United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION AND ORDER
C. GUADERRAMA UNITED STATES DISTRICT JUDGE.
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
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." 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. 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.
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. Walmart did not present any
witness and rested its case in defense.
unanimous verdict, the jury found "that the negligence
of both Wal-Mart and Minjarez proximately caused "the
injury in question." It attributed 50 percent of the
injury-causing negligence to Wal-Mart and 50 percent to
Minjarez. 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. A final judgment was not entered.
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. 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.Specifically, the
Court instructed her to cite to the specific portions of the
trial transcript that support her argument. 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.
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)).
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.
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).
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.
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). "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.).
Mijarez identifies three injuries that she claims are
objective injuries and about which, she says, she presented
uncontroverted evidence at trial: neck injury,  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.
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.
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.
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