Introduction
This paper offers a preliminary discussion of the law governing evidentiary requirements and proof techniques for causation and damages in personal injury cases. A brief, but comprehensive, discussion on the recent “paid and incurred” issue that has arisen with the passage of the (relatively) new Texas Civil Practice & Remedies Code §41.0105 is also included. Finally, it discusses easily quantifiable damages, such as medical expenses and damages that are more difficult to calculate, such as pain and suffering and loss of consortium.
- Causation
How you prove causation in your cases can depend on the type of case and the type of injuries at issue. Some cases, by their very nature, require the use of expert testimony. Other cases do not. The following cases provide an overview of recent Texas appellate rulings in various types of personal injury cases.
- Medical Records and Expert Testimony on Causation; Affidavits of Reasonable and Necessary Medical Expenses
In Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007), the Texas Supreme Court reversed the court of appeals holding lay person testimony was insufficient to prove the causal nexus between the underlying car wreck and the plaintiff’s injuries. The Court recognized non-expert evidence alone would be sufficient to support a finding of causation where “both the occurrence and conditions complained of are such that the general experience and common sense of laypersons [sic] are sufficient to evaluation the conditions and whether they were probably caused by the occurrence.” Id. at 668. Note, the Court remanded the cause for remittitur instead of rendering judgment because the lay person evidence supported some of the damages awarded in the original $1.1 million dollar verdict.
Hong v. Bennett, 209 S.W.3d 795 (Tex. App.—Fort Worth 2006, no pet.) (November 22, 2006), relying on the court of appeals decision in Ferrer, stated that “an uncontroverted [affidavit of reasonable and necessary medical expenses] provides legally sufficient–but not conclusive–evidence to support a jury’s finding” of reasonable and necessary medical expenses. Id. at *2. Without an affidavit, the party must show the expenses are reasonable and necessary through expert testimony. By filing a controverting affidavit, an opposing party can force the other party to prove reasonable and necessary medical expenses through expert testimony. In this case a chiropractor’s controverting affidavit was sufficient to refute the plaintiff’s affidavit for an injured motorist’s chiropractic expenses. It was not sufficient, however, to controvert the affidavits for expenses filed by the medical doctor, the radiologist, and pharmacist.
In Bullard v. Lynde, 292 S.W.3d 142 (Tex. App.—Dallas 2009, no pet.), the trial court entered judgment notwithstanding the verdict to award a motor vehicle wreck plaintiff all of her past medical expenses ($11,660.50) after the jury returned a verdict for $3,344.50 in past medical expenses. At trial, the defendant did not contest the reasonableness and necessity of the medical expenses or present medical testimony to support the argument the plaintiff’s injuries were not related to the wreck. The court of appeals, citing evidence the plaintiff played sports after the wreck but before a surgery “could have” aggravated the original injury, found that more than a scintilla of evidence existed to support the original jury verdict on medical expenses.
Note, the Bullard decision seems to contradict the ruling in Columbia Med. Ctr. of Las Colinas v. Hogue, 271 S.W.3d 238 (Tex. 2008), where the Texas Supreme Court explained the defendant must present some evidence that the plaintiff contributed to cause his own injury. The court stated: “[P]roof of causation to support its contributory negligence submission must rise above mere conjecture or possibility.” Id. at *5. It went on to hold physician testimony that the plaintiff “possibly” contributed to his own injuries was not enough to sustain the defendant’s burden.
In Figueroa v. Davis, 318 S.W.3d 53 (Tex. App.—Houston [1st Dist.] 2010, no pet. h.), a jury found the defendant in a car wreck negligent for running a stop sign and hitting the plaintiffs’ vehicle. The jury awarded the plaintiff-driver $42,482.78 in total damages. The defendant challenged the legal and factual sufficiency of the award for future medical care contending the plaintiff’s failure to present expert testimony connecting his dental injuries to the wreck prevented him from recovering any damages for the injury. The trial court admitted the plaintiff’s medical records under Texas Civil Practices and Remedies Code § 18.001(b), which the appellate court found only proved the reasonableness and necessity of the expenses, and not causation. However, the plaintiff testified when the his body went forward, his teeth and neck hit the steering wheel on impact. He explained his teeth were not bleeding or missing but were cracked directly after the wreck. Evidence also showed the officer responding asked him what was wrong with his mouth and he said he could not talk because it hurt. The plaintiff testified he woke up a few days later with his teeth as pieces in his mouth. Reviewing the evidence, the appellate court affirmed the award, explaining the testimony established a sequence of events that provided a strong, logically traceable connection between the event and the condition.
- Probability v. Possibility
In Bartosh v. Gulf Health Care Center-Galveston, 178 S.W.3d 434 (Tex. App.—Houston[14th Dist.] 2005, no pet.), the court of appeals upheld the trial court’s exclusion of a medical expert’s testimony. The expert “stated that he was hired to speculate on what may have caused [decedent’s] health to deteriorate, that he gave his best speculation regarding possible causes, and that he was just offering an opinion on what might have happened.” Id. at 442.
In W.C. Larock, D.C., P.C. v. Smith, 310 S.W.3d 48 (Tex. App.—El Paso 2010, no pet.), a police officer injured while getting in her patrol car brought a medical malpractice suit against the provider she saw for physical therapy, alleging a re-herniated a disc after it was surgically fixed. On appeal, the defendant employee who performed the therapy at issue argued the officer did not present legally and factually sufficient evidence to establish causation, and the officer argued her treating physician’s testimony was adequate to establish causation. When asked whether the employee’s actions caused the re-herniation, the doctor responded, “It’s possible.” The court of appeals agreed with the employee, explaining the doctor’s testimony was not competent as he testified to possibility rather than probability.
- Asbestos Cases
In Borg-Warner Corp. v. Flores, 232 S.W.3d 765 (Tex. 2007), the Texas Supreme Court help that there was insufficient evidence to show that a mechanic’s asbestosis was the result of asbestos-containing brake pads. Flores presented expert evidence that the brake pads contained asbestos, that a mechanic could have been exposed during certain activities, and the frequency, regularity, and proximity of his exposure, but failed to present any dosage-related evidence to show approximately how much asbestos he might have inhaled. Therefore, there was legally insufficient evidence to establish that the manufacturer’s brake pads were a substantial factor in causing his asbestosis.
- Products Liability
In the realm of products liability, in Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004), the Texas Supreme Court declined to decide whether Section 3 of the Third Restatement of Torts accurately reflects Texas law, and stated that even if Section 3 were the law in Texas, it would generally apply only to new or almost new products. The Restatement provides:
“It may be inferred that if the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution without proof of a specific defect, when the incident that harmed the plaintiff: (a) was of the kind that ordinarily occurs as a result of a product defect; and (b) was not, in the particular case, solely the result of causes other than the product defect existing at the time of sale or distribution”
The Court stated that Section 3 is limited by the drafters in a note stating that “the inference of defect may not be drawn…from the mere fact of a product-related accident.” Id. at 601.
“Producing Cause” is no longer the standard in products liability claims. Rejecting the PJC definition, the Supreme Court of Texas in Ford Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex. 2007), decided that the new standard of proof requires evidence that the defect was a “substantial cause” of the injuries and damages.
The Supreme Court’s new formulation requires that the jury be charged that: (1) the cause must be a substantial cause of the even in issue and (2) it must be a but-for cause, namely one without which the event would not have occurred.
The expert opinions were admissible even though he could not explain why the nuts were not tightened sufficiently. However, the Supreme Court cautioned that to prove a manufacturing defect, Ledesma need not prove that the manufacturing process is flawed, only that it produced a flawed product. Thus, there was not an analytical gap sufficient to show error on the part of the trial court.
The Supreme Court also found admissible the testimony of an accident reconstruction expert testifying mostly on the basis of photographs of the scene, who stated the pavement marks and damage supported Ledesma’s claims. Ford argued this testimony “contain[ed] too many assumptions and logical leaps to be reliable.” But the Court stated that Ford’s criticisms of Hall’s testimony went to the credibility, not the reliability of Hall’s theories, and these were subject to vigorous cross-examination regarding the accuracy of his opinions.
In Merrell v. Wal-Mart Stores, Inc., 276 S.W.3d 117 (Tex. App.—Texarkana 2008, pet. filed), parents of a fire victim filed a products liability action against Wal-Mart alleging a defective halogen lamp caused a deadly apartment fire. The trial court granted summary judgment but considered the expert affidavit of Dr. Craig Beyler included in the parent’s summary judgment response. Both parties appealed, and the appellate court reversed the summary judgment. In its appeal, Wal-Mart claimed Dr. Beyler’s affidavit was inadmissible because it relied on an unsworn witness affidavit and was scientifically unreliable. It further argued the affidavit was inadmissible because it relied on post hoc reasoning and, thus, could not support a finding on causation. The appellate court disagreed, explaining that the Rules of Evidence allow experts to rely on otherwise inadmissible evidence. It also found the affidavit sufficiently reliable, explaining: “Dr. Beyler’s affidavit provides expert testimony bridging the analytical gap between the origin of the fire . . . and the conclusion that the halogen lamp was the cause-in-fact of the fire. Based on Dr. Beyler’s affidavit, the appellate court found more than a mere scintilla of evidence on the element of causation and ultimately reversed summary judgment.
In Driskill v. Ford Motor Co., 269 S.W.3d 199 (Tex. App.—Texarkana 2008, no pet.), car owners brought a products liability action against manufacturers after a defect in a speed control deactivation switch allegedly caused their car and house to burn in a fire. The owners appealed after the trial court granted the manufacturer’s no-evidence motion for summary judgment. Prior to ruling on the summary judgment, the trial court excluded the testimony of the plaintiffs’ expert as to causation but allowed the expert to testify regarding the fire’s origin. The expert testified the fire started in the left rear portion of the engine compartment. Photographs of the car and testimony by the plaintiffs that the cruise control device had stopped working prior to the fire were also admitted into evidence. Nonetheless, the appellate court affirmed, finding no evidence of proximate cause.
In Rentech Steel, L.L.C. v. Teel, 299 S.W.3d 155 (Tex. App.—Eastland 2009, pet. dism’d), a young man and his parents brought claims against his employer for hand injuries he sustained while cleaning a power roller machine on the job when he was sixteen. Prior to trial the plaintiffs settled with the machine’s manufacturer and owner, but the negligence of those parties was still submitted to the jury along with the employer’s negligence. The jury found only the employer negligent and awarded the young man and his parents over $12 million dollars. On appeal, the employer argued it had conclusively proven the negligence of the machine’s manufacturer and owner by calling the plaintiff’s previously retained expert witness to testify about the presence of defects and lack of warning at trial. The court of appeals disagreed, finding causation in the case “was not a matter for experts alone and did not require a technical or scientific explanation. . . .” Id. at 161. It was within the jury’s ability to determine what caused the accident and injuries and the jury could have disregarded the expert’s conclusion regarding causation.
- Premises Liability
In Towers of Town Lake Condominium Ass’n, Inc. v. Rouhani, 296 S.W.3d 290 (Tex. App.—Austin 2009, pet. denied), Dr. Venus Rouhani, a dentist who lost the ability to continue in her profession, filed suit when she fell on a slick deck area coated with enamel paint near the defendant’s swimming pool. The jury returned a verdict for Dr. Rouhani, finding the unreasonably dangerous condition caused her injuries. The defendant appealed, claiming the jury’s findings were not supported by the evidence. The court of appeals affirmed, explaining the testimony of Dr. Rouhani’s expert (a professional engineer with training in decks) was legally sufficient to support finding causation. It explained the expert properly based his opinion on an inspection of the deck and a review of the material used to coat the deck. The court further commented that Dr. Rouhani’s testimony about how the fall occurred was also legally sufficient to support finding causation even without the expert’s testimony because a slick pool deck was within a layperson’s common understanding.
- Automobile Wrecks
In Lincoln v. Clark Freight Lines, Inc., 285 S.W.3d 79 (Tex. App.—Houston [1st Dist.] 2009, no pet.), reviewed a trial court’s decision to allow expert testimony in a wrongful death action against a trucker and trucking company. The defendants offered the testimony of a deputy who served as the county’s accident reconstructionist. The plaintiff moved to strike the expert’s testimony because it was based on an unreliable method. The deputy testified that he would need to determine the coefficient of friction (using information about the vehicle tires) to determine who caused the wreck. To calculate the coefficient of friction, the deputy “eyeballed” the tires and performed testing with a Camber rather than the Mustang involved in the wreck. The trial court allowed the deputy to testify and the officer concluded that the driver of the decedent’s vehicle caused the wreck. The appellate court affirmed the lower court, finding the deputy’s methods reliable and grounded in procedures of science.
Byrd v. Delasancha, 195 S.W.3d 834 (Tex. App.—Dallas 2006, no pet.), involved a car wreck where the defendant ran a red light and struck the plaintiff’s car while she was crossing an intersection. The force of the wreck deployed the plaintiff’s air bag and she told first responders on the seen that she was not okay. After arriving home from the wreck, the plaintiff’s mother took her to the emergency room and she was diagnosed with soft tissue injuries. At trial, the plaintiff testified she did not have any injuries before the wreck but she did have them afterwards. Those injuries were also documented in the medical records admitted into evidence. The defendant moved for directed verdict, claiming the plaintiff failed to establish the causal nexus between her injuries and the wreck and the trial court agreed. The appellate court reversed, finding the plaintiffs testimony and medical records established a sequence of events from which the jury could infer causation without the aid of medical expert testimony.
III. Injury
Damages are intended to compensate the victim for the injuries he or she incurred as a result of the negligent or intentional harm of the defendant. Texas courts historically construed the limits of “physical injury” liberally, including in its definition psychological and physiological manifestations of physical injury or in some instances, the physical results of sheer fright or psychic shock.
In any circumstance, Texas courts require the plaintiff to demonstrate a clear connection between the injury and the damages sustained. Leitch v. Hornsby, 935 S.W.2d 114 (Tex. 1996). Remote damages, or damages that are purely conjectural, speculative, or contingent, are too uncertain to be ascertained and cannot be recovered. Tate v. Goins, Underkofler, Crawford, 24 S.W.3d 627, 635 (Tex. App.—Dallas 2000, pet. denied). Specifically, the Texas Supreme Court in Leitch requires that where there is no medical testimony linking the alleged negligence to the injury, a claimant must provide probative evidence connecting the injury to the alleged negligence through expert testimony.
