Cesar Calderon v. Home State County Mutual Insurance Company

• Court: Court of Appeals of Texas
• Decided: January 16, 2015
• Docket: 01-14-00006-CV
• Status: Published

Opinion

Opinion issued January 15, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00006-CV ——————————— CESAR CALDERON, Appellant V. HOME STATE COUNTY MUTUAL INSURANCE COMPANY, Appellee

On Appeal from the 234th District Court Harris County, Texas Trial Court Case No. 2011-23234

MEMORANDUM OPINION

After he was involved in a car accident, Cesar Calderon sued Home State

County Mutual Insurance Company to recover under his underinsured motorist

policy. A jury awarded Calderon some of the medical expenses that he claimed to have incurred following the accident, but it denied his request for past and future

pain and mental anguish. Calderon contests the jury award of zero damages for

pain and mental anguish as against the great weight and preponderance of the

credible evidence. Finding no error, we affirm.

Background

In November 2010, Christine Verhardt was driving along the Sam Houston

Tollway, took her eyes off the road for four to five seconds, and rear-ended Cesar

Calderon, who had stopped due to traffic congestion. Immediately after the

accident, Calderon was dizzy and felt pain in his shoulder, neck, and legs. About

20 minutes later, he felt pain in his back, and had trouble standing. An ambulance

transported him to the emergency department of Cypress Fairbanks Medical

Center. The EMS report noted lower back pain with no abnormalities, and upper

right leg pain. The damage to Calderon’s car cost $3,610.92 to repair; the car was

not totaled.

At the emergency center, technicians took x-rays of Calderon’s neck, right

shoulder, and right hip; all showed no fracture or dislocation. Calderon’s neck x-

ray showed “loss of normal cervical lordosis which may be secondary to position

and/or muscle spasm” but found that “[o]therwise, the vertebral bodies and their

appendages are normally aligned.” Further examination showed no obvious

abnormalities in his neck. Calderon continued to complain of back pain, decreased

2 spinal range of movement, and muscle spasms, but his spinal alignment remained

normal. At the emergency center, no neurological deficits were noted. His

symptoms improved markedly during his stay in the emergency center. Doctors

diagnosed Calderon with back and neck pain and a bruised shoulder. Calderon

was discharged later that evening with instructions to follow up with another

doctor as needed.

In the days following the accident, Calderon began to seek treatment and had

a chiropractic appointment with R. Pina. The chiropractor’s exam and diagnosis

showed decreased range of movement, muscle spasms, and sprains/strains in the

shoulder, neck, and back. Calderon received physical therapy from Pina regularly

for a few months after the accident.

A week after the accident, Calderon visited Dr. Vela in Corpus Christi.

During his appointment, Calderon complained of pain in his neck, lower back,

right shoulder, and right hip. Dr. Vela’s exam showed restriction in Calderon’s

range of motion of his neck and muscle tenderness. Dr. Vela did not take any x-

rays and did not view the x-rays already taken.

Calderon also visited R. Engelmohr, a chiropractor in Corpus Christi. There,

Calderon complained of neck, back, chest, and jaw pain; a stiff neck, headache,

tension, fatigue, and numbness in his toes. Dr. Engelmohr’s exam showed that

Calderon had neck pain and decreased range of motion in his spine. Engelmohr did

3 not take x-rays, and he diagnosed Calderon with muscle spasms and sprain/strain

in the neck and back.

Calderon visited a radiology center for MRIs. The MRI of his right hip was

negative. The MRI of his right shoulder showed tenosynovitis and impingement

syndrome. An MRI of his neck showed small annular tears but with no disc

protrusions or extrusions. An MRI of his lumbar spine was also taken, showing a

protrusion at L5-S1 without extrusion or involvement of the nerve root.

After continuing with physical therapy and home exercises for several

weeks, Calderon continued to have back pain, so he visited Dr. Dennis, an

orthopedic surgeon in San Antonio. At the appointment, Calderon told Dr. Dennis

that he had not had back or neck injury or symptoms before the accident. Calderon

complained of back pain at a level of 8 out of 10, and numbness of the legs,

especially the left leg. Dr. Dennis examined Calderon, noting tenderness and pain

in his neck and back. Dr. Dennis conducted a neurological exam, but the results

were negative. Dr. Dennis reviewed the MRIs of Calderon’s back and neck, noting

the small protrusions in his neck and protrusion between discs L5-S1. He

recommended steroid shots for Calderon’s back, and Calderon received shots on

two occasions.

In July 2011, Calderon visited Dr. Rodriguez for a second opinion.

Calderon again complained of back pain and pain radiating to his left leg. Dr.

4 Rodriguez diagnosed a herniated lumbar disc and radiculopathy, without taking

new x-rays or MRIs, despite earlier MRIs showing no herniated discs. He

recommended back surgery.

Calderon returned to Dr. Dennis in April 2012, complaining that he had

lower back and leg pain and that his leg often fell asleep, despite receiving steroid

shots. Dr. Dennis conducted a neurological exam on Calderon, and the results

were again negative. Dr. Dennis requested that Calderon receive a discogram test

to make sure that he was a candidate for back surgery.

In February 2013, Calderon again saw Dr. Dennis with the same complaints.

Calderon had not received a discogram before this appointment, but ranked his

pain at 8 on a 10–point. Dr. Dennis again requested that Calderon receive a

discogram test to determine whether he was a candidate for back surgery. He

testified that it was essential to have a positive discrogram result before performing

back surgery and that a positive discogram at the L5-S1 disc would indicate that

L5-S1 was the cause of Calderon’s pain. Dr. Dennis focused on L5-S1 because of

the results of Calderon’s MRI.

In June 2013, shortly before trial, Calderon received a discogram test.

During the discogram, Calderon reported no pain at L5-S1. Calderon reported pain

at different discs in the lower back. He also received a CT scan of his spine, the

first scan since his MRI in 2010. The scan of “L5-S1 showed severe degenerative

5 discogenic disease with annular tears” and “large marginal bone spurs . . . causing

mild central spinal canal stenosis and left-sided neuroforaminal narrowing.” The

scan showed degenerative discogenic disease. Calderon agreed that the results

seemed different from the MRIs taken in 2010.

By the time of trial, Calderon’s lower back and hip pain remained. His

shoulder and neck were fully improved after his treatment. Calderon testified that

he did not take prescribed pain killers because they negatively affected his

performance at work. Calderon testified to changes in his lifestyle after the

accident, stating that his pain affects the long distances he must drive for work, that

he can no longer ride his bike daily or complete rides for cancer awareness, and

that he can no longer play golf for work or recreation. He testified that he has

delayed scheduling surgery because of his work schedule.

Expert Testimony

At trial, the experts sharply disputed Calderon’s medical condition and the

MRI test results. Based on the MRIs taken a week after the car accident, Dr.

Dennis, expert for the plaintiff, testified that the MRI of the lower back at disc L5-

S1 revealed a “relatively good result” and that the protrusion at L5-S1 did not

affect the nerve. But Dr. Dennis opined that Calderon’s pain stemmed from the car

accident. He noted that the type of numbness and tingling that Calderon reported

would be painful to an individual. On cross-examination, Dr. Dennis admitted that

6 due to Calderon’s negative neurological exams, there was no objective verification

for Calderon’s complaints of pain.

Dr. Bloom, an expert for the defense, reviewed the medical records and

MRIs taken a week after the accident. Dr. Bloom observed the disc protrusion at

L5-S1, but like Dr. Dennis, noted no neural compression caused by it. He opined

that a protrusion not impinging on the nerve would not cause harm. He explained

that disc degeneration is a disc dehydration process that occurs with aging; in his

opinion, Calderon had some disc degeneration at the L1-2 and L5-S1 discs due to

the normal aging process.

When viewing the MRI of Calderon’s neck, Dr. Bloom did not observe the

annular tears noted by the radiologist, but testified that annular tears are associated

with degenerative disc disease. In his opinion, the degenerated discs, extending

from the C2-3 through C6-7 level, resulted from ordinary degeneration. Dr. Bloom

concluded that the MRIs did not show problems attributable to or aggravated by

the accident; instead, he found evidence of degenerative disease of the cervical and

lumbar discs.

Dr. Bloom found that the MRI of the right hip was normal. After viewing

the MRI of Calderon’s right shoulder, he only found some arthritic changes with

no indication that the accident had affected the shoulder.

7 Dr. Bloom also testified about the exams performed by other doctors. He

confirmed the neurological exams conducted by Dr. Dennis and Engelmohr

showed no abnormal neurological findings. Dr. Bloom also observed that

Calderon’s medical records from March 2011 onward showed that Calderon’s

medical problems changed over time. Records from Dr. Rodriguez, taken eight

months after the accident, indicate pain radiating down the leg and neurological

deficit. Dr. Pina’s records indicated Calderon had numbness in his right leg after

the accident, but later Calderon developed left leg symptoms. Dr. Bloom testified

that Calderon’s “symptoms ha[d] changed and [he] developed an abnormal

neurological examination which is not explainable by the initial MRI.”

Course of Proceedings

Calderon sued Christine Verhardt, Travelers Indemnity Company, and

Home State County Mutual Insurance Company. Calderon had insurance coverage

with Home State and sought to recover under his uninsured or underinsured

motorist coverage. Verhardt settled the claim against her; Home State was the

remaining defendant at the time of trial. The jury awarded damages of $19,005 for

medical care expenses incurred in the past, but declined to award Calderon any

damages for future medical expenses or for pain and mental anguish. Calderon

moved for a new trial, arguing that the jury’s verdict of zero damages for pain and

8 suffering was against the great weight and preponderance of the evidence. The

trial court denied the motion.

Discussion

Calderon contends that we should reverse and remand for a new trial

because the jury’s refusal to award pain and suffering damages is against the great

weight of the evidence, especially given its award for medical expenses.

Standard of Review

When a party attempts to attack the factual sufficiency of an adverse finding

on an issue on which he has the burden of proof, he “must show that the adverse

finding is against the great weight and preponderance of the evidence.” Urista v.

Bed, Bath, & Beyond, Inc., 245 S.W.3d 591, 601 (Tex. App.—Houston [1st Dist.]

2007) (citing Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001)). We

will set aside a verdict only if the evidence is so weak that the finding is clearly

wrong and unjust. Id. In doing so, we must “detail the evidence relevant to the

issue” and “state in what regard the contrary evidence greatly outweighs the

evidence in support of the verdict.” Id. (quoting Dow Chem. Co., 46 S.W.3d at

242).

The jury is the sole judge of the credibility of the witnesses and the weight

of their testimony. Id. The jury may believe one witness and disbelieve another

and resolve inconsistencies in any testimony. Id.; see also Figueroa v. Davis, 318

9 S.W.3d 53, 60 (Tex. App.—Houston [1st Dist.] 2010) (citing City of Keller v.

Wilson, 168 S.W.3d 802, 819–20 (Tex. 2005)). We should not substitute our

opinion for that of the jury or determine that we would have weighed the evidence

differently or reached a different conclusion. Urista, 245 S.W.3d at 601.

Analysis

“[T]he process of awarding damages in a personal injury case for

amorphous, discretionary injuries such as pain and suffering is inherently difficult

because the alleged injury is a subjective, unliquidated, non–pecuniary loss.”

Moore v. State Farm Mut. Auto. Ins. Co., No. 01-09-00657-CV, 2010 WL

2220878, at *3 (Tex. App.—Houston [1st Dist.] June 3, 2010, no pet.) (mem. op.)

(citing Dollison v. Hayes, 79 S.W.3d 246, 249 (Tex.App—Texarkana 2002, no

pet.)). It is particularly within the province of the jury to set the amount of

damages for pain and suffering. Hicks v. Ricardo, 834 S.W.2d 587, 591 (Tex.

App.—Houston [1st Dist.] 1992, no writ); see also Moore, 2010 WL 2220878, at

*3.

In some cases, the injuries have objective manifestations that plainly support

some award for pain and suffering. Moore, 2010 WL 2220878, at *4 (citing

Dollison, 79 S.W.3d at 249–50). In cases with these sorts of objective physical

manifestations, a jury’s failure to award damages for pain and suffering, while

simultaneously awarding medical expenses, is error. Id. (citing Dollison, 79

10 S.W.3d at 250). For example, objectively verifiable injuries like bone fractures,

nerve damage, burns, lacerations, torn muscles, and concussions have been held to

support an award of pain and suffering. Id. (citing Dollison, 79 S.W.3d at 250

n.1).

But in other cases, where the objective indicia of injury are less obvious or

entirely absent, a jury may disregard purely subjective complaints that are

necessarily speculative and incapable of direct proof. Id. (citing Srite v. Owens-

Illinois, Inc., 870 S.W.2d 556, 559 (Tex.App.—Houston [1st Dist.] 1993), rev’d on

other grounds, Owens-Illinois, Inc. v. Burt, 897 S.W.2d 765, 769 (Tex. 1995); see

Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S .W.2d 801, 805 (Tex. App.—

Dallas 1988, no writ) (jury finding of no damages for pain and suffering not

improper when indicia of injury and damages almost entirely subjective)).

Calderon argues this case falls within the former category, requiring an

award for pain. He points to his own testimony, as well as that of Dr. Dennis and

Dr. Bloom, and his medical records introduced at trial. The testimony that

Calderon relies upon, however, is based on subjective complaints of pain. Tests

performed immediately after the accident did not show objective signs of pain. Dr.

Dennis performed a neurological exam, and it was negative. Calderon’s own

expert, Dr. Dennis, testified that he had no objective verification for Calderon’s

complaints of pain. In light of all the evidence, the jury reasonably could have

11 concluded that Calderon’s ongoing complaints of pain were not proximately

caused by the accident and did not rise to the level of compensable pain and

suffering. See Moore, 2010 WL 2220878, at *3–4.

In particular, Dr. Bloom testified that the neck and lower back results were

symptoms of disc degeneration that occurs over time with aging, and that the lower

back protrusion would not cause pain. Dr. Dennis agreed that the lower back MRI

showed a relatively good result and that the nerves were not affected. The jury is

given great discretion in setting physical pain and mental anguish damages. See

Hicks, 834 S.W.2d at 591.

Calderon notes that Dr. Rodriguez diagnosed Calderon with a herniated disc

and radiculopathy, which objectively would cause back pain. The defense expert

discounted Dr. Rodriguez’s assessment because it occurred over eight months after

the accident, and the objective tests that occurred immediately after the accident

did not support it. Dr. Bloom testified that Dr. Rodriguez’s abnormal neurological

examination was not explainable by the initial MRI.

As with the disputed expert testimony, Calderon’s testimony about his pain

was challenged at trial. While he testified to ongoing, significant pain caused by

the accident, other evidence weighed against Calderon’s credibility. The damage

to his car was relatively minor; he had repair costs of approximately $3,600.

Though he lives in Houston and the accident occurred in Houston, he traveled to

12 Corpus Christi and San Antonio for treatment. Although the jury could have

believed that Calderon suffered from back and neck pain, they also could have

concluded, based on the disputed evidence, that Calderon failed to show that his

ongoing debilitating pain was due to the car accident. The jury reasonably could

have determined that Calderon’s later symptoms were attributed to a degenerative

condition and not the car accident. See Urista, 245 S.W.3d at 601. Because the

evidence conflicted at trial, with some evidence challenging any award for pain, it

was within the jury’s province to decline to award damages for physical pain and

mental anguish. See id.

Conclusion

We hold that the jury’s verdict of zero damages for pain and mental anguish

is not against the great weight and preponderance of the evidence. We therefore

affirm the judgment of the trial court.

Jane Bland Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.