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Juarez v. Hammett

Court of Appeals of Texas, Tenth District

May 15, 2019


          From the 361st District Court Brazos County, Texas Trial Court No. 15-001212-CV-361

          Before Chief Justice Gray, Justice Davis, and Senior Justice Scoggins [1]


          Rex D. Davis, Justice.

         Elsa Laura Juarez appeals from the trial court's final judgment on the jury's verdict in favor of Paul Hammett in this case. In her sole issue, Juarez contends that the trial court abused its discretion in denying her motion for new trial, which was based, in relevant part, on newly discovered evidence. We will reverse and remand.


         Juarez and Hammett were involved in a motor vehicle accident. Hammett sued Juarez, alleging that her negligence caused the accident and his resulting injuries. Juarez denied Hammett's allegations, and the case proceeded to a jury trial. On the morning of the first day of trial, Hammett's counsel orally requested that the trial court grant a continuance of the trial because Hammett was unable to be there. The trial court denied the motion for continuance, and the jury trial was conducted in Hammett's absence. The evidence presented at the jury trial consisted of several exhibits, including Hammett's medical and billing records pertaining to his treatment following the accident, and the testimony of three witnesses-Juarez; Hammett, whose testimony was introduced by the parties through his deposition testimony; and Dr. Remon Fino, a licensed medical doctor board certified in physical medicine rehabilitation who treated Hammett at his practice about seven months after the accident. The following is an account of the substance of the relevant evidence.

         On December 16, 2014, fifty-three-year-old Hammett was driving his motorcycle on a parking lot roadway when Juarez, who was driving her car, exited a restaurant parking lot onto the roadway where Hammett was driving and collided with him. Neither Hammett nor Juarez had a stop sign. Juarez testified that she had nevertheless stopped and looked before exiting the restaurant parking lot but that she had not seen Hammett approaching from her left. The impact was to the left, front corner of her car. Hammett testified that when the collision occurred, he was "plowed roughly to the left," resulting in his motorcycle being laid down on its right side. Hammett, who was not wearing a helmet, struck his head on the left side of Juarez's car as he fell to the ground. Hammett said that his right leg was then pinned under the motorcycle but that he was able to pull himself out from under the motorcycle without help. He suffered bruises and scratches to his right arm and leg.

         Juarez stated that after the collision occurred, she got out of her car and saw Hammett lying on the ground. Hammett asserted that Juarez began apologizing profusely and told him that she had not seen him. Juarez testified that she called 911 but that she was told that because the accident had occurred on private property, no one would be dispatched to the scene unless the collision had caused injury. Juarez asked Hammett if he was hurt. Hammett replied that he was fine, so Juarez ended the call.

         Juarez stated that a passerby thereafter helped Hammett pick up his fallen motorcycle and move it over to the parking area. Juarez also asserted that during her time at the accident scene, she had asked Hammett several more times if he was hurt so that she could call an ambulance for him, if necessary. Each time that she asked, he told her that he was okay. Juarez and Hammett ultimately exchanged information, and Juarez asked Hammett if he needed a ride somewhere. Hammett declined and stated that he was waiting for someone. Hammett testified that a friend eventually arrived to pick him up and that his friend then took him to the emergency room.

         Hammett's medical records show that when he arrived at the emergency room, he reported to the medical personnel that it had been about an hour since he had been involved in the accident. Hammett generally described the accident to the medical personnel and then specifically stated to a nurse, "The shock is starting to wear off, so I'm starting to feel more." Hammett then complained that he was experiencing right head pain, blurry vision, right shoulder blade pain, right knee pain, and minor tenderness and stiffness in his neck. Hammett noted, however, that he had not lost consciousness at the accident scene and that he had not had any nausea or vomiting since the accident.

         Dr. Fino did not treat Hammett that day; nevertheless, he testified that he is not concerned by Hammett going to the hospital about an hour after the accident instead of taking an ambulance from the scene. Dr. Fino explained that he does not think that Hammett's actions exacerbated his injuries. Dr. Fino said that Hammett's statement to the nurse about the shock wearing off is also normal because such a traumatic accident will cause that kind of experience.

         Hammett's medical records show that based on his complaints to the medical personnel at the emergency room, Hammett had several CT scans performed that day, including scans of his head, cervical spine, thoracic spine, lumbar spine, chest, abdomen, and pelvis, to look for any injuries. Dr. Fino testified that he believes that those tests are "routine" for the kind of trauma that Hammett experienced. Dr. Fino explained that with a motorcycle accident, there does not have to be major damage to the vehicles for the motorcycle rider to have been injured. Hammett's medical records additionally show that while at the emergency room, Hammett was given two injections of Dilaudid, which Dr. Fino described as a strong, potent narcotic pain medication. Dr. Fino explained that Hammett probably received the second injection because the first injection did not provide enough pain relief or because the pain relief that Hammett experienced from the first injection had worn off. Hammett was also given a medication to help with nausea because nausea is a common side effect of narcotic medication.

          Hammett's medical records show that after the extensive examination, Hammett was ultimately given the final diagnoses of motor vehicle accident, headache, and concussion without loss of consciousness. Hammett was instructed that some of his musculoskeletal complaints would worsen over the next couple of days, which Dr. Fino confirmed is normal. Dr. Fino explained that in many instances, inflammation and swelling will develop over time as a person starts to move more. Hammett's medical records reveal that Hammett was therefore prescribed Norco (hydrocodone and acetaminophen), which Dr. Fino described as a narcotic medication for "strong, moderate, severe pain." When Dr. Fino was asked if he believed that that was "consistent with what [Hammett] presented on," Dr. Fino replied, "Yes." Hammett's medical records show that before Hammett was discharged from the emergency room, he was also given postconcussive instructions and that he agreed to follow up with his primary care physician if any symptoms persisted. Dr. Fino stated that it is normal for the hospital to have told Hammett to follow up with his primary care physician.

         On December 17, 2014, Hammett followed up with his primary care physician, Dr. Jorge Sanchez. On December 24, 2014, Hammett then consulted with orthopedic specialists for evaluation and treatment of his persisting right knee pain. Hammett's medical records show that he explained to an orthopedic physician assistant that day that he had been "side swiped" one week earlier while riding his motorcycle, which had caused him to be "thrown from the bike." Hammett explained that as a result of the accident, he had sustained a head injury without loss of consciousness but that even though a CT scan of his head had been normal, he was still experiencing a worsening headache and blurry vision. Hammett also reported that as a result of the accident, he had sustained a right knee injury and that he was still experiencing pain mostly on the outside of the knee, which was made worse by bearing weight on his leg.

         Hammett's medical records show that X-rays and an MRI of his right knee were obtained and evaluated. Dr. Fino testified that the X-rays revealed an irregularity or defect on the end of Hammett's right femur where the bone contacts the outside of the knee. The MRI further showed a lateral meniscus tear (a tear in the soft tissue structure that helps stabilize the outside of the knee), a possible medial meniscus tear (a possible tear in the soft tissue structure that helps stabilize the inside of the knee), and irregularity of the bone on the outside of the knee. Hammett's medical records provide that the MRI results were thereafter reviewed with Hammett and that he was to follow up with an orthopedic surgeon the next week to discuss treatment plans and possible surgery. Dr. Fino opined that from his review of the MRI, he agreed that referring Hammett to an orthopedic surgeon was the correct course of action. Hammett's medical records show that Hammett was told that in the meantime, he needed to go to the emergency room if his headache, blurry vision, and concussion-type symptoms worsened.

         A few hours later that same day, Hammett went to the emergency room. Hammett's medical records show that his chief complaint at that time was that he was suffering from a severe headache that had been ongoing since the accident. Hammett complained that he was also experiencing mild nausea and photophobia, which Dr. Fino defined as a hypersensitivity to light. Hammett noted to the medical personnel, however, that he was not experiencing dizziness, blurred vision, or vomiting. He further reported that he had not taken any medication for his pain other than NSAIDs because he had not yet been able to fill his prescription for Norco.

         Hammett's medical records show that while at the emergency room, he was given an injection of Dilaudid to treat his pain, as well as medication to help with nausea. Even though the CT scan of his head from one week earlier had been negative for bleeding, another CT scan of his head was performed to ensure that there was no bleed. The result of the second CT scan was again negative. Hammett's neurological exam was also normal. Hammett was therefore diagnosed with post-concussion syndrome. Dr. Fino explained that post-concussion syndrome is "basically when somebody has a head injury." Dr. Fino expounded that when someone suffers a concussion, it can result in headaches from the day of the concussion up to several months and even years later; the trauma to the head can also result in blurred vision and photophobia. Hammett's medical records show that before being discharged, Hammett was therefore prescribed oxycodone, which Dr. Fino described as another "narcotic pain medicine for moderate to severe pain."

         On December 29, 2014, Hammett again followed up with Dr. Sanchez, who noted in the medical records at that time that Hammett had sustained a stress fracture in his right knee and that he was scheduled to see an orthopedic surgeon for consideration of knee surgery. Dr. Sanchez additionally noted that he would refill Hammett's Norco prescription to treat Hammett's knee pain and that he recommended mental rest for Hammett's concussion.

         On December 31, 2014, Hammett then went to see orthopedic surgeon Dr. Thomas O'Shea. Dr. Fino asserted that Hammett's description of his injury at that time is consistent with a stress or compression fracture. Hammett's medical records from the visit show that Hammett described to Dr. O'Shea that he was suffering from aching right knee pain. Hammett reported that the pain had been improving since its onset, but he ranked the severity of his pain on that day as six out of ten. Hammett also noted that his symptoms were aggravated by weight bearing, movement, and palpitation.

         Hammett's medical records show that based on the MRI imaging, Hammett was assessed as having a fracture of his right distal femur at that time. Dr. Fino explained that the distal femur is considered the top part of the knee and that it is therefore consistent to say that part of the knee sustained a fracture. Dr. Fino further stated that the fracture as shown in the MRI imaging is consistent with the previous imaging that showed irregularity on the end of Hammett's right femur. Dr. Fino testified that in his opinion, based on reasonable medical probability, the distal femur fracture shown in the MRI imaging was a result of the December 16 motor vehicle accident.

         Hammett's medical records show that based on his examination of Hammett, Dr. O'Shea ultimately concluded that surgery was not recommended at that time. Instead, Dr. O'Shea noted that he recommended taking another X-ray of Hammett's right knee in one month and that in the meantime, Hammett should use crutches.

         On January 6, 2015, Hammett met again with Dr. Sanchez. Hammett's medical records indicate that Hammett was seeing Dr. Sanchez about pain management because Dr. O'Shea did not recommend surgery. Hammett described his right knee pain that day as sharp, dull, and achy and stated that it was worse whenever he walked. Dr. Fino again testified that Hammett's description of his pain is consistent with his injury. Hammett's medical records show that Hammett was prescribed a fentanyl patch to treat his pain. Dr. Fino described fentanyl as another narcotic pain medication for moderate to severe pain and explained that the medication is absorbed through a patch that is placed on the body. Dr. Sanchez noted in Hammett's medical records that Hammett was also to continue using hydrocodone as needed and then to return in two weeks for continued pain management.

         On January 11, 2015, Hammett again went to the emergency room, complaining mainly about an uncontrollable headache. Hammett's medical records show that he reported at that time that he had suffered from intermittent migraine headache pain located behind his right eye since the accident. Hammett further explained that the headache was sometimes associated with weakness of his right lower leg, but the doctor noted that during his physical examination of Hammett, right-side weakness was not appreciable. Dr. Fino stated that that did not mean that Hammett was lying, though. Dr. Fino explained that a head injury can cause people to have different feelings in their arms and legs, and what seems like weakness could be heaviness that the person is confusing with weakness.

         Hammett's medical records show that Hammett then reported that his current headache had slowly started about four days before and that the headache was associated with mild nausea and photophobia. Hammett explained that four days before, he had been wearing a fentanyl patch that he had been prescribed to treat his pain from the accident but that he thought that instead of helping his headache, the fentanyl patch had caused the headache. Hammett had therefore removed the patch. Hammett further explained that about a week before, he had also stopped taking the Norco that he had been prescribed to treat his pain from the accident because it was making him vomit. Dr. Fino confirmed that fentanyl is a narcotic, a side effect of which includes headaches, and that Norco, also a narcotic, can cause nausea and vomiting. Hammett's medical records reveal that Hammett ultimately described how he felt that day by stating, "[E]verything is screaming right now."

         Hammett's medical records show that after being evaluated, Hammett was diagnosed with a migraine. Hammett was given a Benadryl and Compazine cocktail, after which he reported that his pain symptoms had improved. Although Hammett was not completely pain-free, he expressed a desire to go home and was discharged at that time.

         On January 12, 2015, Hammett again followed up with Dr. Sanchez. Hammett's medical records show that Hammett reported at that time that his pain was uncontrollable. Dr. Sanchez noted in the medical records that Hammett was having difficulty sleeping. Dr. Sanchez also recorded that Hammett had been instructed to offload his weight from his right knee by using crutches but that Hammett had been unable to use the crutches because of right shoulder pain. Hammett had recently started using a fentanyl patch to treat his pain, as well as taking Norco for breakthrough pain, but Hammett reported that the medications had caused a severe migraine that required him to visit the emergency room. Hammett further reported that despite going to the emergency room, he was continuing to suffer from a pulsatile headache along with nausea and vomiting. Dr. Fino testified that Hammett's headache, nausea, and vomiting were related to the post-concussion syndrome.

         Hammett's medical records show that because Hammett was not tolerating the hydrocodone or fentanyl patch well, Dr. Sanchez instructed him to stop taking those medications. Dr. Sanchez instead prescribed Lidoderm. Dr. Fino stated that Lidoderm is a pain patch like a fentanyl patch but that Lidoderm is applied directly to the specific area where the pain is located (in this case, Hammett's right knee), and it releases the numbing pain medication lidocaine, a non-narcotic, into the area of pain. A fentanyl patch, on the other hand, is applied somewhere other than the location of the pain, and it causes narcotic pain medication to be absorbed into the bloodstream. Hammett was also prescribed Percocet (oxycodone and acetaminophen), which Dr. Fino described as a narcotic pain medication for moderate to severe pain. When asked why Percocet would be tried when Norco was causing nausea, Dr. Fino explained that Percocet and Norco are both synthetic narcotics but that they have different chemical structures. Consequently, one medication might cause a person to have headaches while the other causes no side effects. Finally, Hammett was given a Kenalog-40 injection for his right shoulder joint pain. Dr. Fino explained that Kenalog is a short-acting steroid that was injected into Hammett's shoulder to help with the pain, inflammation, and swelling.

         Hammett's medical records indicate that in addition to prescribing the foregoing medications, Dr. Sanchez recommended that Hammett start using a rehabilitation brace to prevent movement while he slept. Dr. Sanchez also recommended that Hammett attempt again to use the crutches, and he noted that he would refer Hammett to pain management.

         On January 14, 2015, Hammett therefore went to see anesthesiologist Dr. Nicholas McKernan. Hammett's medical records show that at that time, Hammett complained of pain in his lower back, head, right shoulder, right leg, and right knee. Hammett further stated that his pain had started on the day of the motor vehicle accident. Hammett described the pain as both numb and sharp. He further reported that the pain worsened with movement but that it was not radiating. Hammett also ranked the severity of his pain as six out of ten, which, according to Dr. Fino, is important because the pain is not mild; rather, it is in the moderate range of pain. Hammett's medical records show that Hammett further reported that medication and heat lessened the pain. Hammett said that his pain medication at that time included Percocet and BC Powder, which provided about sixty percent pain relief. Hammett denied any problems with substance abuse.

         Hammett's medical records show that upon physically examining Hammett, Dr. McKernan noted that Hammett had myofascial pain throughout the region near his neck and shoulder. Dr. Fino explained that myofascial pain indicates that the muscle is what is generating the pain. Hammett's medical records also indicate that Hammett exhibited decreased range of motion and tenderness in his cervical back and right knee. Dr. McKernan accordingly noted that his assessment was that Hammett suffered from myofascial muscle pain, lower back pain, and right shoulder pain resulting from the motor vehicle accident. Dr. Fino testified that these pain issues are the same kind of pain issues for which he later saw Hammett.

         Hammett's medical records show that Dr. McKernan treated Hammett's myofascial muscle pain with a total of five trigger-point injections, which Dr. Fino testified is normal. Dr. Fino explained that when there is an injury, the muscle tends to knot up as a self-defense mechanism, creating a trigger point that causes myofascial pain. Dr. Fino stated that trigger-point injections work by taking a small needle, inserting it into the knot, and breaking up the knot mechanically.

         Hammett's medical records show that during the appointment, Dr. McKernan further discussed the natural course of Hammett's injury with him and reviewed realistic expectations of pain management with him. Dr. McKernan also provided Hammett with a one-time prescription for Percocet. Hammett's medical records specify that Hammett understood that as he recovered from the injury, his use of the Percocet should decrease and that long-term opioid prescriptions were not anticipated. After the trigger-point injections, Hammett was also advised by Dr. McKernan to continue his home exercise and stretching program and to follow up with a physical therapist. Dr. Fino opined that a home exercise program is normally indicated but that the home exercise program did not seem to be helping Hammett's pain because Hammett was continuing to have pain when Dr. Fino later saw him.

         On January 15, 2015, Hammett went to see Dr. B. Rick Seabolt for a second opinion about his right knee, which Dr. Fino testified is normal. Hammett's medical records show that Hammett generally explained to Dr. Seabolt his history of medical care since the accident and then explained that he was still suffering from muscle pain, joint stiffness, back pain, shoulder pain, and lateral knee pain. Dr. Fino testified that in ...

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