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Villarreal v. Timms

Court of Appeals of Texas, Fourth District, San Antonio

May 8, 2019

David VILLARREAL, Appellant
v.
Jonabelle Josiane TIMMS, Appellee

          From the 37th Judicial District Court, Bexar County, Texas Trial Court No. 2016CI18748 Honorable Michael E. Mery, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice, Luz Elena D. Chapa, Justice, Beth Watkins, Justice

          OPINION

          Beth Watkins, Justice

         This appeal arises out of a jury verdict rendered in favor of David Villarreal in an automobile accident case. Villarreal contends the jury's findings as to certain measures of damages are against the great weight and preponderance of the evidence. We reverse the trial court's judgment and remand for a new trial.

         Background

         Jonabelle Josiane Timms rear ended Villarreal's vehicle. Villarreal suffered a broken bone and a herniated disc in his neck, sought medical treatment, and was examined by Dr. Elizabeth Clark. Thereafter, Villarreal sought treatment from Dr. Neil Boecking, a chiropractor, and Dr. Manish Patel, an orthopedic surgeon. Dr. Patel referred Villarreal to Dr. Ed Cerday for injections in his neck and recommended a referral for a spine surgery evaluation if the injections did not relieve the pain. Dr. Cerday provided three epidural injections to Villarreal. During the course of the injections by Dr. Cerday, Villarreal had his last visit with Dr. Boecking. Dr. Boecking noted future surgical intervention might be required due to the nature of Villarreal's injury. Ultimately, Villarreal underwent surgery for a single-level neck fusion, which was performed by Dr. Adam Bruggeman.

         Villarreal filed a negligence action against Timms. With regard to damages, Villarreal sought, among other things, recovery for his past medical expenses. In support of this claim, Villarreal introduced and the trial court admitted into evidence an exhibit showing medical bills of $131, 821.46. In addition, Dr. Patel testified the accident necessitated all of the medical treatment Villarreal received. As to whether all of the charges were reasonable, Dr. Patel advised he was not involved with regard to any charges other than his own.

         In response, Timms presented the testimony of Dr. Joel Jenne, an orthopedic spine surgeon. Although Dr. Jenne testified he would not have recommended surgery, he admitted the medical records suggest Villarreal improved after the surgery. With regard to the $131, 821.46 in medical bills, Dr. Jenne testified the amounts were not the reasonable and customary collected amounts for the treatment Villarreal received because: (1) the charges for the injections were $10, 200 too high; (2) the charges for the MRIs were $3, 250 too high; (3) the charge for the surgical hospital was $53, 000 too high; and (4) the charge for the surgeon's fee was $20, 000 too high.

         At the conclusion of the evidence, the jury found Timms's negligence proximately caused the accident. In response to what sum of money would fairly and reasonably compensate Villarreal for his injuries that resulted from the accident, the jury responded:

a. Physical pain and mental anguish sustained in the past. ANSWER: $40, 000.00
b. Physical pain and mental anguish that, in reasonable probability, David Villarreal will sustain in the future. ANSWER: $0.00
c. Physical impairment sustained in the past. ANSWER: $10, 000.00
d. Physical impairment that, in reasonable probability, David Villarreal will sustain in the future. ANSWER: $0.00
e. Medical care expenses incurred in the past. ANSWER: $35, 650.00
f. Loss of earning capacity sustained in the past. ANSWER: $14, 000.00
g. Loss of earning capacity that, that, in reasonable probability, David Villarreal will sustain in the future. ANSWER: $0.00

         The trial court signed a judgment on the jury's verdict and subsequently denied Villarreal's motion for new trial. Villarreal appeals.

         Analysis

         On appeal, Villarreal contends the evidence is factually insufficient to support the jury's findings of zero damages with regard to his future physical pain and mental anguish as well as his future physical impairment. Likewise, he contends the evidence is factually insufficient to support the jury's award of $35, 650 for past medical expenses, arguing the jury should have awarded at least $45, 371.46. Because our decision with regard to the award of past medical expenses is dispositive under Rule 44.1(b) of the Texas Rules of Appellate Procedure, we need not review the sufficiency of the future damage awards. See Tex. R. App. P. 44.1(b).

         Standard of Review

         "When a party attacks the factual sufficiency of an adverse finding on an issue on which [he] has the burden of proof, [he] 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); see Perez v. Arredondo, 452 S.W.3d 847, 860 (Tex. App.--San Antonio 2014, no pet.). "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." Dow Chem. Co., 46 S.W.3d 242; see United Parcel Serv., Inc. v. Rankin, 468 S.W.3d 609, 615 (Tex. App.--San Antonio 2015, pet. denied). "[I]n conducting a factual sufficiency review, a court must not merely substitute its judgment for that of the jury" because "the jury ...


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