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Wal-Mart Stores Texas, LLC v. Bishop

Court of Appeals of Texas, Fifth District, Dallas

June 19, 2018

WAL-MART STORES TEXAS, LLC, Appellant
v.
DAWN BISHOP, Appellee

          On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-00763

          Before Justices Lang-Miers, Fillmore, and Stoddart

          MEMORANDUM OPINION

          ROBERT M. FILLMORE JUSTICE

         Wal-Mart Stores Texas, LLC (Walmart) appeals the trial court's judgment on a jury verdict in favor of Dawn Bishop finding Walmart negligent on a theory of vicarious liability and awarding damages to Bishop for personal injuries sustained when a box fell from a shelf in a Walmart store and struck her on the head. In six issues, Walmart argues: (1) the evidence was legally insufficient and, alternatively, factually insufficient to support the jury's finding that the negligence of Walmart's employee proximately caused the box to fall from the shelf; (2) the evidence was legally insufficient and, alternatively, factually insufficient to support the jury's finding that Bishop's injury was proximately caused by the box falling on her head, and the trial court committed reversible error by permitting Bishop to offer expert testimony when the expert had not been adequately disclosed and was not a proper rebuttal witness; (3) the trial court abused its discretion by denying Walmart's Motion for Leave to File Counteraffidavits under civil practice and remedies code section 18.001, and refusing to allow Walmart to present expert witness testimony at trial on the reasonableness and necessity of Bishop's medical expenses; (4) the trial court committed reversible error by submitting an ambiguous question concerning vicarious liability in the jury charge; (5) the evidence was factually insufficient to support the jury's damage award for physical pain, legally and factually insufficient to support the jury's damage award for mental anguish, and factually insufficient to support the jury's damage award for physical impairment; and (6) the trial court committed reversible error by allowing improper jury argument by Bishop's counsel. We affirm the trial court's judgment.

         Background

         On July 7, 2012, Bishop went to a Walmart store to shop for curtains. While on her way to the curtain department, she entered a clearance section in an area previously occupied by a fast food restaurant. There is no dispute the clearance section was open to customers. At trial, Bishop testified there was no caution sign or other indication the clearance section was dangerous or posed a risk of injury. Photographs of the clearance section introduced into evidence depict multiple adjustable, four to five tiered, metal shelving racks on wheels, sitting side by side in aisles and along the walls. The shelves appear full to capacity with stacked merchandise, some of which is haphazardly arranged. At trial, Bhola Gajurel, the Walmart employee whose negligence was imputed to Walmart under a theory of vicarious liability, confirmed the photographs accurately depicted the clearance section on the day of the accident.

         Randy Dill, the Walmart manager who filled out an incident report with Bishop immediately after the accident, testified that Walmart used temporary shelving units on wheels called "plant racks" in the clearance section. He did not know whether the wheels on the plant racks were locked. Unlike merchandise on the general sales floor, which was arranged and stacked in accordance with company standards and policies, Walmart "maintain[ed] no policies on how to set up a clearance section, " and there was no "rhyme or reason as to how merchandise [was] kept in the clearance section at Walmart." Dill testified that falling merchandise is a serious hazard at Walmart stores, and it is important to train employees concerning the danger posed by falling merchandise and the proper stacking of merchandise on the shelves. Dill indicated that unlike the general sales floor, there is access from either side of the plant racks in the clearance section.

         Until Dill arrived after the accident, the only other person in the clearance section with Bishop was Gajurel, who was stacking items on the shelves. According to Bishop, "[Gajurel] was back there shelving and moving things on the shelf" while she was shopping. On the first aisle, Bishop found some curtains, and proceeded to look for more. As she approached the second aisle, she "looked down and saw some curtains that might be what [she] was looking for." Bishop could see Gajurel's lower body on the other side of the shelving unit, and she could hear him stocking merchandise. Bishop testified she "heard him pushing the merchandise that was in the same place where the [box] was." As she was bent down looking at curtains on the lowest rack, a box fell from above and hit her on the back of the head. "[W]hen the box fell [onto Bishop's head] and [she] kind of yelled out, " "[Gajurel] came around from the other side [of the shelf]." Bishop testified,

[H]e came around and he said, I'm sorry and are you hurt. And I asked him: Did it put a - a cut in my hair? Is my head bleeding.
And he stood there and helped the - helped me look, and he said: No, ma'am, it's not any blood there.
And he asked did I need the manager, and I said yes.

         Bishop indicated she neither touched the shelves in that row prior to the box falling on her head, nor placed any merchandise back on any of the shelves in that section. Bishop stated she did not see Gajurel cause the box to fall because she was looking down.

         According to Bishop, when Dill arrived at the clearance section, he filled out an incident report with Bishop's assistance, and asked Bishop to make a customer statement. While Bishop was standing with Dill in the clearance section filling out the paperwork, Gajurel moved to the other side of the shelf from where Bishop and Dill were located. As Bishop was filling out the paperwork, Gajurel again started shelving items, and "he pushed something - it was a candle . . . off the shelf and onto [Bishop], " "hit[ing her] foot."

         The customer statement Bishop filled out immediately after the incident was introduced into evidence at trial, [1] and corroborated Bishop's testimony, stating,

While shopping in the clearance isles (sic) for curtains a heavy box on the top shelf of a cart fell and hit me on my head. It was a box Cakesickle maker brand Homemade approx 15 lbs.[2] Wile (sic) completing this form a glass candle fell on my foot.

         Walmart's incident report also substantiated Bishop's trial testimony. It described the incident as, "Box fell and struck customer on head, " and confirmed the incident caused "Bodily injury, " specifically, "Neck was hurt." Bishop testified that after leaving the store,

[She] went home and laid down. [Her] neck had started to get a little stiff and sore, and [she] thought maybe [she] could sleep it off, so [she] laid down for about three hours, got up, told [her] husband [she] wasn't feeling good, and it was getting worse. . . .

         At that point, Bishop "went to the emergency room, CareNow."[3] At CareNow, Bishop was diagnosed with a cervical strain and a head contusion caused by the box falling on her head. Because she "started to feel worse, " Bishop returned to CareNow the following day, a Sunday, then went to her primary care physician, Dr. Michelle Ho, on Monday. Dr. Ho prescribed physical therapy. Bishop completed two courses of physical therapy, which "last[ed] until about January of 2013."

         Bishop testified that when she walked into Walmart on July 7, 2012, she did not have any problem with her neck. After the incident and approximately six months of physical therapy, "[she] was still in the pain. The pain still didn't go away, so [she] knew that something else was wrong. It - it never stopped." Ultimately, Bishop saw a pain management physician; over a six or seven month period, she received thirty-four steroid injections in her neck that required general anesthesia; visited a chiropractor; completed at least four rounds of physical therapy; was examined and treated by more than five physicians, including a neurosurgeon and an orthopedic surgeon; and had cervical fusion surgery resulting in "two cages, . . . a plate and six screws in [her] neck." Bishop testified,

I'm still in pain. It - it's still - I have good days, and I have bad days. The type of work that I do, sitting at a computer all day, just having to do everyday things, things that you may not think about until you've lived that day, now a day for me, when I get up in the morning and brush my teeth and lean over the sink, that's painful for me. Taking a shower, that's painful for me.
When I get in the car and I turn right and left, my head right to left, your body just automatically does it, it just moves if you're in traffic or something, but then I'm in pain. So by the time I get to work, I feel like I've already worked a half a day.
So there's no day for me without pain. I sit here now with pain. . . . It's always there.

         Evidence at trial showed Bishop continues to experience pain across her neck and shoulders, as well as throbbing in her eyes. Almost four years after the accident, Bishop, upon the recommendation of her neurosurgeon, still receives physical therapy, and remains under the care of various doctors.

         The record indicates Bishop underwent back surgery in 2010 for degenerative disk disease, but never complained about neck pain. According to Bishop, she was "pain free" and had an active lifestyle prior to the accident. She is employed as an administrative executive assistant. Her job duties include typing, planning, special projects, and managerial responsibilities. Outside of work, her everyday activities prior to the accident consisted of spending time with her children and grandchildren; hosting dinners at her house; traveling to Austin to see family; sewing, including ongoing sewing for a ministry; and attending church activities, such as workshops. Bishop indicated she no longer engages in these activities as she used to. She is less active, mentally alert, and creative because she is "in pain all the time." The injury "changed [her] life." Now, she frequently leaves work and goes to bed. Bishop testified, "[Before the injury] I felt like I was in total control. I'm not anymore. The pain controls me."

         Gajurel testified that on the day of the accident, he was employed at Walmart as a cashier, and while at work was "very, very sick, so sick that [he] didn't know if [he] could work or not." He was called to rearrange some of the stock in the clearance section, items that "had fallen on - from the places." Gajurel "was barred from lifting heavy goods, " including heavy boxes. The evidence at trial showed that Gajurel was not provided training or specific instruction "on what to do" in the clearance section or the "dangers associated with falling merchandise, " because he was a cashier and merchandise placement is "the responsibility of the stocker." Gajurel testified he did not "know how or why the box fell off the shelf, " he was standing with his "back to Ms. Bishop" and not "on the opposite side of her at the very same rack when this box fell, " and he did not hear the box fall. However, a little more than a week before his trial testimony, Gajurel stated in a sworn discovery response that he believed Bishop manipulated the box and caused it to fall. Gajurel further testified he would be fired if he had caused the box to fall and injure Bishop, stating, "If I pushed [the box] then the . . . manager [would] . . . become upset. The manager is going to fire me because if I hurt my customer, the Walmart customer." Gajurel also stated he did not "cause any glass candle to fall in this area on that day."

         Walmart's medical expert, Dr. Raymond Peeples, testified that, in his opinion based on a review of Bishop's medical records, [4] Bishop's neck injury was age-related and not caused by the box falling on her head. Dr. Peeples observed that Bishop's medical records showed she underwent lumbar fusion surgery in March 2010 as a result of disk degeneration, yet "still ha[d] pain in her lower back" in June 2011. According to Dr. Peeples, Bishop's lower back pain fifteen months after the lumbar fusion procedure indicated a "failure of surgery." In his opinion, "[n]o traumatic anatomy was discovered after the Walmart event. Findings six months later on cervical MRI were age-related, normal findings of disk bulges." Based upon a review of CareNow records, Dr. Peeples testified Bishop's "scalp showed no lesion. There was no hematoma." In his opinion, a "significant blow" would have resulted in "swelling, discoloration and enlargement, " and Bishop had "no objective findings of a scalp abnormality." Because Bishop had "[c]omplaints of neck pain without findings, " Dr. Peeples opined she only had "a contusion and strain" as a result of the box falling on her head. Dr. Peeples characterized Bishop's headache after the accident as a "[t]ension headach[e]" which is "frequently brought on by stress, driving, studying too many hours. That's not a headache from a blow to the head that should be present regardless of [one's] activities."

         Dr. Peeples further testified that because Bishop's medical records indicated she had "[n]o radiation of pain to arms or hand" on "the day or two" after the accident, she therefore showed no symptoms of nerve injury; and an EMG report on Bishop indicated "there was no evidence of nerve compression or nerve damage." In Dr. Peeples' opinion, after the box fell on her head, Bishop "had symptoms attributed to a strain, " that got "steadily better, " and then "six months after the event and a recovery, " Bishop suffered "[n]ew symptoms" from "a new condition."

         On cross-examination, Dr. Peeples testified he knew the standards maintained by the American Academy of Orthopedic Surgeons for orthopedic expert testimony required orthopedic surgeons to review all pertinent medical records, including prior depositions, before rendering any statement or opinion on the medical or surgical management of the patient. However, Dr. Peeples admitted he had not read Bishop's deposition testimony.

         Dr. James Stanley, an orthopedic surgeon and one of Bishop's doctors, testified that in his opinion based on reasonable medical probability, Bishop's neck injury, which ultimately resulted in the need for spinal fusion surgery, was caused by the box falling on her head as she was "bent forward looking down."[5] Dr. Stanley's medical notes reflected,

[Bishop] had a box fall on her head and sustained an injury. That injury required surgery. To my thinking, that spells out causation . . . .

         According to Dr. Stanley, because Bishop was looking down when the box hit her head, "her neck [was] in flexion, " which "means that the chin is - closer to the chest." Bishop suffered an "axial ¶exion injury" because the box fell on her head from above, causing her "neck to flex, " which "load[ed] the spine. And flexion . . . is the worst position to load your cervical spine." Dr. Stanley further testified,

[When] a high school collegiate or professional football player . . . sustain[s] a catastrophic cervical spine injury . . . it's almost always in a flexed spine with an axial load. That's the absolute worst biomechanical position for your neck to be in.
. . . .
[T]he disk is a circular ligament with a jelly inside. The jelly is the actual shock absorber. . . . [The spine] is designed to take loads in extension. So the more flexed you are when you're subjected to an axial load, the more of that force, instead of being dissipated equally, it goes . . . into the nucleus, which is the jelly. And when . . . the center of rotation is forward of where it's . . . supposed to be, the forces that are directed towards . . . the jelly are then directed posterior towards the back.
[I]n most of us, the weak link is what we call the annulus which is that circular ring around the disk. . . . And so when you get an axial load in a flexed posture and the weak link is the annulus, you get a disk bulge or a disk displacement or sometimes an actual extrusion of disk material. . . . And the place that it typically goes is back towards the spinal canal.

         Dr. Stanley opined that, based on his review of Bishop's medical records, Bishop did not suffer from any type of degeneration in her spine, and "[Bishop's] pain and resultant medical care and medical treatment . . . [did not have] anything to do with degeneration in her cervical spine at all."

         A jury found that Gajurel was negligent while acting within the course and scope of his employment, his negligence proximately caused Bishop's injury, and Walmart therefore was negligent on a theory of vicarious liability. The jury awarded damages to Bishop in the amount of $1, 393, 484.52, upon which the trial court rendered judgment.

         Analysis

         In six issues, Walmart argues: (1) the evidence was legally insufficient and, alternatively, factually insufficient to support the jury's finding that the negligence of Walmart's employee proximately caused the box to fall from the shelf; (2) the evidence was legally insufficient and, alternatively, factually insufficient to support the jury's finding that Bishop's injury was proximately caused by the box hitting her head, and the trial court committed reversible error by allowing Dr. Stanley to offer expert testimony when his testimony had not been adequately disclosed and he was not a proper rebuttal witness; (3) the trial court abused its discretion by denying Walmart's Motion for Leave to File Counteraffidavits under section 18.001 of the civil practice and remedies code, and refusing to allow Walmart to present expert witness testimony at trial on the reasonableness and necessity of Bishop's medical expenses; (4) the trial court committed reversible error in submitting an ambiguous question concerning vicarious liability in the jury charge; (5) the evidence was factually insufficient to support the jury's damage award for physical pain, legally and factually insufficient to support the jury's damage award for mental anguish, and factually insufficient to support the jury's damage award for physical impairment; and (6) the trial court committed reversible error by allowing improper jury argument by Bishop's counsel.

         Sufficiency of the Evidence

         Standard of Review

         When, as here, an appellant attacks the legal sufficiency of the evidence to support an adverse finding on an issue on which it did not have the burden of proof, it must demonstrate that no evidence supports the adverse finding. Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 215 (Tex. 2011); Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). In determining whether the evidence is legally sufficient to support a finding, we consider the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 821-22 (Tex. 2005). We credit favorable evidence if reasonable jurors could do so, and disregard contrary evidence unless reasonable jurors could not. Id. "The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." Id. at 827.

         A legal sufficiency challenge will be sustained when there is a complete absence of evidence of a vital fact; the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; the evidence offered to prove a vital fact is no more than a mere scintilla; or the evidence conclusively establishes the opposite of the vital fact. See id. at 810; King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). If there is more than a scintilla of evidence supporting the jury's finding, the legal sufficiency challenge must fail. Id. There is more than a scintilla of evidence "when the evidence as a whole rises to a level enabling reasonable and fair-minded people to have different conclusions." Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 156 (Tex. 2014). However, if the evidence is so weak that it only creates a mere surmise or suspicion of its existence, it is regarded as no evidence. Id. at 156.

         In considering a challenge to the factual sufficiency of the evidence, we review the entire record and may set aside the verdict only if it is against the great weight and preponderance of the evidence. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). A finding is against the great weight and preponderance of the evidence if it is clearly wrong, manifestly unjust, or "shocks the conscience." Id. The factfinder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. City of Keller, 168 S.W.3d at 819 (legal sufficiency review); Golden Eagle Archery, Inc., 116 S.W.3d at 761 (factual sufficiency review). We may not substitute our own judgment for that of the factfinder merely because we might reach a different result. City of Keller, 168 S.W.3d at 819, 822-23; Golden Eagle Archery, Inc., 116 S.W.3d at 761.

         Proximate Cause Element of Negligence Claim

         To establish a negligence claim, the plaintiff must prove the defendant owed a duty to the plaintiff, the defendant breached that duty, and the breach proximately caused the plaintiff's injury. Firestone Steel Products Co. v. Barajas, 927 S.W.2d 608, 613 (Tex. 1996). "The components of proximate cause consist of cause in fact and foreseeability." Rogers v. Zanetti, 518 S.W.3d 394, 402 (Tex. 2017). These elements cannot be established by mere conjecture, guess, or speculation. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). Proximate cause may, however, be established by either direct evidence or circumstantial evidence and reasonable inferences drawn from that evidence. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 459 (Tex. 1992).

         Cause in fact requires "proof that (1) the negligent act or omission was a substantial factor in bringing about the harm at issue, and (2) absent the negligent act or omission ('but for' the act or omission), the harm would not have occurred." Stanfield v. Neubaum, 494 S.W.3d 90, 97 (Tex. 2016) (quoting Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat'l. Dev. & Research Corp., 299 S.W.3d 106, 122 (Tex. 2009)). If a negligent act or omission merely creates the condition that makes the harm possible, it is not a substantial factor in causing the harm as a matter of law. See id.; IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 800 (Tex. 2004). "The evidence must go further, and show that such negligence was the proximate, and not the remote, cause of resulting injuries . . . [and] justify the conclusion that such injury was the natural and probable result thereof." Doe, 907 S.W.2d at 477. However, the plaintiff need not exclude all possibilities; it is sufficient to prove that the greater probability is that the defendant's conduct, alone or in contribution with others, was the cause of the harm. First Assembly of God, Inc. v. Tex. Utils. Elec. Co., 52 S.W.3d 482, 493 (Tex. App.-Dallas 2001, no pet.). Nor must the defendant's negligence be the sole cause of the injury. Havner, 825 S.W.2d at 459. The issue is whether there is any evidence from which reasonable minds could draw an inference that the defendant's negligent act caused the plaintiff's injury. Id. "Whether other possible inferences may be drawn from the evidence is not the relevant inquiry." Id.

         A plaintiff proves foreseeability of the injury by establishing that "a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission." Stanfield, 494 S.W.3d at 97 (quoting Doe, 907 S.W.2d at 478). It is not necessary for the particular accident complained of, or the precise manner in which the injury occurred, to be foreseeable. See Doe, 907 S.W.2d at 478. All that is required is the injury be of a general character that might be reasonably contemplated as a result of the defendant's conduct. Id. Foreseeability should be measured in the light of common experience applied to human conduct. Id.

         Proximate ...


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