Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 116th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-14-01188
Justices Bridges, Lang-Miers, and Evans Opinion by Justice
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.
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
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.
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. N.F. filed this appeal.
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).
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).
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.
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.