Court of Appeals of Texas, Fourth District, San Antonio
the 131st Judicial District Court, Bexar County, Texas Trial
Court No. 2013-CI-07395 Honorable Michael E. Mery, Judge
Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez,
Justice Luz Elena D. Chapa, Justice
C. Martinez, Justice
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.
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.
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.
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.
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.
Standard of Review
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).
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.
Evidence at Trial
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