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Mauricio v. Cervantes

Court of Appeals of Texas, Fourth District, San Antonio

June 28, 2017

Mario MAURICIO, Appellant
v.
Sorayda CERVANTES, Appellee

         From the 131st Judicial District Court, Bexar County, Texas Trial Court No. 2013-CI-07395 Honorable Michael E. Mery, Judge Presiding

          Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice

          MEMORANDUM OPINION

          Rebeca C. Martinez, Justice

         This is an appeal from a judgment awarding damages for injuries sustained in an automobile accident. Appellant contends the jury's verdict on damages is against the great weight and preponderance of the evidence and that incurable jury argument resulted in an improper verdict. We affirm the judgment of the trial court.

         Background

         On February 11, 2012, appellant, Mario Mauricio, and appellee, Sorayda Cervantes, were both driving in a parking lot when a collision occurred between their vehicles. As a result, Mauricio suffered lower back and neck injuries, and his forearm and finger were also injured when the airbag deployed. Mauricio was treated by a chiropractor and a pain management doctor. Cervical and lumbar MRIs showed herniated discs. Mauricio received an epidural steroid injection in his lower back, to which he responded very well. He also received three epidural steroid injections in his neck, but continued to have persistent neck pain with progressive radiculopathy, i.e., numbness and tingling in his right arm and left hand and muscle weakness. In mid-October 2012, the pain management doctor referred him to a neurosurgeon.

         But before he could see the surgeon, Mauricio was involved in a second automobile accident when he was rear-ended by Aureliano Marin on December 31, 2012. A cervical MRI conducted after the second accident showed that the disc herniation in Mauricio's neck had increased. In June 2013, Mauricio underwent neck surgery.

         Mauricio sued Cervantes and Marin for damages, but upon Cervantes's motion, the claims against Marin were severed into a separate suit and were eventually settled. The Cervantes lawsuit was tried to a jury, who found Mauricio 45% responsible for causing the accident and Cervantes 55% responsible. The jury awarded Mauricio $1, 400 for past physical pain, $2, 500 for past physical impairment, $24, 000 for past medical expenses, $3, 300 for past lost earnings, and $3, 000 for past disfigurement. The jury found no mental anguish damages and awarded nothing for future damages. The trial court rendered judgment consistent with the jury's verdict for a total damages award of $31, 469.64, including prejudgment interest and court costs. Mauricio filed a motion for new trial, which was denied by the trial court.

         On appeal, Mauricio contends the jury's failure to award the following damages is against the great weight and preponderance of the evidence: (1) future disfigurement and future physical impairment; (2) past and future mental anguish; and (3) the full amount of past medical care expenses. In addition, he contends that a reference made to the settled lawsuit during closing arguments constituted incurable jury argument.

         Damages

         Sufficiency: Standard of Review

         "When a party attacks the factual sufficiency of an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence." Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). "The court of appeals must consider and weigh all of the evidence, and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust." Id. In conducting a factual sufficiency review, a reviewing court "must not merely substitute its judgment for that of the jury." Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).

         In setting the amount of damages, the jury has great discretion. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986); see also Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 566 (Tex. 2002) ("In determining damages, the jury has discretion to award damages within the range of evidence presented at trial."). A jury is "not tied to awarding damages exactly as requested by the injured party." MEMC Pasadena, Inc. v. Riddle Power, LLC, 472 S.W.3d 379, 408 (Tex. App.- Houston [14th Dist.] 2015, no pet.). The jury must judge the credibility of the witnesses, assign the weight to be given to witness testimony, and resolve any conflicts or inconsistencies in the evidence. Barrajas v. VIA Metro. Transit Auth., 945 S.W.2d 207, 209 (Tex. App.-San Antonio 1997, no writ). When confronted with conflicting evidence, the jury may believe one witness and disbelieve another. Golden Eagle Archery, 116 S.W.3d at 774-75; McGalliard, 722 S.W.2d at 697. The jury is not bound by expert testimony on the amount of damages, and it may disregard physician testimony on both the necessity of treatment and the causal relationship between the accident and the plaintiff's injuries, even if that testimony is not contradicted. McGalliard, 722 S.W.2d at 697; Barrajas, 945 S.W.2d at 209.

         The Evidence at Trial

         The evidence at trial showed that Cervantes broadsided or T-boned Mauricio's car in a parking lot. Both of Mauricio's front airbags deployed. EMS arrived at the scene of the accident, but Mauricio was not treated. Five days later, Mauricio was treated by Dr. David Miller, a chiropractor. Dr. Miller referred Mauricio to a pain management clinic, where he first saw Dr. Michael Kruczek, an anesthesiologist, on February 27, 2012. Mauricio complained of low back and neck pain and he had also suffered a left forearm burn and injury to his right index finger from the airbag deployment. Cervical and lumbar MRIs conducted on April 23, 2012 showed disc herniation, specifically "a 5 mm disc protrusion/herniation at C6-7 level with disc injuries also at the C2-3 and C3-4 and C4-5 levels." Dr. Kruczek testified that the cervical MRI showed a 4.5 mm herniated disc at C3-4 and a C2-3 disc tear. In May 2012, Mauricio received a lumbar epidural steroid injection to treat his low back pain; he responded very well to the injection. On July 23, 2012, Mauricio received his first cervical epidural steroid injection; he received temporary relief following the injection, but continued to suffer neck pain as well as numbness and tingling in the right arm and left hand and muscle weakness. He received additional cervical injections on September 10, 2012 and October 15, 2012. Because the neck pain persisted after the third injection, Dr. Kruczek ...


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