Opinion
No. 04-09-00732-CV
Delivered and Filed: February 9, 2011.
Appealed from the County Court at Law No. 2, Bexar County, Texas, Trial Court No. 339208, Honorable David J. Rodriguez, Judge Presiding.
Affirmed In Part Conditioned On Remittitur.
Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
OPINION
This is an appeal from a jury verdict in favor of appellee, David Ash, who sustained injuries when his car collided with a City of San Antonio street sweeper operated by a City employee. We suggest a remittitur of damages awarded for future physical pain, mental anguish, physical impairment, and medical care expenses, and a commensurate amount in prejudgment interest. We affirm in all other respects.
TRIAL COURT'S JURISDICTION
Ash filed suit in County Court at Law No. 2, Bexar County, Texas. "[A] statutory county court exercising civil jurisdiction . . . has concurrent jurisdiction with the district court in . . . civil cases in which the matter in controversy exceeds $500 but does not exceed $100,000, excluding interest, statutory or punitive damages and penalties, and attorney's fees and costs, as alleged on the face of the petition. . . ." TEX. GOV'T CODE ANN. § 25.0003(c)(1) (West 2004). In his original petition, Ash sought damages "in an amount within the jurisdictional limits of" the county court. In his second amended petition, Ash sought damages "in an amount to be determined by a jury of Plaintiff's peers but in no event to exceed $50,000."
The case went to trial on the second amended petition, and the jury awarded Ash $200,575.00. Ash filed a Motion for Leave to Amend Petition and Thereafter to Enter Final Judgment, which the trial court granted. In his post-verdict third amended petition, Ash sought damages "in an amount to be determined by a jury of Plaintiff's peers but in no event to exceed $200,575.00 exclusive of interest and costs." In its first issue, the City asserts the third amended petition divested the county court of jurisdiction because the petition alleged damages in an amount that exceeded the court's jurisdictional maximum limit of $100,000.
Of that amount, $89,000 was for past physical pain, mental anguish, physical impairment, and medical care expenses. Ash was awarded $111,000 for future physical pain, mental anguish, physical impairment, and medical care expenses. The balance of $575 was for the difference in market value of Ash's vehicle immediately before and immediately after the accident.
Generally, "where jurisdiction is once lawfully and properly acquired, no subsequent fact or event in the particular case serves to defeat that jurisdiction." Flynt v. Garcia, 587 S.W.2d 109, 109-10 (Tex. 1979). This rule also applies where the original suit is within the jurisdictional limits of the court and subsequent amendments seek only additional damages that are accruing because of the passage of time. Id. at 110. "This is especially so where there is no allegation of bad faith or fraud in invoking the jurisdiction of the court." Id. Here, the trial court properly acquired jurisdiction over the case based on Ash's original petition, which was filed on May 13, 2008. Ash filed his second amended petition on July 31, 2009, approximately six weeks before trial. On appeal, the City does not allege bad faith or fraud on Ash's part in invoking the jurisdiction of the court. Instead, the City argues that Ash never saw a doctor or sought medical treatment after November 14, 2008 (the date of his last doctor's appointment); therefore, no additional damages could have accrued in the interim between the date of the pre-trial second amended petition (July 31, 2009) and the date on which trial commenced (September 11, 2009).
Ash counters that when the case was originally filed and later when the second amended petition was filed, he was still in the preliminary stages of treatment. Ash contends he did not realize until August of 2009, when the doctors' depositions were taken, that future damages and other medical damages would exceed $50,000. Both of Ash's doctors testified he would need future physical therapy and steroid injections, with the possibility of future surgery. There is nothing on the face of Ash's petition suggesting, or any evidence in the record proving, that the amount in controversy was fraudulently alleged. In the absence of any such proof, Ash's "mere allegation of damages in excess of the court's jurisdictional limits in the amended petition does not deprive the trial court of jurisdiction." Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 449 (Tex. 1996). "Where the plaintiff's original and amended petitions do not affirmatively demonstrate an absence of jurisdiction, a liberal construction of the pleadings in favor of jurisdiction is appropriate." Id. We conclude Ash's damages accrued because of the passage of time from the date of his original petition; therefore, the allegation of damages contained in the post-verdict third amended petition in excess of the county court's jurisdictional limits did not deprive the court of jurisdiction.
See also Weidner v. Sanchez, 14 S.W.3d 353, 361 (Tex. App.-Houston [14th Dist.] 2000, no pet.) (noting the record did not affirmatively establish that plaintiff and her trial attorney knew or should have known her injuries were permanent at the time she filed her original petition; when the original petition was filed, plaintiff expected to get well, but she did not get well; and plaintiff's trial attorney said he did not know the treating doctor considered plaintiff's injuries to be permanent until he took the doctor's deposition, after which the attorney filed the amended petition); see also Univ. of Tex. Med. Branch at Galveston v. Danesi, No. 01-96-01107-CV, 1999 WL 164444, at *10 (Tex. App.-Houston [1st Dist.] Mar. 25, 1999, no pet.) (not designated for publication) (plaintiff and his wife both testified plaintiff continued to suffer from mental anxiety on a daily basis as a result of being given the wrong medication; jury award was not only for damages suffered as a result of plaintiff's past injuries, but included an award for future physical pain and mental anguish as well; court concluded plaintiff's damages accrued because of passage of time from the date of the original petition).
The City also asserts that the failure of the third amended petition to expressly state the increased damages accrued due to the passage of time deprives the county court of jurisdiction. The City relies on a Corpus Christi case that states as follows:
Thus, Chacon's original petition did not affirmatively establish the county court's jurisdiction and his first amended petition negated its jurisdiction because it pleaded for damages beyond the county court's jurisdictional limits. Thus, Chacon's assertion that the county court momentarily maintained jurisdiction over his suit is not supported by the record. Additionally, Chacon did not plead that the county court acquired jurisdiction because his damages had increased because of the passage of time.
Chacon v. Andrews Distrib. Co., Ltd., 295 S.W.3d 715, 726 (Tex. App.-Corpus Christi 2009, pet. denied) (emphasis added).
The City's reliance on what may be nothing more than dicta in the Chacon opinion is misplaced. In one of the cases relied upon by the Chacon court, Mr. W. Fireworks, Inc. v. Mitchell, 622 S.W.2d 576 (Tex. 1981), the original petition pled for attorney's fees in the amount of $750. At trial, plaintiff amended his petition to simply ask for "reasonable attorney's fees." Id. at 577. The jury awarded plaintiff $5,760 in fees. On appeal, the defendant argued the county court at law lacked jurisdiction to render judgment for $5,760 in fees because the amount exceeded the $5,000 maximum jurisdictional limit. Id. The Supreme Court held that "the county court at law acquired jurisdiction over the cause through the good faith allegations of [plaintiff's] original petition and the subsequent amendment which sought only additional attorney's fees accruing due to the further prosecution of the suit did not divest the court of jurisdiction." Id. The other Supreme Court case relied upon by the Chacon court, Continental Coffee Products, merely cites to Mr. W. Fireworks for the proposition that if "a plaintiff's original petition is properly brought in a particular court, but an amendment increases the amount in controversy above the court's jurisdictional limits, the court will continue to have jurisdiction if the additional damages accrued because of the passage of time." Id. at 449.
We do not interpret the Supreme Court opinions as holding there must be an express statement in a petition that the damages accrued over time. Therefore, we decline to hold that an amended petition that increases the amount of damages must expressly state "the additional damages accrued because of the passage of time."
MOTION FOR LEAVE TO AMEND
In a related issue, the City complains the trial court erred by allowing Ash to amend his petition after the verdict to conform to the amount the jury awarded.
Texas Rules of Civil Procedure allow for post-verdict amendment of pleadings, with leave of court, unless there is a showing by the opposing party that such amendment will surprise or prejudice it. TEX. R. CIV. P. 63, 66; see also Greenhalgh v. Serv. Lloyds Ins., 787 S.W.2d 938, 939 (Tex. 1990) (holding same); Weidner v. Sanchez, 14 S.W.3d 353, 376 (Tex. App.-Houston [14th Dist.] 2000, no pet.) (holding that "[a] trial court has no discretion to refuse a post-verdict amendment of pleadings unless the opposing party presents evidence of surprise or prejudice, or the amendment asserts a new cause of action or defense and the opposing party objects to the amendment."). In Greenhalgh, the plaintiff sought to amend his petition to conform to an award of $128,000 in punitive damages, when he had originally pled for only $100,000 in punitive damages. The defendant objected on the grounds that any amendment was prejudicial because it had relied on the $100,000 amount in plaintiff's pleadings "in preparing for trial and in deciding whether to settle the case." 787 S.W.2d at 939. The court of appeals agreed with this argument, reasoning that "because a defendant receives notice of the upper limit of punitive damages only by way of pleadings, it is an abuse of discretion to allow a post-verdict trial amendment increasing punitive damages when proper objections are made." Id. (internal citation omitted).
The Supreme Court disagreed, holding that under Rules 63 and 66 "a trial court has no discretion to refuse an amendment unless: 1) the opposing party presents evidence of surprise or prejudice, . . . or 2) the amendment asserts a new cause of action or defense, and thus is prejudicial on its face, and the opposing party objects to the amendment." Id. "The burden of showing prejudice or surprise rests on the party resisting the amendment." Id. The Court concluded that because the "plaintiff's amendment raised no new substantive matters and because there was no showing of surprise or prejudice by [defendant], the trial court properly granted leave to file the amendment." Id. at 939-40.
Here, the City contends it relied on Ash's pleadings and that an amended pleading seeking damages four times greater than the maximum dollar amount previously claimed resulted in both surprise and prejudice. The City argues that if Ash had amended his petition prior to trial, it would have had the opportunity to file a plea to the jurisdiction and examine the plaintiff at a hearing over whether the damages had increased due to the passage of time. We do not agree with this argument for two reasons. First, at the two hearings held on Ash's motion for leave to amend, the City asserted only two arguments: the same jurisdictional argument it makes here on appeal as stated above and it alleged the City handles claims under $50,000 in a manner different from claims over $50,000. The City did not elaborate on what it would have done differently if it had known pretrial about the increased damages claim. Second, the amended pleading did not raise any new substantive matters and the City was not prevented from disputing Ash's claims for future damages at trial. See Chapin Chapin, Inc. v. Tex. Sand Gravel Co., 844 S.W.2d 664, 665 (Tex. 1992) (characterizing the amendment in Greenhalgh as being of "a formal, procedural nature — increasing the ad damnum — which simply conformed the pleadings to the evidence at trial and did not result in surprise or prejudice"). Therefore, we conclude the City has not shown the trial court erred in allowing the amendment.
STRIKING THE CITY'S EXPERT
The City next asserts the trial court erred by striking its physician expert, and such error was harmful because the excluded evidence was both controlling on a material issue and not cumulative. Discovery sanctions imposed by a trial court will be set aside only if the court clearly abused its discretion. Koslow's v. Mackie, 796 S.W.2d 700, 704 (Tex. 1990).
On January 21, 2009, the trial court signed an order setting the case for jury trial to commence on September 14, 2009. The deadline to designate experts was June 14, 2009. On June 9, 2009, the City filed its first supplemental response to Ash's request for disclosures in which the City disclosed that Dr. Valdez "may offer testimony regarding the nature, extent, and cause of the conditions and injuries upon which Plaintiff seeks recovery from the City of San Antonio. Dr. Valdez is of the opinion that many of the complaints Plaintiff makes in this lawsuit are related to conditions that pre-existed the accident made the basis of this lawsuit." The City noticed Dr. Valdez's deposition on August 6, 2009, and he was deposed on August 10. Four days after the deposition, the City provided Ash with "copies of all information Plaintiff is entitled to." On September 4, 2009, Ash moved to strike Dr. Valdez on the grounds that the City had failed to timely (1) produce his curriculum vitae, (2) provide the facts known to him that relate to or form the basis of his mental impressions and opinions, and (3) identify or provide any documents, tangible things, reports, models or data compilations that have been provided to, reviewed by, or prepared by him in anticipation of his testimony. Following a September 11 hearing on the motion, the trial court granted Ash's motion to strike. Trial commenced on September 11.
For any testifying expert, a party is required to disclose the following:
(1) the expert's name, address, and telephone number;
(2) the subject matter on which the expert will testify;
(3) the general substance of the expert's mental impressions and opinions and a brief summary of the basis for them, or if the expert is not retained by, employed by, or otherwise subject to the control of the responding party, documents reflecting such information;
(4) if the expert is retained by, employed by, or otherwise subject to the control of the responding party:
(A) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert's testimony; and
(B) the expert's current resume and bibliography.
TEX. R. CIV. P. 194.2(f).
A party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce into evidence the material or information that was not timely disclosed, unless there is good cause for such failure or the failure to disclose will not unfairly surprise or prejudice the other parties. TEX. R. CIV. P. 193.6(a).
In this case, the City provided only (1) Dr. Valdez's name, address, and telephone number; (2) the subject matter on which he would testify; and (3) the general substance of his opinion. None of the other disclosures required by Rule 194.2(f) were provided. At the hearing on the motion to strike and on appeal, the City makes no argument on whether its failure to provide the required disclosures was for good cause. Instead, the City argues its failure to disclose did not unfairly surprise or prejudice Ash because Ash had the opportunity to depose Dr. Valdez prior to trial. However, none of the required disclosures were provided prior to or at the deposition. At the hearing on the motion to strike, Ash's attorney argued as follows:
On the [doctor], the opinions were very vague, no facts were provided for the basis of those opinions and absolutely no documents were produced at that time, not even a curriculum vitae for the doctor. That was four days before the designation deadline. Then subsequent to that, if you look at the timeline, on August the 6th the defendant noticed the deposition for the doctor, the orthopedic doctor. Noticed it four days later. . . . We didn't object [to the deposition notice].
[The City's attorney] took and noticed her expert's deposition. Even at the deposition, Your Honor, no documents were provided, no file was brought by the doctor to his deposition. Still nothing was produced in terms of what was relied upon or anything else. So we were at this — this fact-finding deposition with absolutely no way of preparing a cross-examination for the doctor because we had no idea what his opinions were going to be or anything else.
On this record, we conclude the City did not establish that the trial court abused its discretion in striking the City's expert.
The City also contends that because Ash waited until trial to file the motion to strike, he waived any complaint. Failure to obtain a pretrial ruling on discovery disputes that exist before commencement of trial constitutes a waiver of any claim for sanctions based on that conduct. Remington Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993). We do not agree that Ash waived his complaint because he did not, as the City contends, wait until trial to file the motion. Ash filed the motion on September 4, ten days before trial, and promptly attempted to get the motion heard. At the September 11 hearing, Ash's counsel explained he tried to get a hearing on the motion sooner, but was unable to do so because the week before the hearing was a judicial conference week.
SUFFICIENCY OF THE EVIDENCE
The City asserts the evidence is legally and factually insufficient to support causation and future damages. Specifically, the City challenges a finding that the accident caused injuries to Ash's back and leg on the grounds that neither of Ash's two physician experts ruled out other possible causes of his injury or condition, and neither expert provided any evidence as to Ash's need for future surgery; therefore, there is no evidence of future damages.
A. Causation
Differential diagnosis "is a routine diagnostic method used in internal medicine whereby a treating physician formulates a hypothesis as to likely causes of a patient's presented symptoms and eliminates unlikely causes by a deductive process of elimination." Transcontinental Ins. v. Crump, No. 09-0005, 2010 WL 3365339, at *3 (Tex. Aug. 27, 2010). "If the physician's treatment of the suspected cause alleviates the patient's symptoms, the disease or condition treated can be said to have been the internal cause of the eliminated symptoms." Id. "If the patient's symptoms remain after treatment of the suspected disease or condition, the physician rules out the suspected disease or condition as the internal cause of the patient's symptoms and formulates a new hypothesis as to the possible culprit." Id. However, "in some cases, a physician's differential diagnosis may be too dependent upon the physician's subjective guesswork or produce too great a rate of error — for example, when there are several consistent, possible causes for a particular set of symptoms." Id. at *5. The question is whether the testimony of Ash's experts, two practicing physicians, adequately excluded, with medical certainty, any other plausible causes of Ash's injury.
Ash presented two medical experts at trial, Dr. Robert Lowry and Dr. Michael Kruczek. Dr. Lowry received his medical degree from George Washington University; he completed a general surgery residency in San Antonio, spent two years doing cardiothoracic surgery, and then two more years doing hand surgery. He now practices in pain management and rehabilitation medicine.
Dr. Lowery first saw Ash on January 25, 2008, about two weeks after the accident. On the first visit, Ash complained of chest pain, and tingling and pain in the anterior portion of his thighs and his left forearm. He complained about his left leg because he thought it hit the dashboard during the collision. He had also fractured his right ribs. In addition to taking Ash's medical history and performing a physical examination of Ash, Dr. Lowry had access to the medical reports from the hospital Ash went to immediately following the accident, including the radiology reports. While under Dr. Lowry's care, Ash underwent physical therapy from January 2008 through April 2008. At their May 21, 2008 appointment, Dr. Lowry recommended Ash get epidural steroid injections ("ESIs") to reduce inflammation and then come back for two weeks of physical therapy. By late August 2008, Ash had received one ESI. Ash's last appointment was on November 14, 2008. Ash never returned for physical therapy.
Dr. Lowry explained that although he treated Ash's pain with medication, his goal was to determine the underlying reason for the pain and then treat the specific nerve contusion that caused the pain. To that end, on February 20, 2008, Dr. Lowry ordered an MRI and EMG. Ash's complainants were consistent with what Dr. Lowry's examination and the radiology reports revealed. Dr. Lowry believed the numbness in Ash's thighs originated in his lumbar spine. Dr. Lowry explained he based his opinion on the following: Ash's prior history of not having the same pain issues, he was not seeing another doctor for any reason prior to this accident, he had no diseases or other problems prior to the accident, he did not indicate he had prior degenerative problems with his elbow, the radiologist's report, and the physical examination Dr. Lowry conducted.
As to the bulging discs revealed in the radiology report, Dr. Lowry stated: "Some of these things are certainly chronic, that didn't happen . . . a week before the MRI [such as degenerative disc disease]." When asked which pre-existing medical conditions Ash may have suffered from that were exacerbated by the accident, Dr. Lowry replied:
Well, clearly on his MRI, he's got some underlying degeneration in his spine, . . . but I think an MRI, all of us, and we're going to see some to some extent. Those are probably significantly exacerbated. I have no history to say he was complaining of that before. I've got a mechanism by which it's reasonable to consider that's going to cause this. I certainly could. The physics would be there, and so that's there. So that's probably the only thing of prior stuff that got exacerbated, and I don't recall he had a neurologic problem before, but he's kind of got now, you know, that numbness and again I don't know if he's all — if it's kind of waxed this way with time or waxed that way. I don't know.
. . .
So, I think in answering your question still, he had some degenerative process going on. Was he you know, like some 80-year-old? Obviously not. I mean, it wasn't that bad. And now after the injury after the accident . . . that certainly exacerbated these problems, but I think it created a new problem, probably that herniated disc because he now had that new symptom along with the others — but the main thing that I'm talking about here is that the anterior thigh numbness or tingling that he's talking about —
Dr. Lowry concluded the cause of Ash's pain, numbness, and other conditions was the January 14, 2008 car accident.
Dr. Michael Kruczek's specialty is pain management and anesthesiology, and he is the doctor who administered the ESI to treat Ash's pain and numbness. On August 5, 2008, Ash met with Dr. Kruczek's partner for an initial evaluation; and on August 18, 2008, Ash met with Dr. Kruczek, at which time Dr. Kruczek explained the ESI technique, they discussed Ash's physical complaints, and Dr. Kruczek administered the injection. Dr. Kruczek explained the most significant area of pain for Ash was his lower back with numbness and tingling in the legs, and the left leg being weak. Because Dr. Kruczek needed to know how and where to place the injection, he elicited from Ash the following information: Ash had no history of low back pain before the accident and no prior surgeries. They also discussed the location of the pain and how it radiated to his legs. When asked whether he intended the injection to treat the pain or numbness, Dr. Kruczek replied as follows:
Really, both. I looked at the time that he had what we call nerve root irritation at that level, spinal nerve root irritation which can develop after an accident and one in which there's a herniated disk. The disk makes contact with the nerve root and there can be bruising or contusion of that nerve root causing it to swell and become inflamed and that can be a source of this kind of pain.
Dr. Kruczek explained that a person who has had multiple injuries, such as Ash's fractured ribs and leg contusions, may not immediately focus on lower back pain because the more acute pain might take precedent over the pain from a herniated disk. Dr. Kruczek said two diagnostic studies provided objective findings consistent with Ash's complaints. One of the studies — -an EMG nerve conduction test — provided inconclusive results on whether the L3 nerve root was the "troublemaker" because of the swelling in Ash's leg. However, the test ruled out certain causes, such as other nerve damage due to neuropathy, diabetes, or any other type of degenerative neuromuscular-type conditions. Dr. Kruczek explained that nerve root irritation at L3 could result in numbness in the area Ash complained of because "the nerve will run from the lower back, around the buttocks, and on to the front part of the thigh and then sweeps a little bit under the knee and then down the calf. . . ." He also explained that "other than the L3 nerve root, there are some peripheral cutaneous nerves that exit in the groin area that can be damaged in the kind of accident that he had but due usually to seat belt trauma . . . and it can pretty much mimic the kind of pain he was having in the front part of the thigh." "And so that would be part of the differential diagnosis in Mr. Ash and is the femoral cutaneous nerve involved." Dr. Kruczek agreed with the EMG results that indicated the nerve was not impinged, but was irritated "with basically nerve root irritation." When asked whether it was common for someone of Ash's age and size to have pinching on these nerves causing numbness in the thighs, Dr. Kruczek replied one would not see this "even in an obese patient unless . . . they were wearing a belt that was too tight for a prolonged period or if they were in a motor vehicle accident that had a seat belt type of contusion." Dr. Kruczek had never seen a condition similar to neuralgia parenthesias other than in a traumatic situation due to trauma.
Ash was forty-two years old, about six feet tall, and weighed about 300 pounds "with an abundance of . . . adipose tissue.
Pain associated with a particular nerve.
Dr. Kruczek explained that although Ash did not complain about lower back pain when the nerve conduction study was done on March 3, 2008, he probably was already experiencing the pain, just not on that particular date. Dr. Kruczek said he did not know whether the one injection had successful results because Ash never returned to his office. Because Ash told him he had never had lower back pain before the accident, Dr. Kruczek believed his pain was the result of the motor vehicle accident.
Although Dr. Lowry testified Ash had some underlying degeneration of his spine, there was evidence that despite this condition, Ash was generally in good health before his injury, and that soon after the accident he began to experience pain, numbness, and tingling. Objective evidence of Ash's good health before the accident, the development of his symptoms shortly afterward, and the continued effect on his health "reasonably ruled out the possibility" that his condition was from other causes. See Transcontinental Insurance, 2010 WL 3365339, at *5 (holding same under similar circumstances). We conclude Dr. Lowry's medical causation opinion provided a cause that excluded, with reasonable medical certainty, other causes of Ash's injury or condition. "The evidence was not conclusive, but it was not required to be. It was sufficiently reliable to be considered by the jury." Id. "[T]he question was no longer one of legal sufficiency, but rather one of competing evidence to be weighed by the jury." Id. We conclude the evidence is both legally and factually sufficient to support a finding that Ash's injuries and condition were caused by the accident.
B. Future Damages
As to future damages, the jury awarded (1) $25,000 for future physical pain and mental anguish, (2) $20,000 for future physical impairment, and (3) $66,000 for future medical care expenses. On appeal, the City contends "there is no basis to support any of the jury's future damages."
Ash testified he continued to have numbness in both of his thighs, his feet continued to hurt, and his left arm aches. He also continues to have discomfort in his chest due to the broken ribs. Dr. Lowry testified Ash would need a series of ESIs, with each injection followed by up to two weeks of physical therapy. He expected Ash would continue to have pain in his ribs "for a long time," and if Ash continued to have numbness and pain in his thighs eleven months after the accident and it affected his daily life, then Dr. Lowry would recommend new ESIs followed by therapy. Dr. Kruczek explained that often two to three injections are needed to achieve successful results. When asked what the future held for Ash when, almost a year after their last meeting, Ash continued to have numbness in both thighs and weakness in his left leg, Dr. Kruczek replied that Ash needed to complete his ESI therapy and, if that failed, perhaps surgery. However, having seen Ash only once, Dr. Kruczek could not provide an opinion within a reasonable degree of medical probability on whether Ash would need any of these procedures.
We agree with the City that the doctors' testimony regarding any future need for surgery is speculative at best. It is unclear from the record how much of the award of $66,000 in damages for future medical care is attributable to ESI therapy and physical therapy. It is also unclear from the record to what extent the jury awarded Ash damages for future physical pain and mental anguish and future physical impairment unassociated with surgery.
Unlike a situation where no evidence establishes any amount of future damages with reasonable certainty, the situation here requires a reduction, not a take-nothing judgment against Ash. We affirm the trial court's judgment as to liability and the award of past damages and damages related to Ash's vehicle, conditioned on the remittitur. Because there is not legally sufficient evidence to support all of the future damages, pursuant to Texas Rule of Appellate Procedure 46.3, we suggest a remittitur of the $111,000 awarded for future damages, plus a commensurate amount of prejudgment interest. Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex. 1987) (if part of damage verdict lacks sufficient evidentiary support, proper course is to suggest remittitur of that part of the verdict); City of Emory v. Lusk, 278 S.W.3d 77, 88 (Tex. App.-Tyler 2009, no pet.) (same).
CONCLUSION
If Ash files a remittitur within twenty days from the date of this opinion and judgment, we will (1) modify the trial court's judgment to reflect the award of $89,000.00 in past damages, $575.00 for the difference in market value of Ash's vehicle immediately before and immediately after the accident, plus $4,423.80 for taxable court costs and prejudgment interest; and (2) affirm that portion of the judgment as modified. The record does not reflect the dates the trial court used to calculate the award of prejudgment interest or the percentage rate used for the calculation. However, in the interest of judicial economy, if Ash files a remittitur of $111,000 and the parties agree on the amount of prejudgment interest that Ash must remit, we will not remand to the trial court to recalculate the award of prejudgment interest. In the event the parties cannot agree on the amount of prejudgment interest, we will remand to the trial court to recalculate the award of prejudgment interest on all actual damages that are not future damages in accordance with this opinion.
In the event a full remittitur is not timely filed, the trial court's judgment is reversed and the cause remanded for a new trial. See TEX. R. APP. P. 44.1(b) (prohibiting a separate trial solely on unliquidated damages when liability is contested); see also Estrada v. Dillon, 44 S.W.3d 558, 562 (Tex. 2001) (stating party's failure to present on appeal an additional discrete challenge to liability when party challenges damages does not defeat plain language of rule 44.1(b)).