Opinion
No. 04-04-00747-CV
Delivered and Filed: August 24, 2005.
Appeal from the 131st Judicial Court, Bexar County, Texas, Trial Court No. 2002-CI-16203, Honorable John Gabriel, Judge Presiding.
Affirmed in Part; Reversed and Rendered in Part.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Bill Miller Bar-B-Q Enterprises, Ltd. appeals a judgment rendered against it after a patron, Rose Gonzales, sustained physical injuries during a fall at one of its restaurants. Bill Miller challenges the legal and factual sufficiency of the evidence to support several of the jury's damage awards. Because we believe the evidence is legally insufficient to support $1,667 of the $9,000 found by the jury to have been the amount Rose Gonzales incurred for past medical care and $26,000 of the $50,000 found by the jury to be the amount Gonzales will incur for future medical care, we reverse the trial court's judgment insofar as it awards $1,667 for past medical expenses and $26,000 for future medical expenses and render judgment that Gonzales take-nothing for these amounts. We affirm the trial court's judgment in all other respects.
Background
Rose Marie Gonzales sued Bill Miller Bar-B-Q Enterprises, Ltd. for the injuries she sustained to her back when she fell off a defective toilet seat inside a Bill Miller restaurant. Following a jury trial, Gonzales recovered $105,277.41 in damages. The jury awarded Gonzales: (1) $9,000 for her past medical expenses; (2) $50,000 for her future medical expenses; (3) $2,000 for her past physical pain and mental anguish; (4) $18,000 for her future physical pain and mental anguish; (5) $2,000 for her past physical impairment; (6) $2,500 for her past lost earning capacity; and (7) $2,500 for her future lost earning capacity. This appeal followed.
Sufficiency of the Evidence
On appeal, Bill Miller contends that the evidence adduced at trial is legally and factually insufficient to support the jury's award of past and future medical expenses and past and future lost earning capacity. In conducting a legal sufficiency review, we review the evidence in a light that tends to support the finding of the disputed facts and disregard all evidence and inferences to the contrary. Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). If more than a scintilla of evidence exists, it is legally sufficient. Id. More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact's existence. Id.
Bill Miller does not contest the jury's award of past and future physical pain and mental anguish damages or past physical impairment damages.
In considering a factual sufficiency challenge, we assess all the evidence, and we reverse the trial court's judgment only if the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Under this analysis, we do not serve as a fact finder, pass upon the credibility of witnesses, or substitute our judgment for that of the trier of fact, even if there is conflicting evidence upon which a different conclusion could be supported. Wal-Mart Stores, Inc. v. Garcia, 30 S.W.3d 19, 21 (Tex.App.-San Antonio 2000, no pet.).
Past Medical Expenses
Bill Miller argues that the $9,000 jury award for past medical expenses is not supported by the evidence. In order to recover for past medical expenses, a plaintiff must offer evidence of the actual amount expended. Rivas v. Garibay, 974 S.W.2d 93, 95-96 (Tex.App.-San Antonio 1998, pet. denied).
At trial, Gonzales produced an exhibit that totaled her costs for past medical treatment. The exhibit showed her past medical costs totaled $7,333, not $9,000. Gonzales nevertheless claims the jury's damage award is supported by the record because the jury heard evidence that she incurred other medical costs that were not included in the exhibit. For example, Gonzales claims the exhibit does not include the cost of several medications she had to purchase or the cost for treatment she received from her most recent physician, Dr. Baylan.
Absent from the record, however, is any evidence pertaining to the dollar amounts charged by Dr. Baylan or the costs for any of the medications Gonzales allegedly purchased. Without such evidence, the evidence is legally sufficient to support an award of only $7,333 in damages for past medical expenses. Accordingly, we sustain Bill Miller's first issue.
Future Medical Expenses
Bill Miller also complains that the $50,000 jury award for future medical expenses is not supported by the evidence. "Texas follows the `reasonable probability rule' for future damages arising from personal injuries." Wal-Mart Stores, Inc., 30 S.W.3d at 24. As a result, an award of future medical expenses is a matter primarily for the trier of fact to determine. City of San Antonio v. Vela, 762 S.W.2d 314, 321 (Tex.App.-San Antonio 1988, writ denied). No precise evidence is required; the trier of fact may base its award on the nature of the injury, the medical care rendered before trial, and the condition of the injured party at the time of trial. Id. Testimony of a "reasonable medical probability" by a medical expert is not a requisite to recovery for future medical expenses. Id.
Gonzales's physician, Dr. Mario Bustamante, testified that Gonzales presented to him with complaints of low back pain radiating down her left leg. Her symptoms were consistent with her diagnosis of a herniated lumbar disk with a small fragment extrusion. Dr. Bustamante treated her conservatively with a series of three epidural steroid injections, which improved Gonzales's condition but did not eliminate her pain. He indicated that when he last saw Gonzales she had continuing back pain and slightly improved leg pain. When asked about Gonzales's long-term prognosis, Dr. Bustamante stated that her condition "will require fairly close follow-up and the treatment will be based on the patient's symptomatology." Absent a worsening condition, such as paralysis or loss of muscle control, surgery would not be recommended. Additionally, pain without neurological deficit would be treated conservatively, such as with epidural steroid injections. He stated that a physician could administer a three-shot series of injections as often as every year to alleviate an individual's pain. According to Dr. Bustamante, these epidural injections cost up to $2,000 per shot.
At oral argument, Gonzales argued that the record contains evidence that Dr. Bustamante planned to give her a three-shot series of injections every four months. No such evidence appears in the appellate record.
Bill Miller makes much of the fact that often during his testimony Dr. Bustamante spoke of what "the patient" will need, without specifically stating that his recommendation was specific to Gonzales. We do not deem this fatal to Gonzales's case. A fair reading of the doctor's testimony indicates that he engaged in conservative treatment of Gonzales, she had some improvement in her condition following the steroid injections, she was to be "protected" in her job duties by having lifting restrictions imposed, and based on her condition when he last saw her, she was a candidate for ongoing conservative treatment rather than surgery. While he may have spoken in general terms about "the patient's" needs, the record supports a conclusion that he believed conservative treatment was appropriate for Gonzales. He further stated that a patient with Gonzales's condition would need to be symptom free for at least three to four years before he would end the conservative treatment and release the patient. Dr. Bustamante's testimony presented more than a scintilla of evidence from which the jury could reasonably conclude that future medical treatment was necessary.
The jury could also consider Gonzales's testimony in determining the need for future medical treatment. Gonzales testified as to her present condition and slow recovery. She stated that she was in "a lot of pain" over the past two years and continues to experience pain in her back. Gonzales stated that she is still not able to bend down or perform various physical activities due to her injuries. Gonzales also testified that the epidural injections she received from Dr. Bustamante alleviated her back pain by about 60 percent. She further stated that although these epidural injections afforded her pain relief, she had to discontinue the injections because she could not afford Dr. Bustamante's fees.
The jury was free to consider the nature and extent of Gonzales's injuries, her progress toward recovery under the treatment she received, her previous medical expenses of $7,330, and her current debilitated physical condition, and estimate the necessity for medical treatment in the future as well as the reasonable cash value of such treatment. See id. Based on the testimony presented, specifically including the testimony about future epidural injections and the testimony about anticipated conservative treatment for up to four years, we conclude the evidence is legally sufficient to support an award of only $24,000 in damages for future medical expenses. Accordingly, we sustain Bill Miller's second issue.
We arrive at this figure by multiplying the maximum $2,000 cost per injection testified to by Dr. Bustamante times the three shots in a series for an annual cost of $6,000, times the maximum four-year term during which Dr. Bustamante would continue treatment of Gonzales.
Gonzales asserts that the $50,000 award for future medical expenses is based, at least in part, on evidence that she will need to have back surgery in the future. The record indicates that Dr. Bustamante testified that he did not think Gonzales needed surgery. Dr. Bustamante indicated that patients with injuries like Gonzales's require surgery about only 15 to 20 percent of the time. He also stated that "[a]s far as predicting the future, [surgery] is always a possibility." After reviewing Dr. Bustamante's testimony, we do not believe this testimony shows a reasonable probability that Gonzales will have to undergo back surgery in the future. See Pilgrim's Pride Corp. v. Smoak, 134 S.W.3d 880, 905-06 (Tex.App.-Texarkana 2004, pet. denied) (holding no evidence to support award of future medical care where there was no testimony patient would require any additional medical procedures in the future beyond mere possibilities).
Loss of Past Earning Capacity
Bill Miller also complains the $2,500 jury award for loss of past earning capacity is not supported by the evidence. Loss of past earning capacity is recoverable as an element of damages in a personal injury case. Strauss v. Cont'l Airlines, Inc., 67 S.W.3d 428, 435 (Tex.App.-Houston [14th Dist.] 2002, no pet.). The measure of this type of damages is the plaintiff's diminished earning power or earning capacity in the past directly resulting from the injuries sustained. Id. "Recovery for loss of earning capacity is not based on the actual earnings lost, but rather on the loss of capacity to earn money." Id. It is not necessary for the injured party to have employment at the time of her injuries to recover for lost earning capacity. See Brazoria County v. Davenport, 780 S.W.2d 827, 832 (Tex.App.-Houston [1st Dist.] 1989, no writ).
The injured party has the burden of proving the loss of past earning capacity. Strauss, 67 S.W.3d at 435. To support a claim for loss of past earning capacity, the plaintiff must generally introduce evidence from which a jury may reasonably measure in monetary terms her earning capacity prior to injury. Id. "Although the amount of damages resulting from impairment of a plaintiff's earning capacity is largely within the discretion of the jury, a jury should not be left to mere conjecture when facts appear to be available upon which the jury could base an intelligent answer." Id. Naked or unsupported conclusions of a witness will not support a jury finding. Id. "In determining what evidence is sufficient to support a claim of loss of earning capacity, no general rule can be laid down, except that each case must be judged upon its peculiar facts, and the damages proved with that degree of certainty of which the case is susceptible." Id. at 436.
Gonzales testified that for some time prior to her accident, she was employed by Tony's Cleaning Service. She stated that she worked full-time for the company as a cleaner and earned $8.25 per hour. That job ended approximately three months before her accident when the company closed down. During the period following the accident, Gonzales was employed sporadically by various employers. She stated that when she did find regular employment with her last employer, Cowboy Cleaners, she had to leave the company after six months. According to Gonzales, she was unable to maintain her cleaning position with Cowboy Cleaners because her job duties aggravated her back. Gonzales also stated that she stopped working for Cowboy Cleaners in March of 2004 and has not worked since she left the company.
Gonzales stated that she was unemployed from March of 2004 up until her trial, which began on June 28, 2004. Gonzales was therefore unemployed for at least a twelve-week period before trial.
In light of Gonzales's testimony, we believe sufficient evidence was adduced at trial from which the jury could reasonably measure Gonzales's past earning capacity. Gonzales provided evidence of her pre-injury wages and work hours from which the jury might calculate damages. Gonzales also testified to a definitive period of time prior to trial in which she had not been working due to her back pain. Accordingly, we hold there is both legally and factually sufficient evidence to support the jury's finding on loss of past earning capacity. Bill Miller's complaint regarding Gonzales's past lost earning capacity is overruled.
Loss of Future Earning Capacity
Lastly, Bill Miller complains the $2,500 jury award for loss of future earning capacity is not supported by the evidence. Loss of future earning capacity is the plaintiff's diminished capacity to earn a living after the trial. Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21, 35 (Tex.App.-Tyler 2003, pet. denied). "Because the amount of money a plaintiff might earn in the future is always uncertain, the jury has considerable discretion in determining the amount." Id. The plaintiff, however, must introduce evidence sufficient to allow the jury to reasonably measure earning capacity in monetary terms to support an award for loss of future earning capacity. Id. at 35-36. An award for loss of future earning capacity may be based on a composite of factors that may affect a person's capacity to earn a living. Id. at 36. "To support an award of damages for loss of future earning capacity, the plaintiff can introduce evidence of past earnings; the plaintiff's stamina, efficiency, and ability to work with pain; the weaknesses and degenerative changes that will naturally result from the plaintiff's injury; and the plaintiff's work-life expectancy." Id. There must also be some evidence that the plaintiff had the capacity to work prior to the injury, and that her capacity was impaired as a result of the injury. Id.
As previously discussed, Gonzales was employed full-time before her injury. After incurring her injury, Gonzales has been in "a lot of pain." She testified that she has continuously endured pain for the two years following her injury. She has difficulty bending down, climbing ladders, and performing various other physical activities due to her condition. Gonzales stated that she is now physically unable to work as a cleaner, where she previously earned $8.25 per hour. Gonzales further stated that she had to leave her last employer due to her back pain, and she has not worked since she left that employment. Lastly, Dr. Bustamante testified that he believes Gonzales's work activities, particularly heavy lifting, should be restricted for at least a two-year period of time.
The record indicates that Dr. Bustamante believed Gonzales should not lift anything weighing more than 20 pounds.
From this testimony, the jury had sufficient evidence to determine Gonzales's diminished capacity to earn a living after the trial. We therefore hold that the evidence adduced at trial is both legally and factually sufficient to support the jury's award for lost future earning capacity. Bill Miller's complaint regarding Gonzales's lost future earning capacity is overruled.
Conclusion
Because the evidence is legally insufficient to support $1,667 of the $9,000 found by the jury to have been the amount Gonzales incurred for past medical care and $26,000 of the $50,000 found by the jury to be the amount Gonzales will incur for future medical care, we reverse the trial court's judgment insofar as it awards $1,667 for past medical expenses and $26,000 for future medical expenses and render judgment that Gonzales take-nothing for these amounts. We affirm the trial court's judgment in all other respects.
CONCURRING AND DISSENTING OPINION
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.
I note that Ms. Gonzales signs her name "Rosemarie Gonzales."
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).
See also, e.g., Burris v. Garcia, No. 04-03-00361-CV, 2005 WL 839442, at *6 (Tex.App.-San Antonio Apr. 13, 2005, no pet.) (mem. op.) ("Burris must present evidence to establish, in all reasonable probability, that future medical care will be required and the reasonable cost of that care."); Wal-Mart Stores, Inc. v. Nicholson, No. 04-97-00052-CV, 1998 WL 224744, at *4 (Tex.App.-San Antonio May 6, 1998, pet. denied) (not designated for publication) ("The jury may only consider those damages that the plaintiff will reasonably and probably undergo in the future, not the damages she may possibly undergo."); Rosenboom Mach. Tool, Inc. v. Machala, 995 S.W.2d 817, 828 (Tex. App — Houston [1st Dist.] 1999, pet. denied) ("[T]o sustain an award of future medical expenses, the plaintiff must present evidence to establish that in all reasonable probability, future medical care will be required and the reasonable cost of that care").