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N.F. v. A.S.

Court of Appeals of Texas, Fifth District, Dallas

August 2, 2017

N.F., Appellant
v.
A.S., Appellee

         On Appeal from the 116th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-01188

          Before Justices Bridges, Lang-Miers, and Evans Opinion by Justice Evans

          MEMORANDUM OPINION

          DAVID EVANS JUSTICE

         N.F. appeals from a final judgment rendered after a jury trial on A.S.'s personal injury lawsuit against him. In two issues, N.F. challenges the legal and factual sufficiency of the evidence supporting causation and future medical expenses. In a third issue, N.F. contends the trial court erred in refusing to strike a portion of A.S.'s expert's causation testimony. For the reasons that follow, we affirm the trial court's judgment.

         BACKGROUND

         A.S. sued N.F. alleging he infected her with genital herpes. The evidence at trial revealed the following facts. A.S. and N.F. met through a dating website in January 2012. Although N.F. testified he told A.S. in January that he had genital herpes and could give her a sexually transmitted disease, she denied that N.F. told her he was infected with an STD. On April 29, 2012 they had sexual intercourse for the first time. Both parties agree that although the two discussed using a condom, no condom was used. A.S. testified the intercourse was painful because N.F. proceeded too quickly and she had not had intercourse in a long time. In his testimony, N.F. confirmed A.S. told him immediately before their first sexual encounter, "I haven't done this for five years." The next day, the two had intercourse in the morning and then again that evening. A.S. testified that N.F. was her sixth sexual partner. She admitted however, that she had had unprotected sex with at least one of these prior partners.

         On May 5, A.S. texted N.F. stating she had been sick all week and was having "severe burning and pain" in her genital area. She also indicated to N.F. that she took some old antibiotics "a couple of days ago" but they were not working. She then went to N.F.'s home where she asked him to examine her indicating to him that she felt like she had a small cut. When A.S.'s symptoms did not resolve, N.F. arranged for A.S. to see a gynecologist on May 11. The culture performed on May 11 revealed that A.S. did not have a bacterial infection, but had herpes. On May 17, A.S. had a blood test confirming that she had Herpes Simplex Virus-2 (HSV-2). The blood test showed elevated levels of two HSV-2 antibodies, IgM and ImM.

         According to A.S., although she was upset at N.F. for giving her herpes, their relationship continued until N.F. ended it shortly after Labor Day 2012. However, A.S. continued to contact N.F. until sometime in April 2013. She filed this lawsuit in February 2014, as a counterclaim to N.F.'s suit to recover certain items in A.S.'s possession. After N.F. nonsuited his claims, the trial court re-aligned the parties to name A.S. as the plaintiff and N.F as the defendant. The matter was tried before a jury. At the conclusion of the trial, the jury returned a verdict in favor of A.S. The trial court rendered judgment in accordance with the jury's verdict awarding A.S. $1, 440, 661.38 plus post-judgment interest.[1] N.F. filed this appeal.

         ANALYSIS

         In his first and second issues, N.F. challenges the legal and factual sufficiency of the evidence supporting causation and the jury's $300, 000 award for future medical expenses. When a party challenges the legal sufficiency of the evidence to support an adverse finding on which he did not have the burden of proof at trial, he must demonstrate there is no evidence to support the adverse finding. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). Our review of such a challenge considers the evidence in the light most favorable to the judgment and indulges every reasonable inference that would support it, crediting favorable evidence if a reasonable factfinder could and disregarding contrary evidence unless a reasonable factfinder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 821-22, 827 (Tex. 2005). The finding will be upheld if more than a scintilla of evidence supports it. See Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987).

         In reviewing for factual sufficiency, we consider and weigh all of the evidence, not just the evidence that supports the finding. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406- 07 (Tex. 1988). We may set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id.; Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

         Under either sufficiency analysis the factfinder is the sole judge of witness credibility and the weight to be given their testimony. See City of Keller, 168 S.W.3d at 819 (legal sufficiency); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (factual sufficiency). Moreover, we may not substitute our judgment for that of the factfinder merely because we might reach a difference conclusion. City of Keller, 168 S.W.3d at 819; Golden Eagle Archery Inc., 116 S.W.3d at 761.

         A. Causation

         To establish causation in a personal injury case, a plaintiff must prove the conduct of the defendant caused an event and this event caused the plaintiff to suffer compensable injuries. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984). The issue here is the sufficiency of the evidence to support the jury's finding of a causal connection between A.S.'s sexual intercourse with N.F., who was previously infected with HSV-2, and A.S.'s injury, being infected with HSV-2. The nature of A.S.'s injury is such that expert medical testimony was required to establish causation. See JLG Trucking, LLC v. Garza, 466 S.W.3d 157, 162 (Tex. 2015) (expert testimony necessary to establish causation as to medical conditions outside jury's knowledge and experience); Kaster v. Woodson, 123 S.W.2d 981, 982-83 (Tex. Civ. App.- Austin 1938, writ ref'd) (expert testimony required to establish cause of infection). To constitute evidence of causation, a medical expert's opinion must rest on reasonable medical probability. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). But a personal injury claimant is not required to establish causation to a medical certainty nor is she required to exclude all other possible hypotheses. ...


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