This paper offers a preliminary discussion of the law governing evidentiary requirements and proof techniques for causation and damages in personal injury cases.\u00a0 A brief, but comprehensive, discussion on the recent \u00abpaid and incurred\u00bb issue that has arisen with the passage of the (relatively) new Texas Civil Practice & Remedies Code \u00a741.0105 is also included.\u00a0 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.<\/p>\n
How you prove causation in your cases can depend on the type of case and the type of injuries at issue.\u00a0 Some cases, by their very nature, require the use of expert testimony.\u00a0 Other cases do not.\u00a0 The following cases provide an overview of recent Texas appellate rulings in various types of personal injury cases.<\/p>\n
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\u2019s injuries.\u00a0 The Court recognized non-expert evidence alone would be sufficient to support a finding of causation where \u201cboth 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.\u201d\u00a0 Id. at 668.\u00a0 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.<\/p>\n
Hong v. Bennett, 209 S.W.3d 795 (Tex. App.\u2014Fort Worth 2006, no pet.) (November 22, 2006), relying on the court of appeals decision in Ferrer, stated that \u201can uncontroverted [affidavit of reasonable and necessary\u00a0 medical expenses] provides legally sufficient\u2013but not conclusive\u2013evidence to support a jury\u2019s finding\u201d 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\u2019s controverting affidavit was sufficient to refute the plaintiff\u2019s affidavit for an injured motorist\u2019s chiropractic expenses. It was not sufficient, however, to controvert the affidavits for expenses filed by the medical doctor, the radiologist, and pharmacist.<\/p>\n
In Bullard v. Lynde, 292 S.W.3d 142 (Tex. App.\u2014Dallas 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.\u00a0 At trial, the\u00a0 defendant did not contest the reasonableness and necessity of the medical expenses or present medical testimony to support the argument the plaintiff\u2019s injuries were not related to the wreck.\u00a0 The court of appeals, citing evidence the plaintiff played sports after the wreck but before a surgery \u201ccould have\u201d aggravated the original injury, found that more than a scintilla of evidence existed to support the original jury verdict on medical expenses.<\/p>\n
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.\u00a0 The court stated: \u201c[P]roof of causation to support its contributory negligence submission must rise above mere conjecture or possibility.\u201d\u00a0 Id. at *5.\u00a0 It went on to hold physician testimony that the plaintiff \u201cpossibly\u201d contributed to his own injuries was not enough to sustain the defendant\u2019s burden.<\/p>\n
In Figueroa v. Davis, 318 S.W.3d 53 (Tex. App.\u2014Houston [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\u2019 vehicle.\u00a0 The jury awarded the plaintiff-driver $42,482.78 in total damages.\u00a0 The defendant challenged the legal and factual sufficiency of the award for future medical care contending the plaintiff\u2019s failure to present expert testimony connecting his dental injuries to the wreck prevented him from recovering any damages for the injury.\u00a0 The trial court admitted the plaintiff\u2019s medical records under Texas Civil Practices and Remedies Code \u00a7 18.001(b), which the appellate court found only proved the reasonableness and necessity of the expenses, and not causation.\u00a0 However, the plaintiff testified when the his body went forward, his teeth and neck hit the steering wheel on impact.\u00a0 He explained his teeth were not bleeding or missing but were cracked directly after the wreck.\u00a0 Evidence also showed the officer responding asked him what was wrong with his mouth and he said he could not talk because it hurt.\u00a0 The plaintiff testified he woke up a few days later with his teeth as pieces in his mouth.\u00a0 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.<\/p>\n
In Bartosh v. Gulf Health Care Center-Galveston, 178 S.W.3d 434 (Tex. App.\u2014Houston[14th Dist.] 2005, no pet.), the court of appeals upheld the trial court\u2019s exclusion of a medical expert\u2019s testimony. The expert \u201cstated that he was hired to speculate on what may have caused [decedent\u2019s] 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.\u201d Id. at 442.<\/p>\n
In W.C. Larock, D.C., P.C. v. Smith, 310 S.W.3d 48 (Tex. App.\u2014El 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.\u00a0 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\u2019s testimony was adequate to establish causation.\u00a0 When asked whether the employee\u2019s actions caused the re-herniation, the doctor responded, \u201cIt\u2019s possible.\u201d\u00a0 The court of appeals agreed with the employee, explaining the doctor\u2019s testimony was not competent as he testified to possibility rather than probability.<\/p>\n
In Borg-Warner Corp. \u00a0v. Flores, 232 S.W.3d 765 (Tex. 2007), the Texas Supreme Court help that there was insufficient evidence to show that a mechanic\u2019s asbestosis was the result of asbestos-containing brake pads.\u00a0 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.\u00a0 Therefore, there was legally insufficient evidence to establish that the manufacturer\u2019s\u00a0 brake pads were a substantial factor in causing his asbestosis.<\/p>\n
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.\u00a0 The Restatement provides:<\/p>\n
\u201cIt 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\u201d<\/p>\n
The Court stated that Section 3 is limited by the drafters in a note stating that \u201cthe inference of defect may not be drawn…from the mere fact of a product-related accident.\u201d Id. at 601.<\/p>\n
\u201cProducing Cause\u201d is no longer the standard in products liability claims.\u00a0 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 \u201csubstantial cause\u201d of the injuries and damages.<\/p>\n
The Supreme Court\u2019s 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.<\/p>\n
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.<\/p>\n
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\u2019s claims.\u00a0 Ford argued this testimony \u201ccontain[ed] too many assumptions and logical leaps to be reliable.\u201d But the Court stated that Ford\u2019s criticisms of Hall\u2019s 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.<\/p>\n
In Merrell v. Wal-Mart Stores, Inc., 276 S.W.3d 117 (Tex. App.\u2014Texarkana 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\u2019s summary judgment response.\u00a0 Both parties appealed, and the appellate court reversed the summary judgment.\u00a0 In its appeal, Wal-Mart claimed Dr. Beyler\u2019s affidavit was inadmissible because it relied on an unsworn witness affidavit and was scientifically unreliable.\u00a0 It further argued the affidavit was inadmissible because it relied on post hoc reasoning and, thus, could not support a finding on causation.\u00a0 The appellate court disagreed, explaining that the Rules of Evidence allow experts to rely on otherwise inadmissible evidence.\u00a0 It also found the affidavit sufficiently reliable, explaining: \u201cDr. Beyler\u2019s 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.\u00a0 Based on Dr. Beyler\u2019s affidavit, the appellate court found more than a mere scintilla of evidence on the element of causation and ultimately reversed summary judgment.<\/p>\n
In Driskill v. Ford Motor Co., 269 S.W.3d 199 (Tex. App.\u2014Texarkana 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.\u00a0 The owners appealed after the trial court granted the manufacturer\u2019s no-evidence motion for summary judgment.\u00a0 Prior to ruling on the summary judgment, the trial court excluded the testimony of the plaintiffs\u2019 expert as to causation but allowed the expert to testify regarding the fire\u2019s origin.\u00a0 The expert testified the fire started in the left rear portion of the engine compartment.\u00a0 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.\u00a0 Nonetheless, the appellate court affirmed, finding no evidence of proximate cause.<\/p>\n
In Rentech Steel, L.L.C. v. Teel, 299 S.W.3d 155 (Tex. App.\u2014Eastland 2009, pet. dism\u2019d), 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.\u00a0 Prior to trial the plaintiffs settled with the machine\u2019s manufacturer and owner, but the negligence of those parties was still submitted to the jury along with the employer\u2019s negligence.\u00a0 The jury found only the employer negligent and awarded the young man and his parents over $12 million dollars.\u00a0 On appeal, the employer argued it had conclusively proven the negligence of the machine\u2019s manufacturer and owner by calling the plaintiff\u2019s previously retained expert witness to testify about the presence of defects and lack of warning at trial.\u00a0 The court of appeals disagreed, finding causation in the case \u201cwas not a matter for experts alone and did not require a technical or scientific explanation. . . .\u201d Id. at 161.\u00a0 It was within the jury\u2019s ability to determine what caused the accident and injuries and the jury could have disregarded the expert\u2019s conclusion regarding causation.<\/p>\n
In Towers of Town Lake Condominium Ass\u2019n, Inc. v. Rouhani, 296 S.W.3d 290 (Tex. App.\u2014Austin 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\u2019s swimming pool.\u00a0 The jury returned a verdict for Dr. Rouhani, finding the unreasonably dangerous condition caused her injuries.\u00a0 The defendant appealed, claiming the jury\u2019s findings were not supported by the evidence.\u00a0 The court of appeals affirmed, explaining the testimony of Dr. Rouhani\u2019s expert (a professional engineer with training in decks) was legally sufficient to support finding causation.\u00a0 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. \u00a0The court further commented that Dr. Rouhani\u2019s testimony about how the fall occurred was also legally sufficient to support finding causation even without the expert\u2019s testimony because a slick pool deck was within a layperson\u2019s common understanding.<\/p>\n
In Lincoln v. Clark Freight Lines, Inc., 285 S.W.3d 79 (Tex. App.\u2014Houston [1st Dist.] 2009, no pet.), reviewed a trial court\u2019s decision to allow expert testimony in a wrongful death action against a trucker and trucking company.\u00a0 The defendants offered the testimony of a deputy who served as the county\u2019s accident reconstructionist.\u00a0 The plaintiff moved to strike the expert\u2019s testimony because it was based on an unreliable method.\u00a0 The deputy testified that he would need to determine the coefficient of friction (using information about the vehicle tires)\u00a0 to determine who caused the wreck.\u00a0\u00a0 To calculate the coefficient of friction, the deputy \u201ceyeballed\u201d the tires and performed testing with a Camber rather than the Mustang involved in the wreck.\u00a0 The trial court allowed the deputy to testify and the officer\u00a0 concluded that the driver of the decedent\u2019s vehicle caused the wreck.\u00a0 The appellate court affirmed the lower court, finding the deputy\u2019s methods reliable and grounded in procedures of science.<\/p>\n
Byrd v. Delasancha, 195 S.W.3d 834 (Tex. App.\u2014Dallas 2006, no pet.), involved a car wreck where the defendant ran a red light and struck the plaintiff\u2019s car while she was crossing an intersection.\u00a0 The force of the wreck deployed the plaintiff\u2019s air bag and she told first responders on the seen that she was not okay.\u00a0 After arriving home from the wreck, the plaintiff\u2019s mother took her to the emergency room and she was diagnosed with soft tissue injuries.\u00a0 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.\u00a0 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.\u00a0 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.<\/p>\n
III.\u00a0\u00a0 Injury<\/p>\n
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 \u00abphysical injury\u00bb 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.<\/p>\n
In any circumstance, Texas courts require the plaintiff to demonstrate a clear connection between the injury and the damages sustained.\u00a0 Leitch v. Hornsby, 935 S.W.2d 114 (Tex. 1996).\u00a0 Remote damages, or damages that are purely conjectural, speculative, or contingent, are too uncertain to be ascertained and cannot be recovered.\u00a0 Tate v. Goins, Underkofler, Crawford, 24 S.W.3d 627, 635 (Tex. App.\u2014Dallas 2000, pet. denied).\u00a0 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.<\/p>\n
Introduction This paper offers a preliminary discussion of the law governing evidentiary requirements and proof techniques for causation and damages in personal injury cases.\u00a0 A brief, but comprehensive, discussion on the recent \u00abpaid and incurred\u00bb issue that has arisen with the passage of the (relatively) new Texas Civil Practice & Remedies Code \u00a741.0105 is also
LEER M\u00c1S<\/a><\/p>\n