbars=0,width=600,height=200,resizable=1,scrollbars=1,dependent=1" ); floatwnd.document.open( "text/html", "replace" ); floatwnd.document.write( " \r\n" ); floatwnd.document.write( "\r\n" ); floatwnd.document.write( " \r\n" ); floatwnd.document.write( WPtext ); floatwnd.document.write( ' Close'); floatwnd.document.write( " " ); floatwnd.document.close(); floatwnd.focus(); } } function WPHide( WPid ) { if( bInlineFloats ) eval( "document.all." + WPid + ".style.visibility = 'hidden'" ); } In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-05-00019-CV ______________________________ CLARA OROZCO, Appellant V. NORMAN P. HOWARD, Appellee On Appeal from the 157th Judicial District Court Harris County, Texas Trial Court No. 2001-48882 Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION Clara Orozco convinced a jury that she deserved to recover for injuries sustained in an automobile accident with Norman P. Howard, but failed to convince the jury to award her the amount of damages she sought. In fact, the jury did not award enough damages to cover Orozco's medical bills, and also gave her only a small portion of what she believed she deserved for pain and suffering. Thus, Orozco appeals. At trial, Orozco presented evidence of doctors' bills (all unpaid) totaling approximately $43,000.00. Counsel has directed us to no specific evidence about Orozco's preinjury income, but only to evidence that she could only work part time for a period of time. She testified about the pain she attributed to the accident and about her inability to do things as easily as she had previously. There was also testimony about the cost of possible spinal surgery to be provided by another doctor. The jury awarded Orozco medical expenses of $2,470.00, lost earnings of $1,760.00, and physical pain and mental anguish of $5,000.00. The jury made no award for any future damages. Orozco argues that we should reverse because such a low award is against the great weight and preponderance of the evidence. We disagree and affirm the judgment. When a party attacks the factual sufficiency of an adverse finding on an issue on which he or she has the burden of proof, the party must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). We are required to consider and weigh all of the evidence, and we can 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. Francis, 46 S.W.3d at 242; see Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). In doing so, 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." Pool, 715 S.W.2d at 635; In re Estate of Steed, 152 S.W.3d 797, 806 (Tex. App.—Texarkana 2004, no pet.). The evidence presented to the jury shows that Orozco's pickup truck was broadsided by Howard's pickup truck when Howard ran a red light. Orozco told Emergency Medical Services personnel that she was okay, but she was taken to the emergency room. X-rays showed that Orozco had no fractures, but instead had degenerative joint disease, bone spurs, and a long-healed fracture of the spine. She was diagnosed as having a cervical strain and a bruised shoulder. She complained about pain in her left shoulder and neck, and was released after being given muscle relaxers and anti-inflammatories. A week later, she went to see Dr. John Bergeron. For a month, she went to physical therapy at Bergeron's direction, but then stopped. Two months later, at the suggestion of her new attorney, she went to see Dr. Qaiser Yusuf, who treated her for six months, at considerable cost. Orozco testified that the therapy did not help, but the records from the rehabilitation center indicate the contrary. After Orozco's last visit with Yusuf in May 2001, Orozco's attorney referred her to another doctor, at the Texas Medical Rehabilitation and Pain Center, who gave her pain medication and told her to return the following week. She next appeared October 4, 2001, at an imaging center, apparently acting on orders of Yusuf, and with payment guaranteed from the proceeds of any insurance settlement. She next appeared eight months later at the Texas Rehabilitation and Pain Center June 25, 2002, but nothing transpired as a result of that visit, and it does not appear that the suggested treatment occurred. Finally, she saw Dr. Jeffrey Reuben November 21, 2002, but he delayed acting until she had given birth. She sought no further medical treatment. Orozco testified that she had missed time from work, did not know how much, but believed about four months. The various doctors' notes are somewhat inconsistent. Dr. Bergeron's records show that Orozco was allowed to work four hours a day beginning August 14, 2000, but another record shows that she was allowed to resume a four hour per day schedule August 28, 2000. Dr. Yusuf prepared a form directing that Orozco be off work for one month. The record shows, however, that Yusef prepared that form six weeks after Orozco had returned to work. Counsel has not directed us to any part of the record reflecting Orozco's earning capacity. Orozco focuses her argument solely on the differential between the medical bills presented and the amount awarded for those charges. We have addressed this issue before. In Hilland v. Arnold, 856 S.W.2d 240, 242 (Tex. App.—Texarkana 1993, no writ), we addressed a very similar situation—where "reasonable and necessary medical expenses" were proven by affidavit by a plaintiff injured in an automobile accident, but the causation link between the accident and the expenses was not established conclusively. The jury in that case, as in this one, awarded a small percentage of the amount claimed. As we recognized there, an uncontroverted affidavit is sufficient to support a finding that the amount charged was reasonable and necessary to treat the patient. That is not equivalent to stating that such an affidavit is conclusive, or that it requires that award as a matter of law. And such proof does not necessarily establish causation. As in Hilland, here the record contains evidence of pre-existing medical conditions and other possible causes for the medical complaints of the plaintiff other than the complained-of accident, which evidence tends to undermine causation and provides an additional basis for the jury to significantly reduce the damages below the amount of the medical expenses Orozco introduced into evidence. A jury may disbelieve that medical care is reasonable or necessary, even though a doctor testifying as an expert may say that it is. See Gregory v. Tex. Employers Ins. Ass'n, 530 S.W.2d 105, 107 (Tex. 1975); Exxon Corp. v. West, 543 S.W.2d 667, 672 (Tex. Civ. App.—Houston [1st Dist.] 1976, writ ref'd n.r.e). Even when the subject matter of the expert's testimony is such that the trier of fact must be guided solely by the opinion of experts, the opinions given by the expert witnesses may be regarded as conclusive only if they are otherwise credible and free from contradiction and inconsistency. Gabriel v. Lovewell, 164 S.W.3d 835, 847 (Tex. App.—Texarkana 2005, no pet.). Further, the jury in this case was entitled to believe, based on the sequence of events set out above, that Orozco's medical expenses were not the result of the accident, but some other cause; were, in whole or in part, fabricated; or were inflated by the medical community overworking the case in expectation of payment from automobile insurance. Under these circumstances, even though the record contains medical bills totaling over $40,000.00, we cannot agree that the jury was without the authority to determine the amount attributable to the accident at bar was a far lesser amount than that claimed. It is the jury's province to examine the evidence and to observe the witnesses, and we cannot say that its conclusion in this case is so far against the great weight and preponderance of the evidence as to justify reversal. In a single sentence near the end of her brief, Orozco complains because the pain and suffering award was only $5,000.00. In cases where a jury found that objective physical damage had occurred, it has been held that some amount of recovery for the associated pain and suffering should be provided by the jury, and its failure to do so has been described as contrary to the great weight and preponderance of the evidence. Horn v. State Farm Ins. Co., 567 S.W.2d 266 (Tex. Civ. App.—Tyler 1978, no writ); Morgan v. Mustard, 480 S.W.2d 416 (Tex. Civ. App.—El Paso 1972, no writ); Clark v. Brewer, 471 S.W.2d 639 (Tex. Civ. App.—Corpus Christi 1971, no writ). However, if a jury does not believe that a plaintiff were in as much pain as he or she claims to be or that such pain as existed was attributable solely to natural deterioration, it may provide damages accordingly. Converting physical pain and mental anguish into monetary amounts is not an exact process. Because personal injury damages are unliquidated and are not capable of measurement by any certain standard, the jury has large discretion in fixing the amount of the award. Phillips Petroleum Co. v. Burkett, 337 S.W.2d 856 (Tex. Civ. App.—Fort Worth 1960, writ ref'd n.r.e.). The measure of damages is a matter of opinion of the fact-finder, and courts in most instances have been reluctant to disturb the findings of a trial court or jury on such matters when there is any evidence to support those findings. George C. Vaughan & Sons v. Dyess, 323 S.W.2d 261 (Tex. Civ. App.—Texarkana 1959, writ dism'd). Similarly, in this case, we will not disturb the fact-finder's determination. In only two sentences in the last paragraph of her brief, Orozco also states that the zero damage awards for future pain and mental anguish and for future medical expenses were erroneous. For the same reasons as stated above, we likewise recognize that the jury had the ability to disbelieve the testimony about the existence of future pain and mental anguish connected with this accident, and disbelieve that any future medical expenses resulting from this accident would occur. The contentions of error are overruled. We affirm the judgment. Josh R. Morriss, III Chief Justice Date Submitted: September 12, 2005 Date Decided: September 29, 2005