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Amigos Meat Distributors, L.P. v. Guzman

Court of Appeals of Texas, First District

May 11, 2017


         On Appeal from the 295th District Court Harris County, Texas Trial Court Case No. 2013-25098

          Panel consists of Chief Justice Radack and Justices Brown and Lloyd.


          Sherry Radack, Chief Justice

         This is an appeal from an award on a jury verdict in favor of an employee against his non-workers' compensation subscriber employer.


         Appellee Julian Guzman went to work as a truck driver for appellant Amigos Meat Distributors in 2008. As part of his job, he had to lift and carry frozen animal carcasses. In May 2011, Guzman was injured lifting a 175-pound frozen cow carcass. He and his wife, appellee Catherine Montejano, sued Amigos, a worker's compensation non-subscriber.

         The jury found that Amigos's negligence proximately caused Guzman's injury, and awarded to him $287, 809.94 in past medical expenses, $150, 000 in past pain and mental anguish, and $150, 000 in past physical impairment. The trial court entered judgment on that verdict.

         Amigos does not challenge the jury's negligence finding on appeal. It challenges the damages findings, however, contending that (1) the medical expenses awarded are not supported by legally sufficient evidence of causation, and (2) Guzman was impermissibly awarded more damages than those "paid or incurred." Amigos also asserts Guzman's attorney made improper statements during closing argument appealing to the jury's prejudices against a corporate employer in favor of a worker, introducing incurable error into the trial.

         We affirm.


         On May 6, 2011, Guzman's supervisor, Humberto Arellano, told Guzman to unload three frozen cow carcasses from an 18-wheeler truck. Guzman followed the procedure he learned from watching others at Amigos, i.e., he wrapped his arms around the carcass, lifted it upward off the hook suspending it from the ceiling, shifted the carcass onto one shoulder, walked off the truck, bent over while turning, and laid the carcass down. Guzman lifted and carried the first two carcasses without incident. As he started to lift the third carcass, which bore a tag indicating it weighed 175 pounds, off the hook, Guzman "felt something like snap, pain and burning sensation in [his] lower back." He testified that the pain in his lower back was immediate. He began walking with the carcass, still feeling a burning sensation in his lower back. Then his legs started to give way, "like gelatin or something, " and he dropped the carcass.

         Guzman testified that Arellano had witnessed this incident, and Guzman told him, "I think I hurt myself. I can't feel my legs." Guzman dropped to the ground, and Arellano had to help him load the last carcass onto a pallet. Despite Guzman telling Arellano that he was injured, and that he could not shake it off, Arellano told Guzman that he needed to go make his deliveries. Amigo then assigned Guzman a helper, a young teenager. The helper was small and unable to do most of the lifting, so Guzman was expected to continue doing so himself.

          Before his May 6, 2011 injury, Guzman had never experienced any problems with his back and had never been injured at work. Guzman's wife Montejano testified that, on the evening of May 6, Guzman came home from work in pain. The following day, he could not get out of bed without his brother's help. His family took him to see Dr. Arango, a chiropractor. Arango's records contain the following notes:

During the initial consultation, Mr. Julian Guzman stated that he injured his low back secondary to a work-related injury which took place on 5/6/11. The patient reports that he lifted a steer carcass and experienced low back pain. At the moment he felt he was going to collapse due to pain, the patient reported it to his supervisor and was asked to only drive along with a helper. Mr. Guzman finished the day worse and went home. Today he decided to seek care in our clinic.
. . . .
From the evaluation of Mr. Guzman's history, subjective complaints and the objective findings from orthopedic, neurologic and radiographic examinations, it is evident from a chiropractic viewpoint, that this type of injury would have resulted from the type of work related injury this patient suffered on 05/06/11.

         Arango provided Guzman with a disability certificate that day, which stated he was "totally incapacitated." Guzman presented that at work. Francisco Moreno, Amigos's manager or owner, told Guzman to call when he needed anything, and that he "was one of the best workers there so they were going to take care of" him. On May 11, 2011, Arango reclassified Guzman as "partially incapacitated, " and indicated that he was restricted to light duty.

          Because Arango thought Guzman might recover with conservative chiropractic care, Guzman had his back injury treated with physical therapy, chiropractic care, and epidural steroid injunctions. He did not get better, and began to get overwhelmed by the constant doctor's appointments. He had to take pain medications three times a day.

         True to its promise, Amigos paid Guzman's medical bills for the first three months after his injury. Amigos discontinued payments in August 2011. Amigos did not let Guzman know, but refused payment to Dr. Chanani, his pain management doctor for several scheduled spinal injections.

         When Guzman visited Amigos's office in August 2011, Amigos's management showed him a video, obtained by a private investigator, of Guzman carrying a laundry basket. Amigos then told him that they would no longer pay his medical bills and terminated his employment. Both Guzman and his wife testified that he had carried the laundry basket because his doctor had ordered him to try walking for five or ten minutes per day and ease into lifting.

         For the next two years, Guzman regularly went to Ben Taub Hospital and various doctors. At one point, Ben Taub placed him on suicide watch after he reported, "I can't bear the pain. I just want to kill myself." Montejano, Guzman's wife, testified that Guzman was constantly in pain after his May 6, 2011 injury. He was diagnosed with depression, constantly took prescription pain pills, and ceased his daily involvement with their children.

         On October 30, 2013, Guzman first visited Doctor Reynolds, a surgeon Guzman was referred to by another doctor who believed Guzman might require surgical intervention. Reynolds discussed with him his options and possible outcomes for each. Reynolds did not recommend Guzman first pursue more conservative, non-surgical treatments because Guzman had already tried the things Reynolds would recommend, i.e., physical therapy and steroid injections. Although Guzman was hesitant, he ultimately opted to have surgery. Reynolds testified that Guzman and his wife expressed that they were both concerned about how his pain was affecting his psyche and life, and he wanted to return to work.

         On May 8, 2014, Reynolds performed surgery, described as discectomy and a fusion with some placement of hardware, at Guzman's L4-5 disc. When asked about the causal links between Guzman's workplace injury, his back pain, and the need for surgery, Reynolds testified-based on a reasonable medical probability- that the May 6, 2011 injury caused Guzman a significant amount of pain that persisted. He also testified that, based on the MRI images he reviewed, Guzman had some preexisting damage to the L4-5 disc. While it is impossible to tell from MRI imaging when and how the damage to Guzman's disc was caused, Reynolds noted that, based on Guzman's medical history, any preexisting damage was asymptomatic. Thus, Reynolds opined that the May 6, 2011 lifting injury caused a symptomatic injury and caused the ongoing pain that persisted after that date.

         Guzman was told that his activities would be restricted for about eighteen months, but he testified that he felt better almost immediately post-surgery. He was able to walk without the assistance of a cane for the first time since being injured. Within a month, he went to work at a Subway sandwich restaurant, which he was still doing at the time of the September 2015 trial. While he still had lingering issues, such as not being able to stand for too long and not being able to bend down to tie his shoes, Guzman testified that his life was greatly improved.

         A. Causation

         The judgment awards Guzman $287, 809.94 in past medical expenses. In its first issue, Amigos contends that these expenses were "unrecoverable as a matter of law" because Guzman "fail[ed] to provide the requisite causation evidence."

         1. Applicable Law and Standard of Review

         "To establish causation in a personal injury case, a plaintiff must prove the defendant's conduct caused an event, and that event caused the plaintiff to suffer compensable damages." Hospadales v. McCoy, No. 01-16-00239-CV, __ S.W.3d __, __, 2017 WL 117327, at *8 (Tex. App.-Houston [1st Dist.] Jan. 12, 2017, no pet.) (citing Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)). The causal link between the event sued upon and the plaintiff's injury must be shown by competent evidence. Guevara v. Ferrer, 247 S.W.3d 662, 666 (Tex. 2007). "The causal connection between a defendant's negligence and a plaintiff's injuries cannot be based on mere conjecture, speculation, or possibility." Hospadales, __ S.W.3d at __, 2017 WL 117327, at *8 (citing Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995)). When a plaintiff claims damages for a medical condition, the cause of which is not within the common knowledge and experience of jurors, expert testimony is necessary to show the defendant's conduct caused that condition. JLG Trucking, LLC v. Garza, 466 S.W.3d 157, 162 (Tex. 2015).

         To constitute evidence of causation, a medical expert's opinion must rest in reasonable medical probability. Crye, 907 S.W.2d at 500; LMC Complete Auto., Inc. v. Burke, 229 S.W.3d 469, 478 (Tex. App.-Houston [1st Dist.] 2007, pet. denied). However, a plaintiff, "is not required to establish causation in terms of medical certainty nor is he . . . required to exclude every other reasonable hypothesis." Bradley v. Rogers, 879 S.W.2d 947, 954 (Tex. App.-Houston [14th Dist.] 1994, writ denied). "Whether expert testimony on causal connection rests upon reasonable medical probability must be determined by the substance and context of the testimony rather than semantics or use of a particular term or phrase." Thompson v. Stolar, 458 S.W.3d 46, 57 (Tex. App.-El Paso 2014, no pet.) (citing Crye, 907 S.W.2d at 500).

          Evidence is legally sufficient if it "would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We will conclude that the evidence is legally insufficient to support the finding only if (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. Id. at 810. When reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the verdict and indulge every reasonable inference to support it. Id. at 822. We credit favorable evidence if a reasonable juror could and disregard contrary evidence if a reasonable juror could not. Id. at 827.

         2. Analysis

         Amigos argues that Guzman "failed to supply the evidence necessary to create the required causal connection between those surgery-related, 2014 medical expenses awarded, and the 2011 incident sued upon." It focuses on excerpts from Dr. Reynolds's deposition, which was not introduced into evidence but attached to Amigo's motion for new trial, stating that Guzman likely had a preexisting back condition that necessitated surgery.

          Preliminarily, Guzman responds with the observation that excerpts from Reynolds's deposition upon which Amigos relies upon was not entered into evidence, and that Amigos has not complained about its exclusion on appeal. Guzman also contends that Amigos's causation argument does not comport with the applicable standard of review, as Amigo ignores Reynolds's trial testimony that sufficiently demonstrated a causal link between Guzman's 2011 injury and his 2014 surgery. Finally, Guzman points out that (1) Reynolds operated to address Guzman's pain, not his preexisting asymptomatic disc degeneration, (2) Reynolds testified that Guzman's back pain was caused by his workplace lifting injury, and (3) under Texas law, medical expenses caused by injury aggravation of a preexisting condition are compensable. We agree with Guzman that he presented sufficient evidence of causation.

         As Guzman notes, Amigos's brief focuses on Reynolds's statements about MRI film of Guzman's back from different periods indicating that Reynolds could not determine when Guzman's disc degeneration had taken place. Importantly, though, Reynolds testified that Guzman's medical history largely informed his causation opinion that whatever preexisting condition existed before May 6, 2011 was asymptomatic, and that, immediately after the May 6, 2011 injury, Guzman suffered constant and severe pain until it was remedied by his back surgery.

          We recently considered, and rejected, a causation argument similar to Amigos's. In Hospadales v. McCoy, the defendant argued that the evidence was insufficient to establish that plaintiff's back and neck injuries were caused by a 2013 automobile accident at issue rather than by a 2010 automobile accident. __ S.W.3d at __, 2017 WL 117327, at *3-4. The defendant relied heavily on the fact that the "MRIs taken of [plaintiff's] back and neck, following the 2010 accident, showed essentially the same injuries as those indicated in the MRIs taken following this [2013] accident." Id. The plaintiff, however, testified that he had recovered from his injuries from the 2010 accident before the 2013 accident, and that it was the 2013 accident that caused the pain that caused him to have surgery. Id.

         Plaintiff's expert in Hospadales, Dr. Rodriguez, testified that, "based on a reasonable degree of medical probability, the 2013 accident aggravated [plaintiff's] preexisting injuries in his lower back and neck." Id. We concluded that Rodriguez's causation opinion, based largely on the asymptomatic nature of plaintiff's preexisting condition prior to the 2013 accident-in conjunction with plaintiff's testimony about the 2013 accident and the pain he suffered only afterwards-was sufficient to establish causation:

Rodriguez reviewed [plaintiff's] past medical records relating to his back and neck injuries. These included the MRI report related to the back and neck injuries [plaintiff] sustained in the 2010 accident. Dr. Rodriguez acknowledged that the MRI findings from 2013 indicated nearly the same injuries as the 2010 MRI. However, Dr. Rodriguez explained that "we don't treat MRIs." He continued, "The MRIs are done to help us rule out problems or be assertive of diagnosis, but we always treat the patient." Dr. Rodriguez testified that [plaintiff] was "asymptomatic before this accident and his symptoms are the ones that objectively indicates that he has an aggravation of a previous injury based on the MRIs." In other words, Dr. Rodriguez testified that, while MRIs are used as a diagnostic tool, what the patient reports is also important in diagnosing and treating a patient.
Here, [plaintiff] reported that, before the 2013 accident, he was no longer experiencing any back or neck problems from the 2010 accident. However, after the 2013 accident, McCoy reported experiencing back and neck pain. This indicated to Dr. Rodriguez that the report of new symptoms following the 2013 accident supports the conclusion that the accident aggravated McCoy's previous injuries from 2010.

. . . .

We therefore hold that Dr. Rodriguez's causation testimony was legally sufficient.


         The Fourteenth Court of Appeals also recently considered, and rejected, an argument essentially identical to Amigos's here. In Katy Springs & Manufacturing, Inc. v. Favalora, the plaintiff suffered an on-the-job injury that he testified caused long-term chronic neck pain and numbness in his arm. 476 S.W.3d 579, 587 (Tex. App.-Houston [14th Dist.] 2015, pet. denied). Similar to Guzman's testimony here, the plaintiff in Favalora explored conservative treatments for his pain, including epidural steroid injections, and prescription pain medications. See id. Finally, almost three years after the injury, the plaintiff in Favalora had back surgery. See id. A jury awarded him damages from his employer, a non-subscriber to workers' compensation insurance. Id. On appeal, his employer argued that the evidence of causation was legally insufficient and that the plaintiff's injuries were preexisting. Id. at 587, 591-92. The Fourteenth Court of Appeals disagreed, ...

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