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Minjarez v. Wal-Mart Stores Texas, LLC

United States District Court, W.D. Texas, El Paso Division

May 30, 2019




         Before the Court is Plaintiff Maria Dolores Minjarez's "Rule 59 Motion to Alter or Amend the Judgment or Motion for New Trial" (ECF No. 101) ("Motion for New Trial"). For the reasons that follow, the Court DENIES her motion.

         I. BACKGROUND

         This is a slip-and-fall case. On June 21, 2017, Minjarez visited the Wal-Mart store located at 7101 Gateway, Boulevard West in El Paso, Texas, and allegedly slipped and fell on loose grapes and sustained injuries "to her hip, head, neck, and other parts of her body."[1] On January 12, 2018, she brought this lawsuit against Defendants Wal-Mart Stores Texas, LLC and Wal-Mart Stores, Inc. (together, as "Wal-Mart") in the 327th Judicial District Court of El Paso County, Texas, asserting a claim of premises liability.[2] On March 29, 2018, Wal-Mart removed the case to federal court based on diversity jurisdiction, and the case was assigned to the Honorable United States District Judge Frank J. Montalvo.[3]

         On February 11-13, 2019, the case was tried to a jury before Judge Montalvo. In her case-in-chief, Minjarez and several witnesses, including Dr. Andrew Palafox, her expert witness who specializes in orthopedic surgery and in trauma treatment of injuries, testified on her behalf.[4] Walmart did not present any witness and rested its case in defense.

         In a unanimous verdict, the jury found "that the negligence of both Wal-Mart and Minjarez proximately caused "the injury in question."[5] It attributed 50 percent of the injury-causing negligence to Wal-Mart and 50 percent to Minjarez.[6] When asked what sum of money would fairly and reasonably compensate Minjarez "for her injuries, if any, that resulted from the occurrence in question," the jury awarded $44, 000 for past medical care expenses, but zero damages for past pain and mental anguish, future pain and mental anguish, past physical impairment, future physical impairment, future medical care expenses, past loss of earning capacity, future loss of earning capacity, and future disfigurement.[7] A final judgment was not entered.

         On February 22, 2019, Minjarez filed the instant motion. Therein, she claims that because she presented "uncontroverted evidence of an objective injury" at trial, the jury's zero damages award for past pain is manifestly unjust and against the great weight of the evidence warranting a new trial.[8] After the case was reassigned to the docket of the undersigned judge on March 8, 2019, the Court ordered Minjarez to file a supplemental brief regarding her argument that she presented uncontroverted evidence of an objective injury at trial.[9]Specifically, the Court instructed her to cite to the specific portions of the trial transcript that support her argument.[10] On April 15, 2019, Minjarez filed a "Supplemental Brief in Support of Plaintiffs Rule 59 Motion for New Trial" (ECF No. 111) (hereinafter, "Supplemental Brief). Wal-Mart filed its "Response to Plaintiffs Supplemental Brief (ECF No. 112) (hereinafter "Response") on April 22, and Minjarez followed by filing a "Supplemental Reply Brief in Support of Plaintiff s Rule 59 Motion for New Trial" (ECF No. 113) (hereinafter, "Reply") on April 26.

         II. STANDARD

         Federal Rule of Civil Procedure 59 provides that after a jury trial, a trial court may grant a motion for new trial "for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed.R.Civ.P. 59(a); see also Laxton v. Gap Inc., 333 F.3d 572, 586 (5th Cir. 2003) ("A new trial is warranted if the evidence is against the great, and not merely the greater, weight of the evidence." (citing Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982)).

         However, on "a motion for a new trial based on an inadequate or inconsistent jury award," Wiltz v. Welch, 651 Fed.Appx. 270, 272 (5th Cir. 2016), "[i]n a diversity case, federal courts must apply the new trial... standard of the forum in which it sits," Alonso v. Westcoast Corp., 920 F.3d 878, 889 (5th Cir. 2019) (citing Fair v. Allen, 669 F.3d 601, 604 (5th Cir. 2012)). Texas procedural rules provide that "[n]ew trials may be granted when the damages are manifestly too small or too large." Tex.R.Civ.P. 320. The court may set aside a jury's damages award and grant a new trial-only if the award is so "against the great weight and preponderance of the evidence" as to be manifestly unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).

         In determining whether the damages award is "against the great weight and preponderance" of the evidence, the court "must consider and weigh all of the evidence, keeping in mind that the jurors are the sole judges of the credibility of witnesses and the weight to be given their testimony, and may choose to believe one witness and disbelieve another." Rumzek v. Lucchesi, 543 S.W.3d 327, 332 (Tex. App.-El Paso 2017, pet. denied) (citing Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003); City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005)). "[N]o court is free to substitute its judgment for that of the jury," Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex. 1987), or to set aside a jury finding of damages "merely because the judges believe that they would have reached a different and more reasonable result had they been jurors," Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 28 (Tex. 1993).


         As noted, Minjarez argues that at trial, she presented "uncontroverted evidence of an objective injury." Mot. for New Tr. at 4. Despite finding that her injuries were proximately caused by Wal-Mart's negligence and having awarded her all medical expenses associated with treatment of her injuries, she points out, the jury awarded no money for her past physical pain. Id. Under Texas law, she contends, the jury's award of zero damages for her past pain is against the great weight of evidence as a matter of law, and therefore, a new trial is warranted. Id.

         "Matters of pain and mental anguish are necessarily speculative, and it is particularly within the jury's province to resolve these matters and decide the amounts attributable thereto." In re Orren, 533 S.W.3d 926, 930 (Tex. App.-Tyler 2017, no pet.). "There is no 'bright line test' by which the courts of this state have determined to affirm or reverse jury verdicts which fail to make affirmative findings of some elements of physical pain and mental anguish." Balandran v. Furr's, Inc., 833 S.W.2d 648, 651 (Tex. App.-El Paso 1992, no writ).[11] "When uncontroverted, objective evidence of an injury is presented and the causation of the injury has been established, [Texas appellate] courts are more likely to overturn jury findings of no damages for past physical pain." Lanier v. E. Founds., Inc., 401 S.W.3d 445, 455 (Tex. App.- Dallas 2013, no pet.). "However, a damage[s] award for physical pain is not always mandated when medical expenses are awarded." Enright v. Goodman Distribution, Inc., 330 S.W.3d 392, 398 (Tex. App.-Houston [14th Dist.] 2010, no pet.). For example, "when there is conflicting evidence of the injury's cause or an alternative explanation for the injured party's reported pain, appellate courts have upheld zero damage[s] findings for physical pain despite the jury finding that the injured party is entitled to damages for medical expenses." Grant v. Cruz, 406 S.W.3d 358, 364 (Tex. App.-Dallas 2013, no pet.).

         Here, Mijarez identifies three injuries that she claims are objective injuries and about which, she says, she presented uncontroverted evidence at trial: neck injury, [12] bump on her shin, and torn meniscus in her right knee. Suppl. Br. at 4-7; see also Mot. at 1-2, 4. She asserts that these injuries resulted in her pain and suffering. Suppl. Br. at 5. Below, the Court address each injury in turn.

         A. Neck Injury

         On Minjarez's first visited with Dr. Palafox, he took x-rays of her neck. Mot. for New Tr., Ex. A (trial transcript), at 16:6 [hereinafter "Mot. Ex. A"], ECF No. 111-1. Dr. Palafox testified that her x-rays were "essentially okay." Id. He then referred her to Diagnostic Outpatient Imaging for MRIs of her neck and knee. Id. at 17:11-13. Based on the MRI of her neck, Dr. Luis-Ramos-Duran, a neuroradiologist, found no significant abnormalities, except for discopathy (meaning degenerative disc disease), and found that she had arthrosis (meaning arthritis). Mot. for New Tr., Ex. B (trial exhibit), at 28 [hereinafter "Mot. Ex. B"] (emphasis added), ECF No. 111-2; Mot. Ex. A at 17:18-18:5. Dr. Palafox testified that her discopathy could be preexisting or related to trauma. Mot. Ex. A at 17:22-23.

         Although Mijarez cites to Dr. Palafox's testimony that the slip-and-fall incident "did cause injuries," presumably to her neck, see Suppl. Br. at 6 (citing Mot. Ex. A at 44:6-13), there was evidence at trial that in 2016, Minjarez sustained injuries to her neck, back, and arm from a hard-impact auto accident, Mot. for New Tr., Ex. C (trial transcript), at 136:23-137:20, 153:22- 25, 159:2-6 [hereinafter "Mot. Ex. C"], ECF No. 111-3. Minjarez did not inform Dr. Palafox of the 2016 auto accident; he did not otherwise know about it until at trial; and, consequently, at trial, he was unable to rule out the 2016 accident as an alternative cause of her alleged neck injury, and therefore any alleged pain that resulted from this injury. Mot. Ex. C at 157:19-21, 159:7-9; Mot. Ex. A at 26:12-23, 27:3-25, 28:7-11.

         Based on this conflicting and inconclusive evidence, the jury could have reasonably concluded that Minjarez had a pre-existing neck injury that was caused by the 2016 auto-accident or that was degenerative. The Court therefore denies her motion on the basis of her alleged neck injury. See Biggs v. GSC Enter., Inc.,8 S.W.3d 765, 769 (Tex. App.-Fort Worth 1999, no pet.) (jury had the discretion to enter a zero damages award for physical pain, where there was evidence that plaintiffs low back pain was primarily related to a previous ...

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