Summary
holding temporal proximity of onset of patient's symptoms, together with physician's testimony that results from patient's MRI "showed that the herniation at L5-S1 was 'acute,' meaning recent, and suggestive of trauma," and his experience as an orthopedic surgeon, constituted sufficiently reliable basis from which doctor could opine that herniations were, "in reasonable medical probability, caused by the accident" and not by degeneration, as suggested
Summary of this case from Hulsey v. AttallaOpinion
NO. 03-16-00696-CV
03-02-2018
Marcel Edward Williams and Loomis Armored US, LLC, Appellants v. Glen Dale Crawford and Daytona Crawford, Appellees
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 270,341-B, HONORABLE JACK WELDON JONES, JUDGE PRESIDING MEMORANDUM OPINION
Appellee Glen Dale Crawford sued Loomis Armored US, LLC, and Loomis employee Marcel Edward Williams (collectively, the "Loomis Defendants") for personal injuries sustained when Crawford's car was struck by an armored truck driven by Williams. Following a jury trial, the trial court signed a judgment awarding Crawford both compensatory and exemplary damages. On appeal, the Loomis Defendants challenge (1) the trial court's decision to allow Crawford's medical experts to testify that Crawford's medical conditions were caused by the accident; (2) the sufficiency of the evidence supporting the jury's determination that Crawford's medical conditions were caused by the accident and, consequently, the sufficiency of the evidence supporting the jury's award of compensatory damages; (3) the sufficiency of the evidence supporting the jury's finding that Williams was grossly negligent; and (4) and the trial court's decision to admit certain evidence at trial.
For the reasons set forth below, we affirm that portion of the judgment awarding compensatory damages against the Loomis Defendants, conditioned on Crawford filing a remittitur reducing by $27,856.88 the award for medical care expenses incurred in the past. We reverse that portion of the judgment finding Williams grossly negligent and awarding exemplary damages against Williams and render judgment that Crawford take nothing on this claim.
BACKGROUND
On May 10, 2012, Crawford was driving his extended-cab pickup truck on his way home from work when, while stopped at a red light, he was hit from behind by Williams, driving a Loomis armored truck. At trial, Crawford presented evidence showing that the force of the impact caused his vehicle to move into the intersection, that his seat was thrown backward into the back cab, and that he struck his head on the rear windshield, shattering that windshield. When EMS personnel arrived at the scene, Crawford complained of neck and back pain and was transported to a nearby hospital. Upon evaluation by emergency-room personnel, Crawford was diagnosed with "blunt trauma, concussion" and released from the hospital the same day. Approximately one month later, Crawford returned to his work as a dump-truck driver for a local construction company. However, according to his employer, Crawford was unable to perform his duties in the same manner that he had before the accident, and he stopped working entirely in September 2013.
At trial, Russell Schneider, the owner of the construction company, testified that Crawford required assistance in some of his duties and that "there were days we had to send him home because we didn't want him to . . . further hurt himself."
Crawford sued the Loomis Defendants, asserting claims for common-law negligence and negligence per se against the Loomis Defendants and a claim for gross negligence against Williams. Before trial, the Loomis Defendants stipulated that Williams was negligent, that his negligence proximately caused the accident, and that he was acting within the course and scope of employment with Loomis at the time of the accident. As a result of the stipulation, the only issues remaining at trial were (1) the amount of damages, if any, that Crawford sustained as a result of the accident, and (2) whether Williams was grossly negligent and, if so, the amount of exemplary damages that should be assessed.
At trial, Crawford's evidence included the testimony of three medical doctors (an orthopedic surgeon, a neurologist, and a radiologist), all of whom he had designated as expert witnesses. Each treating doctor described the various symptoms that Crawford had presented following the accident (both orthopedic and neurological), the steps taken to assess Crawford's symptoms, and his ultimate diagnoses. The doctors also testified that, to a reasonable medical probability, Crawford's medical conditions were caused by the May 2012 accident. Crawford further presented the expert testimony of a vocational economist, who testified that Crawford's physical impairments rendered him "totally disabled" and opined as to Crawford's loss of earning capacity. Finally, Crawford presented the expert testimony of a certified life-care planner, who testified to Crawford's future medical needs. The only witness presented at trial by the Loomis Defendants was Crawford, through the reading of excerpts from his deposition.
At the conclusion of the trial, the jury was asked to determine the amount of damages that "would fair[ly] and reasonably compensate [Crawford] for his injuries, if any, that resulted from the [accident]." The jury awarded Crawford $840,914 in various compensatory damages. The jury also found that Williams was grossly negligent and awarded Crawford $5,000 in exemplary damages. The trial court later signed a judgment in accordance with the jury's verdict.
This appeal followed.
ANALYSIS
In eight issues, the Loomis Defendants challenge (1) the jury's decision to award any compensatory damages for Crawford's complained-of injuries; (2) the trial court's decision to admit certain evidence at trial; and (3) the jury's finding that Williams was grossly negligent. We will examine each of these challenges in turn.
I. Challenges to the Jury's Finding on Causation and Award of Compensatory Damages
Establishing causation in a personal-injury case requires the plaintiff to prove that the defendant's negligence caused an event and that the event caused the plaintiff's complained-of injuries. JLG Trucking LLC v. Garza, 466 S.W.3d 157, 162 (Tex. 2015). "Proving that the event sued upon caused the plaintiff's alleged injuries is part and parcel of proving the amount of damages to which the plaintiff is entitled. The causal nexus between the event sued upon and the plaintiff's injuries must be shown by competent evidence." Guevara v. Ferrer, 247 S.W.3d 662, 666 (Tex. 2007) (quoting Morgan v. Compugraphic Corp., 675 S.W.2d 729, 732 (Tex. 1984)). Here, because the Loomis Defendants stipulated before trial that Williams's negligence caused the May 2012 accident, the sole remaining issues at trial with respect to Crawford's compensatory damages were whether and to what extent the May 2012 accident caused Crawford to suffer the medical conditions for which he sought compensation.
In three related issues on appeal, the Loomis Defendants challenge the jury's decision to award compensatory damages for Crawford's medical conditions. Specifically, in issue one, the Loomis Defendants challenge the trial court's decision to allow Crawford's medical experts to testify that the medical conditions for which Crawford sought compensation were caused by the accident. In issues four and seven, the Loomis Defendants challenge the sufficiency of the evidence supporting the jury's finding that Crawford suffered compensable injuries as a result of the accident and the sufficiency of the evidence supporting the amount of damages awarded by the jury to Crawford as compensation for his injuries. A. Expert Testimony
Specifically, in issue four, the Loomis Defendants assert that "the evidence is factually insufficient to support the jury's damages awards," and in issue seven, the Loomis Defendants contend that "there is no evidence to support the jury's award of future damages or of past medical expenses." In both of these issues, the Loomis Defendants argue that because there is no evidence that Crawford's conditions were caused by the accident and, alternatively, because the overwhelming weight of the evidence demonstrates that Crawford's medical conditions were not caused by the accident at all, there is insufficient evidence to support the jury's award of damages. In effect, the Loomis Defendants' arguments are an attack on the jury's finding on causation.
Liberally construing the Loomis Defendants' arguments on appeal, we will treat issues four and seven as a two-part complaint (1) to the legal and factual sufficiency of the evidence supporting the jury's finding on causation and (2) to the factual sufficiency of the evidence supporting the amounts of damages awarded by the jury. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 408 (Tex. 1998) (case in which appellant challenged factual sufficiency of damages based on lack of reliable expert testimony on causation, concluding that court of appeals "followed applicable law when it analyzed [appellant's] challenge to causation as to injury instead of damages and when it reviewed the amount of the damage awards under traditional factual sufficiency review").
Texas Rule of Evidence 702 provides that "a witness who qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." Tex. R. Evid. 702. In other words, "[a]n expert witness may testify regarding 'scientific, technical, or other specialized' matters if the expert is qualified and if the expert's opinion is relevant and based on a reliable foundation." Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 578 (Tex. 2006) (quoting Rule 702 of rules of evidence). Here, the Loomis Defendants do not assert that Crawford's medical experts were unqualified to testify as expert witnesses in this case. Rather, the Loomis Defendants challenge the testimony of all three of Crawford's medical experts on the ground that their opinions as to the cause of Crawford's medical conditions were unreliable.
A trial court has broad discretion in deciding whether to admit or exclude expert testimony. Id. (citing Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex. 2002)). As a reviewing court, we will not reverse a trial court's ruling on the admissibility of expert testimony unless that discretion is abused. Id. A court abuses its discretion if it acts without reference to guiding rules and principles. Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006). A trial court's "[a]dmission of expert testimony that does not meet the reliability requirement is an abuse of discretion." Id.
A party who properly objects to the admission of expert testimony at trial may also assert on appeal that the expert testimony is unreliable and therefore legally insufficient to support the judgment. City of San Antonio v. Pollock, 284 S.W.3d 809, 817 (Tex. 2009); Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998) ("To preserve a complaint that scientific evidence is unreliable and thus, no evidence, a party must object to the evidence before trial or when the evidence is offered."). This legal-sufficiency review "encompasses the entire record, including contrary evidence tending to show the expert is incompetent or unreliable." Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex. 2009); see also City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005) (explaining that no evidence exists if "the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact"). In addition, expert opinion testimony that is based completely on mere speculation or that is conclusory on its face will not support a judgment on appellate review, even when no objection is made to its admission at trial. Pollock, 284 S.W.3d at 816.
The reliability requirement for expert testimony under Rule 702 focuses on the principles, research, and methodology underlying an expert's conclusions. Zwahr, 88 S.W.3d at 629. Expert testimony is unreliable if it is not grounded "'in the methods and procedures of science' and is no more than 'subjective belief or unsupported speculation.'" Id. (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993)). In assessing the reliability of a particular methodology, a court may consider the factors set out in the Texas Supreme Court's decision in E.I. du Pont de Numours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995). In addition, when experts rely on experience, knowledge, and training rather than a particular methodology to reach their conclusions, a court should assess reliability by determining whether there is "too great an analytical gap between the data and the opinion proffered." Mack Trucks, 206 S.W.3d at 578 (citing Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998)). "We are not required . . . to ignore fatal gaps in an expert's analysis or assertions that are simply incorrect." Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 912 (Tex. 2004).
In Robinson, the court identified six, non-exhaustive factors for evaluating scientific testimony: (1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique's potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses which have been made of the theory or technique.
In a personal-injury case, the plaintiff must present expert testimony to establish causation as to any medical conditions outside the common knowledge and experience of jurors. See Guevara, 247 S.W.3d at 665. A plaintiff is not required to show that the defendant's negligent act or omission was "the sole cause of [his] injury," only that it was a "substantial factor in bringing about the injury." Bustamante v. Ponte, 529 S.W.3d 447, 457 (Tex. 2017). In addition, "a medical causation expert need not 'disprov[e] or discredit[] every possible cause other than the one espoused by him.'" Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211, 218 (Tex. 2010) (quoting Viterbo v. Dow Chem. Co., 826 F.2d 420, 424 (5th Cir. 1987)). However, "if evidence presents 'other plausible causes of the injury or condition that could be negated, the [proponent of the testimony] must offer evidence excluding those causes with reasonable certainty.'" JLG Trucking, 466 S.W.3d at 162 (quoting Transcontinental Ins. Co., 330 S.W.3d at 218).
With these legal principles in mind, we will address the Loomis Defendants' challenge to each individual medical expert's testimony. Dr. Robert Josey , orthopedic surgeon
At trial, the trial court considered the Loomis Defendants' challenge to the reliability of the testimony of Dr. Robert Josey, one of Crawford's treating physicians. The Loomis Defendants explained to the trial court that they anticipated that Crawford would call Dr. Josey, an orthopedic spine surgeon, to testify and that Dr. Josey would likely opine that certain conditions suffered by Crawford in his neck and spine were caused by the May 2012 accident. The Loomis Defendants objected to Dr. Josey's anticipated expert testimony on the ground that "he has no reliable scientific basis for such an opinion."
Although the Loomis Defendants had filed a motion to strike all of Crawford's medical experts, including Dr. Josey, and a hearing was held on the motion prior to trial, the trial court decided to postpone hearing the motion as it related to Dr. Josey until trial.
A Robinson hearing was conducted outside the presence of the jury. At the hearing, Dr. Josey testified that he had conducted two surgeries on Crawford—one in December of 2013 and one in March 2016—to correct injuries that, in his opinion, were caused by the accident. Dr. Josey explained that his opinion that the accident had caused Crawford's condition was based on the fact that Crawford "didn't really have any complaints and was working as a functional member of society until he got in the accident, and he started having significant pain and neurological symptoms after the accident." Dr. Josey went on to explain that his opinion on causation was also based on the results of magnetic resonance imaging (MRI). According to Dr. Josey, Crawford's MRI, conducted shortly before his December 2013 surgery, revealed that Crawford had "right-sided disc herniation at L5-S1." Dr. Josey considered these MRI findings to be consistent with an "acute," meaning "new," injury.
Dr. Josey acknowledged during the Robinson hearing that disc herniations can develop as a result of degeneration alone and that it would not be unusual for a man of Crawford's age to have a lower-back disc herniation. Dr. Josey also acknowledged that even prior to the collision, Crawford had a condition known as "spinal stenosis," or "tightening around the nerves," at the L4-5 area of his spine. However, Dr. Josey testified that Crawford's pre-existing spinal stenosis "set the stage for him to become injured in the car accident" and that the car accident "exacerbate[d] or [sped] up the process of the spinal stenosis." At the close of the hearing, the trial court overruled the Loomis Defendants' objection and allowed Dr. Josey to testify.
Crawford was 59 years old at the time of the accident.
Before the jury, after testifying to his credentials and experience in orthopedic medicine, Dr. Josey told the jury that he had examined Crawford "10 to 12 times" and "ordered two MRIs over the course of his treatment." Dr. Josey presented Crawford's December 2013 MRI to the jury and pointed out to the jury the various places on the MRI that, according to Dr. Josey, evidenced injuries to Crawford's spine and neck. In part, Dr. Josey explained that the MRI showed that Crawford was suffering from a disc herniation in his lower back, L5-S1, and from a disc herniation in his neck, C6-7. Dr. Josey described "disc herniation" to the jury as occurring when the "gel that acts as a shock absorber" between vertebrae "spits out toward the spine" and explained that "there [are] many different reasons that herniation can happen," often a traumatic event but sometimes without any apparent explanation. In discussing Crawford's lower-back disc herniation at L5-S1, the following exchange took place between Crawford's counsel and Dr. Josey:
COUNSEL: When—when you look for that explanation, Doctor, do you look for the original onset of symptoms? Is that something that you do?
JOSEY: Yes, I think that's pretty important in trying to figure out what was the source of the problem.
COUNSEL: Okay. And I think you told us that you've got the cursor where the disc herniation was on Mr. Crawford, were you able to determine the reasonable medical probability what the onset of the symptom was for him?
JOSEY: I think—I think the car wreck that was in 2012, was the source of what I see right there, that disc herniation at L5-S1.
COUNSEL: You base that on—or tell me what you base that on.
JOSEY: I base that on the fact that he was a functional member of society doing well with minimal to no pain, gets in a car wreck and now has symptoms that are consistent with an acute injury that I see on his MRI.
With respect to Crawford's cervical disc herniation at C6-7, Dr. Josey explained that, in his opinion, this herniation was causing nerve pain in Crawford's arm and was also "more likely than not" a result of traumatic injury, as opposed to degeneration. Again, Dr. Josey explained, "[Crawford] didn't have neck pain prior to the accident. His head goes through the back window of the car. That's a lot of trauma to the neck. I think this probably is a traumatic injury." Dr. Josey treated Crawford's cervical disc herniation with cervical epidural steroid injections.
Dr. Josey then explained to the jury that the MRI also showed a narrowing or "stenosis" of Crawford's spine where the spine "kind of crunched together right there at L4-5" and later in his testimony, described the L4-5 area as "a pinched nerve." Dr. Josey conceded that the damage at L4-5 "appears to be more degenerative" and is the area where Crawford "previously had surgery on his back in 1996." Dr. Josey also acknowledged that the May 2012 accident with Williams "likely did not cause the narrowing at L4-5." However, Dr. Josey stated, "trauma can aggravate symptoms that were previously asymptomatic" and that, in this case, Crawford was "asymptomatic" following his 1996 surgery until the collision in 2012, at which point he began to suffer back pain, bilateral leg pain, and numbness. Crawford's counsel questioned Dr. Josey about the effect of the accident on the L4-5 area:
COUNSEL: How does that work?
JOSEY: So if the nerves are tight, which they probably were at L4-5, like I discussed earlier, prior to the accident, there's less room for the nerves to move around. So if something traumatic happens and there's a constriction on the nerves, they get stretched and pulled and traction is applied to the nerves, and that traction injury alone can cause an exacerbation of pain, and then you throw in another disc herniation and that is kind of like the straw that broke the camel's back, or it could be. I mean it's like adding insult to injury. You have a disc herniation on top of spinal stenosis, its just going to pinch already pinched nerves further.
Finally, Dr. Josey told the jury that because Crawford's symptoms were worsening and because more conservative treatments had failed to afford relief, he treated Crawford's L4-5 and L5-S1 by surgery in December 2013, "unpinch[ing] the nerves by taking off bone and ligament and disc herniation."
On cross-examination, Dr. Josey acknowledged that the December 2013 surgery also revealed that scar tissue had developed over time in the L4-5 area as a result of Crawford's 1996 surgery, entrapping nerve roots and "contribut[ing] to the problem." Dr. Josey also acknowledged that this "build up" of scar tissue could cause leg pain and that he removed the scar tissue on the L4-5 area as part of the surgery. In addition, Dr. Josey confirmed that a second MRI showed that Crawford had "degenerative disc disease" in his lower back in the L3-4 area and that he performed a second surgery in March 2016 to remove a synovial cyst in the L3-4 area. According to Dr. Josey, the second surgery was required to remove the cyst because the 2012 MRI did not show that Crawford had a cyst and, in Dr. Josey's view, the cyst likely developed some time between 2015 and 2016.
On appeal, the Loomis Defendants assert that the trial court erred in allowing Dr. Josey to testify that Crawford's back and neck conditions were caused by the accident because Crawford failed to meet his burden to show that Dr. Josey's opinions were reliable. In addition, the Loomis Defendants contend that because Dr. Josey's testimony was conclusory and unreliable, it constitutes no evidence that Crawford's back and neck conditions were caused by the May 2012 accident. The Loomis Defendants argue that the only basis presented by Dr. Josey to support his opinion on causation was the fact that Crawford did not begin to experience pain until after the accident. According to the Loomis Defendants, Dr. Josey's statements regarding the temporal proximity of the accident to the onset of Crawford's condition "were wholly inadequate to constitute a basis" and "are not recognized by the relevant scientific community as scientific proof of causation."
"In personal injury cases, trial evidence generally includes evidence of the pre-occurrence condition of the injured person, circumstances surrounding the occurrence, and the course of the injured person's physical condition and progress after the occurrence." Guevara, 247 S.W.3d at 666-67. "Evidence of an event followed closely by manifestation of or treatment for conditions which did not appear before the event raises suspicion that the event at issue caused the conditions." Id. at 668. However, except in limited circumstances not present here, temporal proximity between the event and the conditions does not meet the standards of scientific reliability and does not, by itself, support an inference of medical causation. Id. Nevertheless, when combined with other causation evidence, evidence that conditions exhibited themselves or were diagnosed shortly after an event may be probative in determining causation. Id.
In this case, Crawford sought to prove through Dr. Josey's expert testimony that the accident caused him to suffer various injuries to his back and neck: (1) a disc herniation at L5-S1; (2) a disc herniation at C6-7; (3) a "pinched nerve" at L4-5; and (4) a synovial cyst at L3-4. Based on the record before us, we conclude that Dr. Josey's testimony at the Robinson hearing and at trial was sufficient to establish that the cause of Crawford's lower back disc herniation at L5-S1 and cervical herniation at C6-7 was the May 2012 accident. See id. at 667 (temporal proximity alone will not support inference of medical causation). In addition to evidence that Crawford began experiencing symptoms after the accident which he had not been experiencing before the accident, Dr. Josey testified that he relied on the results from Crawford's 2013 MRI, which showed that the herniation at L5-S1was "acute," meaning recent, and suggestive of trauma. And while not necessarily conclusive as to causation, the temporal proximity of the onset of Crawford's symptoms, including pain in his arm, together with Dr. Josey's testimony concerning the MRI results and his experience as an orthopedic surgeon, constitute a sufficiently reliable basis from which Dr. Josey could opine that the L5-S1 and C6-7 herniations were, in reasonable medical probability, caused by the accident and not by degeneration, the only other possible cause for Crawford's injuries that is suggested by the record. See Transcontinental Ins. Co., 330 S.W.3d at 218 (concluding that medical-causation expert reasonably ruled out possibility that patient died solely from other conditions based on objective evidence of patient's good health before injury, his contraction of infection at site shortly afterward, and deleterious effect of infection on patient's health).
The Loomis Defendants point out that "[n]o peer-reviewed, accepted methodology was offered as authority for the proposition that the type of forces involved in this accident were even capable of causing or, for that matter, aggravating a low-back herniated disk." While such testimony would certainly be probative of causation, we disagree that such evidence is necessary when other evidence, while perhaps not conclusive on the issue, sufficiently demonstrates that the opinion is reliable. See Transcontinental Ins. Co. v Crump, 330 S.W.3d 211, 218 (Tex. 2010) (noting that while expert testimony on medical causation was not conclusive, "it was not required to be").
In Transcontinental Insurance Co. v. Crump, the Texas Supreme Court analyzed the reliability of the diagnostic methodology known as "differential diagnosis." See id. at 216-19. In general, differential diagnosis is "a clinical process whereby a doctor determines which of several potential diseases or injuries is causing the patient's symptoms by ruling out possible causes—by comparing the patient's symptoms to symptoms associated with known diseases, conducting physical examinations, collecting data on the patient's history and illness, and analyzing that data—until a final diagnosis for a proper treatment is reached." Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 604-05 (Tex. App.—Houston [1st Dist.] 2002, pet. denied); see Transcontinental Ins. Co., 330 S.W.3d at 216 (citing same). The Supreme Court, applying the Robinson factors, noted that while differential diagnosis is generally considered reliable, application of the technique may prove too subjective to be reliable in certain cases, such as when there are several consistent, possible causes for a set of symptoms. See Transcontinental Ins. Co., 330 S.W.3d at 217.
Here, the Loomis Defendants do not assert that the differential-diagnosis method employed by Dr. Josey to determine the medical cause of Crawford's symptoms is an unreliable methodology, generally. Instead, the Loomis Defendants assert that Dr. Josey's testimony is unreliable because Dr. Josey failed to adequately exclude other potential causes for Crawford's conditions in his neck and back. Assuming without deciding that the record supports the conclusion that Crawford's disc herniations were plausibly caused by degeneration, we conclude that Dr. Josey adequately ruled out this cause. See JLG Trucking LLC v. Garza, 466 S.W.3d 157, 162 (Tex. 2015) (explaining that proponent of causation testimony is not required to negate other possible causes, unless evidence presents "other plausible causes of the injury or condition that could negated," quoting Transcontinental Ins. Co., 330 S.W.3d at 218).
Similarly, we conclude that Dr. Josey's testimony at the Robinson hearing and at trial was sufficient to support the conclusion that the Crawford's pinched nerve at L4-5 was caused by or made worse by the May 2012 accident. As the Loomis Defendants point out, Dr. Josey acknowledged that Crawford's stenosis at L4-5 was a result of degeneration and that Crawford's 1996 surgery on the L4-5 site had caused "significant" scar tissue to develop. Dr. Josey also, however, explained how traumatic forces could exacerbate this type of pre-existing condition and pointed out that Crawford did not begin experiencing symptoms from the pinched nerve until after the accident. The temporal proximity of the onset of Crawford's symptoms, together with Dr. Josey's testimony concerning the ability of an asymptomatic pinched nerve to become symptomatic as a result of injury, constitutes a sufficiently reliable basis from which Dr. Josey could opine that the L4-5 pinched nerve was, in reasonable medical probability, made worse by the May 2012 accident.
On the other hand, with respect to Crawford's remaining identified condition, the synovial cyst at L3-4, we conclude that Dr. Josey's testimony fails to provide a reliable basis to support his opinion that this condition was caused by the May 2012 accident. Dr. Josey told the jury that a synovial cyst is most often, though not always, caused by degeneration. Dr. Josey also acknowledged that Crawford's cyst did not appear on the MRI taken shortly before Crawford's 2013 surgery, and in fact, Dr. Josey estimated that the cyst did not develop until 2015 or 2016. Dr. Josey failed to explain how he had concluded that Crawford's cyst was likely the result of the May 2012 accident and not degeneration. Similarly, Dr. Josey did not explain how a synovial cyst could suddenly develop and necessitate a surgery four years after the traumatic event. Dr. Josey's testimony that Crawford's synovial cyst was caused by the accident is conclusory, fails to rise above the level of mere speculation, and will not support the judgment. See Pollock, 284 S.W.3d at 816 (opinion testimony that is conclusory or speculative is not relevant evidence and cannot support judgment). Accordingly, Dr. Josey's testimony constitutes no evidence that the accident was a proximate cause of Crawford's synovial cyst. Dr. Robert Cain , neurologist
At trial, Crawford also presented the expert testimony of Dr. Robert Cain, a neurologist with over 50 years of experience and specialization in neuroimaging. Dr. Cain testified that Crawford had been referred to him by Crawford's general practitioner for an evaluation of reported symptoms, including headaches, dizziness, tinnitus, difficulty concentrating, and memory loss. According to Dr. Cain, Crawford had also reported that he was experiencing "depression and anxiety," trouble sleeping, and diminished mental capacity. Dr. Cain explained to the jury that, based on Crawford's account of the nature of the accident and of his life before the accident, he determined that Crawford's symptoms began after the accident and that the symptoms were consistent with someone who had experienced a brain injury. Dr. Cain also told the jury about various tests and evaluations that were conducted, including an additional MRI, referred to as a "3T DTI MRI," of Crawford's brain. Dr. Cain testified that he had concluded that Crawford suffered a traumatic brain injury, post-concussive syndrome, post-traumatic memory loss, and reactive depression and that, to a reasonable medical probability, the May 2012 accident caused Crawford's brain injury and associated neurological symptoms.
Prior to trial, the Loomis Defendants moved to strike Dr. Cain's anticipated testimony, arguing that because Dr. Cain could not "rule out alternative causes for [Crawford]'s neurological and cognitive symptoms, there is no reliable basis for him to express any opinion that [Crawford's] symptoms were caused by, or are 'consistent with' the accident." In support of this argument, the Loomis Defendants attached the deposition testimony of Dr. Cain to its motion to strike. At the hearing on the motion, Crawford did not call Dr. Cain to testify in support of his expert testimony but instead relied on Dr. Cain's deposition testimony alone to establish that Dr. Cain's opinion was based on a reliable foundation.
In his deposition and during his testimony at trial, Dr. Cain explained that he had performed an evaluation of Crawford, including asking a series of questions to determine his neurological history and symptoms. As part of this evaluation, Crawford had recounted to Dr. Cain what he remembered from the accident, including the impact of the accident and striking his head on the back window. Dr. Cain also testified that he ordered and reviewed the results from lab work and from an encephelogram (EEG) to rule out other possible causes of some of Crawford's symptoms and that he performed a "Montreal Cognitive Assessment" on Crawford, the results of which "indicated significant problems with cognition." Dr. Cain then referred Crawford to another doctor, Dr. William Dailey, for additional neuropsychological testing. Dr. Dailey authored a report, which he forwarded to Dr. Cain, concluding that the results of his neuropsychological testing "were consistent with a persistent post concussive syndrome." Dr. Cain also reviewed the results of Crawford's 3T DTI MRI, which, in his opinion, revealed certain brain abnormalities "indicative of trauma to the brain." Finally, Dr. Cain stated that his opinion, based on reasonable medical probability, was that Crawford suffered a concussion in the accident and was now suffering from post-concussive symptoms.
On appeal, the Loomis Defendants assert that the trial court abused its discretion in permitting Dr. Cain to testify because Dr. Cain, in his deposition testimony, failed to exclude Crawford's sleep apnea as the cause of Crawford's diminished cognitive and emotional condition. Similarly, Loomis also asserts that because Dr. Cain failed to exclude plausible alternative causes, his opinion on causation is unreliable and constitutes no evidence. Based on the record before us, we conclude that Dr. Cain's testimony—presented in his deposition at the Robinson hearing and later at trial—adequately excluded, with reasonable medical certainty, sleep apnea as the medical cause of Crawford's neurological symptoms.
As the Loomis Defendants point out, Dr. Cain acknowledged during his deposition testimony that symptoms of diminished cognitive functioning and changes in mood, such as those experienced by Crawford, are also associated with sleep apnea. Dr. Cain also admitted that Dr. Dailey had, in fact, recommended that Crawford undergo a sleep study "based on his history of observed apnea spells" and that, as of the date of the deposition, this recommendation had not been followed. Nevertheless, Dr. Cain also explained during his deposition that he did not believe that sleep apnea was the likely cause of Crawford's symptoms because "it was not consistent" with the fact that "before the accident [Crawford] was functioning as a truck driver, he was the lead driver, he was gregarious." Dr. Cain explained that "[i]f [Crawford] had sleep apnea before [the accident], it wasn't affecting him greatly" and that, moreover, Crawford's wife had reported that Crawford's sleep apnea had improved, which Cain attributed to the swimming exercises that he had recommended.
The possibility of sleep apnea as the proximate cause of Crawford's neurological condition was also discussed during Dr. Cain's testimony at trial. Dr. Cain explained to the jury that a sleep study had been performed and that "Crawford had mild sleep apnea under the sleep study. He did not have moderate or severe sleep apnea." In addition, Dr. Cain explained that, according to Crawford and his wife, Crawford no longer suffers from sleep apnea at all and now "wakes in the morning and feels rested." Finally, Dr. Cain pointed out that even though Crawford's sleep apnea has resolved, Crawford's cognitive impairment persists.
Based on the evidence of Crawford's neurological condition before the accident, the onset of his reported neurological conditions after the accident, and the persistence of his neurological conditions despite the improvement of his sleep apnea, Dr. Cain was able to exclude, with reasonable medical certainty, Crawford's sleep apnea as the cause of Crawford's on-going neurological symptoms. Dr. Cain's testimony, both in his deposition and at trial, provided a sufficiently reliable basis to support his opinion that Crawford had suffered traumatic brain injury as a result of the May 2012 accident. Dr. David Levey , radiologist
The Loomis Defendants also point out that Dr. Cain acknowledged in his deposition that Crawford's 2012 MRI revealed "white matter changes" in the brain that are consistent with "small vessel ischemic disease" that occurs as part of normal aging. The Loomis Defendants argue that Dr. Cain's opinion is unreliable because he failed to exclude normal aging as the cause of Crawford's neurological symptoms. However, the record does not establish whether a patient with "small vessel ischemic disease" would also exhibit the neurological symptoms exhibited by Crawford, and there is no other evidence in the record suggesting that Crawford, in fact, was suffering from ischemic disease. Consequently, we cannot conclude that "small vessel ischemic disease" was a plausible alternative cause of Crawford's symptoms that Dr. Cain was required to exclude. See JLG Trucking LLC, 466 S.W.3d at 162.
Finally, the Loomis Defendants assert that the trial court erred in allowing the expert testimony of Dr. David Levey, a radiologist who testified to the findings of a MRI conducted on Crawford's brain. As they did with Dr. Cain, the Loomis Defendants, before trial, moved to strike Dr. Levey's anticipated testimony that the MRI findings show that Crawford suffered brain damage as a result of the accident. The Loomis Defendants attached the deposition testimony of Dr. Levey to their motion to strike, and at the hearing on the motion, Crawford opted to rely on Dr. Levey's deposition testimony to establish that his opinion is reliable. The trial court denied the Loomis Defendants' motion to strike Dr. Levey's testimony.
In his deposition testimony, which was also presented as his testimony at trial, Dr. Levey testified that Crawford was referred to him by Dr. Cain in 2015 for a "3T DTI MRI," which Dr. Levey described as "a brain MRI of high strength with a DTI protocol." Dr. Levey testified that the findings from the 3T DTI MRI showed that Crawford's brain was atrophied and that "there are mild and nonspecific primarily subcortical white matter changes bilaterally." Dr. Levey testified that the atrophy shown in Crawford's DT DTI MRI was not typical of a man Crawford's age and that he ruled out other potential causes and ultimately concluded, to reasonable medical probability, that Crawford had suffered closed-head trauma. Dr. Levey also explained that this diagnosis of closed-head trauma was consistent with Crawford's medical records and with Crawford's reported neurological symptoms, including lack of concentration, focus, coordination, and balance. Although Dr. Levey acknowledged that "white matter changes" can be found in people over the age of 60 who have not suffered trauma to the brain, he also explained that after comparing Crawford's earlier 2012 MRI to the results of the 3T DTI MRI, he discovered that Crawford's white-matter damage was accelerating, which according to Dr. Levey is "typical of trauma . . . rather than age-related white matter damage."
Based on our review of the record, we conclude that Dr. Levey's deposition testimony presented evidence from which a trial court could conclude, in its discretion, that Dr. Levey's opinion was sufficiently reliable. In addition, we conclude that Dr. Levey's testimony that Crawford suffered a closed-head trauma and that his symptoms are consistent with this diagnosis is not conclusory. In other words, Dr. Levey's testimony concerning his evaluation of the 3T DTI MRI results and of Crawford's medical history presents a sufficiently reliable basis to support his opinions on causation. B. Sufficiency of the Evidence Supporting the Jury's Finding on Causation
In light of our conclusion that most but not all of the expert testimony presented by Crawford was supported by a sufficiently reliable basis, we consider the Loomis Defendants' challenge to the sufficiency of the evidence supporting the jury's causation finding. That is, we examine whether there is legally and factually sufficient evidence to support the jury's finding that Crawford suffered compensable injuries as a result of the accident.
When evaluating a jury verdict for legal sufficiency, we view the evidence in the light most favorable to the judgment, crediting favorable evidence if a reasonable factfinder could, and disregarding contrary evidence unless a reasonable factfinder could not. City of Keller, 168 S.W.3d at 807. The test for legal sufficiency is whether the evidence at trial would enable reasonable and fair-minded jurors to reach the verdict. Whirlpool Corp., 298 S.W.3d at 638 (citing City of Keller, 168 S.W.3d at 807). When reviewing a verdict for factual sufficiency, we consider and weigh all of the evidence, not just the evidence that supports the verdict. Maritime Overseas Corp., 971 S.W.2d at 407. We may overturn a verdict for factual insufficiency only if it is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
Here, Question 1 of the charge asked the jury, in broad form, to determine "what sum of money, if paid now in cash, would fairly and reasonably compensate [Crawford] for his injuries, if any, that resulted from the occurrence in question?" The charge asked the jury to respond by assigning an amount of damages, if any, for each type of claimed damage, past and future. The jury was not asked to determine which of the complained-of injuries were caused by the accident or to assign damage awards on an injury-by-injury basis. By awarding any damages to Crawford, the jury necessarily found that at least some of the injuries for which Crawford sought compensation had "resulted from [the May 2012 accident]." Based on the evidence before us—including the testimony of Dr. Cain and of Dr. Levey, along with those portions of Dr. Josey's testimony that we have determined were properly admitted and competent—we conclude that the jury's finding on causation is supported by legally and factually sufficient evidence. C. Sufficiency of the Evidence Supporting the Jury's Award of Compensatory Damages
Next, we examine the jury's awards of compensatory damages. The jury responded to Question 1 of the jury charge by awarding to Crawford damages sustained in the past and damages that will be sustained in the future for physical pain, mental anguish, medical-care expenses, loss of earning capacity, and physical impairment. On appeal, the Loomis Defendants do not contend that Crawford failed to present sufficient evidence that he, in fact, suffered mental anguish, physical pain, or physical impairment, or that he likely would continue to experience mental anguish, physical pain, or physical impairment in the future. Likewise, the Loomis Defendants do not assert that Crawford failed to present sufficient evidence that he, in fact, incurred medical-care expenses and suffered loss of earnings in the amounts awarded by the jury or that he would continue to incur these economic expenses in the future. Instead, the Loomis Defendants' sole contention on appeal is that the "jury's damages awards, including all elements of future damages, as well as past and future medical expenses, were manifestly unjust" because the "the overwhelming weight of the evidence demonstrated that Crawford's medical conditions, symptoms, and treatments were not caused by the accident at all."
The Loomis Defendants' challenge is, in effect, a complaint that the amount of compensatory damages found by the jury are excessive, which we review under the factual-sufficiency standard. See Maritime Overseas Corp., 971 S.W.2d at 408 (noting that court of appeals had correctly analyzed amount of damages awarded for factual sufficiency); DeNucci v. Matthews, 463 S.W.3d 200, 214 (Tex. App.—Austin 2015, no pet.) (citing Rose v. Doctors Hosp., 801 S.W.2d 841, 847-48 (Tex. 1990)). We employ the same test for determining excessive damages as for any factual-sufficiency question, DeNucci, 463 S.W.3d at 214 (citing Pope v. Moore, 711 S.W.2d 622, 624 (Tex. 1986)), and will vacate a damage award or suggest a remittitur only if the evidence for the award is "so factually insufficient or so against the great weight and preponderance of the evidence as to be manifestly unjust," Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 30 (Tex. 1994) (quoting Pope, 711 S.W.2d at 624).
As previously discussed, we agree that Crawford failed to sufficiently demonstrate that all of his experts' opinions on the issue of causation were supported by a reliable basis. Specifically, we have concluded that Dr. Josey's testimony constitutes no evidence that Crawford's synovial cyst was a result of the May 2012 accident. Moreover, such expert testimony was necessary to establish a causal nexus between this condition and the accident. Nevertheless, based on our review of the record as a whole, we conclude that there is factually sufficient evidence to support the amounts of the jury's awards for mental anguish, physical pain, physical impairment, loss of earnings, and future medical care.
In limited cases, lay testimony may support a causation finding that links an event with a person's physical condition. Guevara v. Ferrer, 247 S.W.3d 662, 666 (Tex. 2007). This exception applies only "where both the occurrence and conditions complained of are such that the general experience and common sense of laypersons are sufficient to evaluate the conditions and whether they were probably caused by the occurrence." Id. (citing Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)). For example, expert testimony would not be necessary to support a finding of causation where the plaintiff was "pulled from a damaged automobile with overt injuries such as broken bones or lacerations, and undisputed evidence which reasonable jurors could not disbelieve showed that he did not have such injuries before the accident." Id. at 667. Disc herniations, synovial cysts, and pinched nerves are not within the general experience of laypersons. See City of Laredo v. Garza, 293 S.W.3d 625, 632-33 (Tex. App.—San Antonio 2009, no pet.) (concluding that lay testimony was not sufficient to prove medical causation of disc herniations and radiculopathy).
At trial, the jury heard evidence that Crawford suffered from mental anguish, physical pain, and physical impairment, as a result of the accident, and nothing in the record suggests that Crawford would not have suffered, or that he would have suffered significantly less, in the absence of the synovial cyst. See Bentley v. Bunton, 94 S.W.3d 561, 605 (Tex. 2002) (explaining that non-economic damages "cannot be determined by mathematical precision" and, accordingly, a jury is given latitude in awarding such damages). Similarly, the jury heard undisputed expert testimony from Gerald Casenave, a vocational-economic analyst, that Crawford's physical and neurological impairments rendered him "totally disabled," and nothing in the record suggests that Crawford's impairments would not have existed or that his earning capacity would not have been diminished in the absence of the synovial cyst. Finally, Crawford presented expert testimony from Eduardo Elizondo, M.D., a certified life-care planner, who opined to the medical expenses that Crawford would likely incur in the future. According to Elizondo's testimony, the total cost of Crawford's anticipated future medical needs, even without the 2016 surgery to remove the synovial cyst, would be in an amount in excess of the $200,000 that was awarded by the jury. See Finley v. P.G., 428 S.W.3d 229, 233 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (explaining that "Texas law does not require absolute certainty before [future medical expenses for personal injuries] may be awarded" and that "'an award of future medical expenses . . . lies largely within the factfinder's discretion,'" citing Marquette Transp. Co. Gulf-Inland, LLC v. Jackson, No. 01-10-01025-CV, 2012 WL 1454476, at *12 (Tex. App.—Houston [1st Dist.] Apr. 26, 2012, no pet.) (mem. op.)). Therefore, even accounting for the fact that the jury could not properly attribute all of the medical conditions claimed by Crawford to the accident, we conclude that the evidence presented at trial was factually sufficient to demonstrate that the amounts awarded by the jury for these damages are reasonable. See Maritime Overseas Corp., 971 S.W.2d at 407 (explaining that court of appeals conducting factual-sufficiency review "is not required to detail all the evidence supporting the judgment when it affirms the trial court's judgment for actual damages").
According to Dr. Elizondo, Crawford's projected future medical expenses after the surgery to correct the synovial cyst would be $359,556.50. According to his testimony, this includes an additional "fusion" surgery, estimated to cost $109,126.22, to "stabilize those [vertebrae] segments." The jury awarded $200,000 in future expenses for medical care.
We cannot conclude, however, that there is factually sufficient evidence to support the full amount of past medical-care expenses awarded by the jury, $168,409. At trial, Crawford presented his medical bills into evidence, accompanied by an affidavit establishing their authenticity and the reasonableness and necessity of the expenses incurred in treating his complained-of medical conditions. See Tex. Civ. Prac. & Rem. Code § 18.001 (allowing for affidavit to establish reasonableness of charges and necessity of services). These medical bills show that Crawford incurred medical expenses in the amount of $27,856.88 for the 2016 surgery to remove the synovial cyst at L3-4, a condition which Crawford failed to link to the May 2012 accident.
When there is some evidence of damages but not enough to support the full amount awarded, we may either suggest a remittitur or remand to the trial court for a new trial. See DeNucci, 463 S.W.3d at 215 (citing Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. National Dev. & Research Corp., 299 S.W.3d 106, 124 (Tex. 2009)). The party prevailing in the trial court must be given the option of accepting the remittitur or having the case remanded for a new trial. Springs Window Fashions Div., Inc. v. Blind Maker, Inc., 184 S.W.3d 840, 889-90 (Tex. App.—Austin 2006, pet. granted, judgm't vacated w.r.m.). In this case, the evidence is sufficient to support an award of "medical expenses incurred in the past" but is insufficient to support the entire amount found by the jury. Accordingly, we suggest a remittitur decreasing the award of "medical expenses incurred in the past" by $27,856.88. See Tex. R. App. P. 46.3.
II. Challenges to Trial Court's Evidentiary Rulings
In issues two, three, five, and six, the Loomis Defendants complain that the trial court "erred" in admitting various objected-to evidence at trial. Because the propriety of the trial court's rulings on these evidentiary objections informs our analysis of the sufficiency of the evidence supporting the jury's finding of gross negligence, we consider these issues next.
As an appellate court, we review a trial court's decision to admit evidence for an abuse of discretion. See Service Corp. Int'l v. Guerra, 348 S.W.3d 221, 235 (Tex. 2011); HealthTronics, Inc. v. Lisa Laser USA, Inc., 382 S.W.3d 567, 579 (Tex. App.—Austin 2012, no pet.) A trial court abuses its discretion when it rules without regard for any guiding rules or principles. Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). We must uphold a trial court's evidentiary ruling if there is any legitimate basis in the record to support it. Id. In addition, we will not reverse a trial court for an erroneous evidentiary ruling unless the error probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1 (reversible error in civil cases). We review the entire record and require the complaining party to demonstrate that the judgment turns on the particular evidence admitted. See Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004).
In two related issues on appeal, the Loomis Defendants assert that the trial court erred in admitting certain evidence of Crawford's damages because Crawford's medical experts (Dr. Cain, Dr. Levey, and Dr. Josey) had failed to establish that Crawford's complained-of injuries were caused by the May 2012 accident. As previously discussed, Crawford presented the testimony of Casenave, a vocational economist who testified to Crawford's loss of earning capacity, and the testimony of Elizondo, a life-care planner who testified to the anticipated costs of Crawford's future medical needs. Prior to trial, the Loomis Defendants objected to the relevancy of the anticipated testimony of Casenave and Elizondo because, according to the Loomis Defendants, "[Dr. Cain, Dr. Levey, and Dr. Josey] had no reliable basis [to testify] that the accident caused the many symptoms Crawford alleged were 'permanent.'" The Loomis Defendants argue on appeal that the trial court erred in overruling its relevancy objection and allowing the testimony of Casenave and Elizondo because "[a]bsent evidence of a causal link [between Crawford's complained-of conditions and the May 2012 accident], the testimony of [Crawford's] economist and life care planner was irrelevant and overly prejudicial." In a separate issue, the Loomis Defendants similarly assert that the trial court erred in allowing, over their objection to relevancy, the admission of Crawford's collective medical bills, exhibit 7. The Loomis Defendants argue that the medical bills were irrelevant "because there was no evidence of any causal link to the accident."
The Loomis Defendants do not assert that the testimony of Casenave and Elizondo is unreliable or inadmissible under Rule 702 of the Rules of Evidence, only that the testimony is irrelevant under Rule 401.
Rule 401 of the Texas Rules of Evidence provides that "relevant evidence" is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. Whether Crawford was entitled to damages and, if so, in what amount, were issues to be determined at trial. Evidence that Crawford incurred medical bills, that he suffered loss of earnings, and that he would continue to incur medical bills and suffer loss of earnings in the future all relate to "facts of consequence" to the determination of damages at trial. The trial court did not abuse its discretion in overruling the Loomis Defendants' relevancy objections to Casenave's testimony, Elizondo's testimony, and Crawford's medical bills.
Alternatively, the Loomis Defendants assert that the relevancy of the testimony of Casenave and Elizondo is "substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury." See Tex. R. Evid. 403. Because Loomis never presented this argument to the trial court, it is not properly preserved for our consideration on appeal. See Tex. R. App. P. 33.1(a)(1)(A). However, even if it were properly preserved, we would conclude that the trial court could have reasonably determined that the probative value of the testimony was not substantially outweighed by any danger under Rule 403.
In addition, the Loomis Defendants assert that the trial court erred in overruling their hearsay objections and admitting the expert reports authored by Casenave and Elizondo. The Loomis Defendants complain that Crawford's counsel "covered the irrelevant hearsay reports in detail during the testimony of Casenave and Elizondo" and, in fact, Casenave "took the jury through his report, detailing his assumptions, forecasts for future lost earnings, and the effect of 'future impairment' and 'disability' on Crawford."
In response, Crawford asserts that the trial court did not abuse its discretion because the document is not an "expert report" at all, but a summary of Casenave's testimony that was properly admitted under Texas Rule of Evidence 1006. Rule 1006 of the Texas Rules of Evidence provides that:
The proponent may use a summary, chart, or calculation to prove the contents of voluminous writings, records, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.Tex. R. Evid. 1006 (summaries to prove content). A summary is admissible under Rule 1006 over a hearsay objection if the proponent of the summary establishes that the underlying documents are admissible under one of the exceptions to the hearsay rule. See City of Dallas v. GTE Sw., Inc., 980 S.W.2d 928, 935 (Tex. App.—Fort Worth 1998, pet. denied) (describing Rule 1006 as exception to hearsay rule and concluding that trial court did not abuse its discretion in excluding document that contained expert opinions). While Rule 1006 allows for the admission of a summary of "writings, records, or photographs," the Rule does not specifically provide for the admission of a summary of testimony. See Tex. R. Evid. 1006.
Nevertheless, based on the record before us, we conclude that even assuming without deciding that the trial court erred in admitting the expert reports over the Loomis Defendants' hearsay objection, any such error would not warrant a reversal of the judgment. See Tex. R. App. P. 44.1(a). As the Loomis Defendants acknowledge, the content of each report was discussed in detail and substantially tracked the authoring expert's testimony at trial. Because the content of the challenged reports was merely cumulative of other evidence presented, the trial court's admission of the reports, even if erroneous, was harmless. See Nissan Motor Co., 145 S.W.3d at 144 ("Clearly, erroneous admission [of evidence] is harmless if it is merely cumulative.").
Having concluded (1) that the trial court did not abuse its discretion in admitting Casenave's testimony, Elizondo's testimony, or Crawford's collective medical bills over the Loomis Defendants' relevancy objections and (2) that any error committed by the trial court in admitting the expert reports of Casenave and Elizondo was harmless, we overrule issues two and three.
In issues five and six, the Loomis Defendants assert that "the trial court erred in admitting evidence of Defendants' negligence when negligence had already been stipulated." According to the Loomis Defendants, the trial court "overruled Defendants' objections and admitted numerous irrelevant exhibits, including the drive cam video, photos of the vehicles, the police reports, the driver's written statements and exhibits regarding Loomis policies and training about 'eating while driving' and 'distracted driving.'" The Loomis Defendants also assert that the trial court erred in admitting certain portions of the deposition testimony of Williams and of the deposition testimony of Randall Sheltra, Loomis Vice President of Safety. The Loomis Defendants argue that the "deposition testimony of Williams and Sheltra was, in light of the stipulation of liability, completely irrelevant" and was "offered . . . solely to inflame the jury." We construe these issues as a complaint that the trial court abused its discretion in admitting these pieces of evidence over the Loomis Defendants' objections to relevancy, see Tex. R. Evid. 401, and over their objections that any probative value of the evidence "is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence," see id. R. 403.
Based on the record before us, we cannot conclude that the trial court abused its discretion in admitting the objected-to evidence. In general, the challenged evidence is probative of the conditions that existed at the time of accident, how the accident occurred, and the physical damage that was sustained as a result of the accident. In addition, much of the challenged deposition testimony of Williams and Sheltra is probative of what Williams knew about the risks, if any, posed by his actions. Crawford asserts, and we agree, that this evidence was relevant to the issue of whether Williams was grossly negligent in his operation of the armored truck, see Tex. Civ. Prac. & Rem. Code § 41.001(11) (defining "gross negligence"), and the trial court could have reasonably concluded that the probative value of this evidence was not outweighed by any danger of unfair prejudice, see Tex. R. Evid. 403. That is, the trial court could have reasonably concluded that the evidence did not, as the Loomis Defendants assert, unfairly suggest that Loomis was "a 'big corporation' [that] was not accepting responsibility 'for what it caused.'" Moreover, to the extent any portion of the objected-to evidence is not relevant to the issue of William's gross negligence, we conclude that any error in the admission of this evidence is harmless. See Tex. R. App. P. 44.1.
As discussed later in this opinion, "gross negligence" means an act or omission:
(A) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; andTex. Civ. Prac. & Rem. Code § 41.001(11).
(B) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, and welfare of others.
For example, the Loomis Defendants complain that the trial court erred in allowing Crawford to present deposition testimony (1) in which Williams stated that Loomis was "a defendant," that he was a "professional driver," that everyone on the road "depends" on him, and that he did not "log hours," and (2) in which Sheltra refused to agree that "it would only be right if Loomis picked up the tab for [Crawford's medical expenses]" and testified that he did not personally know how Williams was trained.
Issues five and six are overruled.
III. Challenge to Jury's Finding of Gross Negligence and Award of Exemplary Damages
Finally, we turn to the Loomis Defendants' challenge to the jury's award of exemplary damages against Williams. The Loomis Defendants assert that the jury erred in awarding any exemplary damages because, according to the Loomis Defendants, there is no evidence to support the jury's finding that "the harm to [Crawford] resulted from gross negligence."
In reviewing an award for exemplary damages, we conduct a legal sufficiency review under the "clear and convincing" evidence standard. U-Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012). That is, we "look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 609 (Tex. 2004) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). If, after conducting our legal-sufficiency review of the evidence, we determine that no reasonable factfinder could have formed a firm belief or conviction that the matter that must be proven is true, we must conclude that the evidence is legally insufficient. Id.
Exemplary damages may be awarded if a claimant establishes "by clear and convincing evidence that the harm with respect to which the claimant seeks recovery of exemplary damages results from . . . gross negligence." Tex. Civ. Prac. & Rem. Code § 41.003(a). "'Clear and convincing' means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Id. § 41.001(2). "Gross negligence" consists of both objective and subjective elements, see Lee Lewis Constr., Inc. v. Harrision, 70 S.W.3d 778, 785 (Tex. 2001), and is defined by statute as an act or omission:
(A) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; andTex. Civ. Prac. & Rem. Code § 41.001(11).
(B) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, and welfare of others.
Under the objective component, the act or omission complained of must depart from the standard of ordinary care to such an extent that it creates an extreme degree of risk of harming others. Lee Lewis Constr., 70 S.W.3d at 784-86. A determination of whether an act or omission involves extreme risk "requires an examination of the events and circumstances from the viewpoint of the defendant at the time the events occurred, without viewing the matter in hindsight." Moriel, 879 S.W.2d at 23. Extreme risk is "not a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff." Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998). Evidence of simple negligence alone is not enough to establish gross negligence. North Am. Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 128 (Tex. App.—Beaumont 2001, pet. denied); see Moriel, 879 S.W.2d at 21 ("An act or omission that is merely thoughtless, careless, or not inordinately risky cannot be grossly negligent.").
At trial, the jury was presented with evidence regarding how the accident occurred, including video taken from a camera attached to the dashboard of the Loomis armored truck. The undisputed evidenced established that it was raining as Williams drove the armored truck, weighing approximately 12,500 pounds to 15,000 pounds, while eating sunflower seeds. For reasons not entirely clear from the record, as Williams approached the intersection, he looked away from the road and down to the floorboard of his truck for a second. When Williams looked up, he applied the brakes but was unable to prevent the armored truck from colliding with the back of Crawford's pickup truck, which was already stopped at a red light. In his deposition testimony presented at trial, Williams acknowledged that he was distracted at the time of the collision and not looking ahead and that he knew that distracted driving was unsafe. Nothing in the record, however, suggests that Williams was speeding as he approached the intersection or that he was driving at an unsafe distance, aggressively, or erratically before looking down.
Williams denied that he was distracted as a consequence of eating sunflower seeds and initially claimed that the accident occurred when his foot had slipped off the brake. In his deposition testimony presented at trial, Williams asserted that he was looking down to adjust the floor mat that had "moved under [his] feet."
There can be no dispute that the evidence would be sufficient to support a finding that Williams was negligent in his operation of the armored truck, even if the Loomis Defendants had not stipulated to this fact. However, based on the record before us, we cannot conclude that Williams's conduct posed an extreme degree of risk such that a reasonable factfinder could form a firm belief or conviction that Williams was grossly negligent. See Boerjan v. Rodriguez, 436 S.W.3d 307, 312 (Tex. 2014) (concluding that evidence that truck was "coming behind" for "quite a bit of time" created, at most, an inference that vehicle was following truck and was no evidence of risk that would give rise to gross negligence); see Emmons, 50 S.W.3d at 128 (van driver's failure to observe that car in front had stopped, resulting in rear-end collision, was "thoughtless or careless" but not "malicious or grossly negligent"). Because the evidence is legally insufficient to support the jury's finding of gross negligence, we sustain the Loomis Defendants' eighth issue on appeal.
Because we conclude that Crawford failed to present legally sufficient evidence at trial to support the objective element of gross negligence, we need not consider the Loomis Defendants' alternative argument that "there is no evidence that Williams had a subjective awareness that any of his actions created an extreme risk." See Tex. R. App. P. 47.1.
CONCLUSION
We reverse that portion of the trial court's judgment awarding Crawford exemplary damages against Williams and render judgment that Crawford take nothing on this claim.
We affirm that portion of the trial court's judgment awarding Crawford compensatory damages, conditioned on Crawford's filing a remittitur in the trial court within thirty days of the date of this opinion, reducing the award of "medical expenses incurred in the past" by $27,856.88. If the remittitur is filed within thirty days of the date of this opinion, we will reform the trial court's judgment and affirm as reformed. See Tex. R. App. P. 46.3. Otherwise, we will reverse the trial court's judgment as to "medical expenses incurred in the past" and remand this cause for a redetermination of these damages.
/s/_________
Scott K. Field, Justice Before Justices Puryear, Field, and Bourland Affirmed in part, Conditioned on Remittitur; Reversed and Rendered in part Filed: March 2, 2018