ACCEPTED
14-15-00628-CV
FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 12/21/2015 3:18:30 PM CHRISTOPHER PRINE
CLERK
No. 14-15-00628-CV
_______________________________________________
FILED IN
14th COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE HOUSTON, TEXAS FOURTEENTH DISTRICT OF TEXAS 12/21/2015 3:18:30 PM HOUSTON, TEXAS CHRISTOPHER A. PRINE _________________________________________________Clerk
DEBBIE PATTILLO,
Appellant,
v.
SYLVIA FRANCO,
Appellee
_________________________________________________
On Appeal from Cause No. 1024502 County Court at Law No. 4, Harris County, Texas Honorable Roberta Lloyd, Presiding Judge
__________________________________________________________________________________________________________
APPELLEE’S BRIEF
BARBARA L. HACHENBURG State Bar No. 08667070 bhachenburg@germer.com KELLI B. SMITH State Bar No. 24008053 ksmith@germer.com Three Allen Center 333 Clay Street, Suite 4950 Houston, Texas 77002 (713) 650-1313 – Telephone (713) 739-7420 – Facsimile bhachenburg@germer.com ksmith@germer.com ATTORNEYS FOR APPELLEE
ORAL ARGUMENT IS NOT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Rule 38.1(a), Appellee provides this list of all parties to the order
appealed from and the names and addresses of all trial and appellate counsel:
Plaintiff/Appellant: Debbie Pattillo
Counsel for Plaintiff/Appellant: Scott G. Robelen State Bar No. 16990045 BAILEY & GALYEN 4131 N. Central Expressway, Suite 860 Dallas, Texas 75204 Phone: (214) 252-9099 Fax: (214) 520-9941 srobelen@galyen.com
Defendant/Appellee: Sylvia Franco
Appellate Counsel for Barbara L. Hachenburg Defendant/Appellee: State Bar No. 08667070 bhachenburg@germer.com Kelli B. Smith State Bar No. 24008053 ksmith@germer.com GERMER PLLC Three Allen Center 333 Clay Street, Suite 4950 Houston, Texas 77002 Phone: (713) 650-1313 Fax: (713) 739-7420
Trial Counsel for Allen A. King Defendant/Appellee: State Bar No. 11433490 DAVID BLACK & ASSOCIATES 1221 Lamar, Suite 900 Houston, Texas 77010 Phone: (713) 437-8200 Fax: (855) 460-3974 texs.law-dblackassoc@statefarm.com ii
TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL ......................................................................... ii
TABLE OF CONTENTS ................................................................................................ iii
INDEX OF AUTHORITIES .............................................................................................. v
STATEMENT OF THE CASE ......................................................................................... vii
STATEMENT REGARDING ORAL ARGUMENT .............................................................. vii
ISSUE PRESENTED .................................................................................................... viii
STATEMENT OF FACTS ................................................................................................. 1
SUMMARY OF THE ARGUMENT..................................................................................... 5
STANDARD OF REVIEW................................................................................................ 5
ARGUMENT ................................................................................................................. 7
I. The trial court did not abuse its discretion by refusing Plaintiff’s requested jury instruction on circumstantial evidence, nor did such refusal result in an improper verdict ......... 7
II. The trial court did not abuse its discretion by refusing Plaintiff’s requested jury instruction on the “Eggshell Skull” Rule, nor did such refusal result in an improper verdict ................................................................................................. 10
CONCLUSION AND PRAYER ....................................................................................... 11
CERTIFICATE OF SERVICE ......................................................................................... 13
CERTIFICATE OF COMPLIANCE ................................................................................... 13
iii
APPENDIX.................................................................................................................. 14
iv
INDEX OF AUTHORITIES
CASES
Adams v. Valley Fed. Credit Union, 848 S.W.2d 182 (Tex. App.—
Corpus Christi 1992, writ denied) ................................................................... 8
Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743 (Tex. 1980) ........................... 6
Carter v. Johnson, No. 04-11-00088-CV, 2012 WL 566089 (Tex. App.—
San Antonio 2012, no pet.) ............................................................................ 11
Daniels v. Southwestern Transp., 621 S.W.2d 188 (Tex. App.—
Texarkana 1981, no writ)................................................................................. 8
DeLeon v. Furr’s Supermkts., Inc., 31 S.W.3d 297 (Tex. App.—El Paso 2000, no pet.) ................................................................................................... 6
Gutierrez v. People’s Management of Texas I, Ltd., 277 S.W.3d 72 (Tex.
App.—El Paso 2009, pet. denied) ............................................................... 5, 6
Jackson v. Fontaine’s Clinics, Inc., 499 S.W.2d 87 (Tex. 1973) .............................. 6
Johnson v. Zurich General Acc. & Liab. Ins. Co., 205 S.W. 2d 353 (Tex.
1947) ................................................................................................................ 7
Larson v. Ellison, 217 S.W.2d 420 (Tex. 1949) ........................................................ 7
Lozano v. Lozano, 52 S.W.3d 141 (Tex. 2001) ......................................................... 9
Owens–Corning Fiberglas Corp. v. Martin, 942 S.W.2d 712 (Tex.
App.—Dallas 1997, no pet.) ............................................................................ 6
Walker v. Gutierrez, 111 S.W.3d 56 (Tex. 2003) ...................................................... 5
Wal–Mart Stores, Inc. v. Middleton, 982 S.W.2d 468 (Tex. App.—San Antonio 1998, pet. denied) .......................................................................... 5, 6
v
RULES AND STATUTES
TEX. R. CIV. P. 277 .................................................................................................. 5,6
TEX. R. CIV. P. 278 ..................................................................................................... 6
vi
STATEMENT OF THE CASE
This lawsuit arises from a minor traffic accident. (Clerk’s Record “CR” at
4). Defendant/Appellee Sylvia Franco stipulated to liability, and Plaintiff Debbie
Pattillo’s damages were tried to a jury. (CR at 36). Following a one-day trial, the
jury awarded Plaintiff no damages. (CR at 39). Honorable Roberta Lloyd,
presiding judge of County Court at Law No. 4, Harris County, Texas, subsequently
entered judgment on the verdict for Defendant. (CR at 56).
By way of this appeal, Plaintiff complains that the trial court erred in
refusing to submit requested instructions to the jury on circumstantial evidence and
the Eggshell Skull Rule.
STATEMENT REGARDING ORAL ARGUMENT
Defendant does not believe that oral argument would aid the Court in its
determination of this appeal, because the legal issues are not complex and the
record is relatively short and speaks for itself.
vii
ISSUES PRESENTED
I. Did the trial court act within in its discretion when it refused Plaintiff’s
requested jury instruction on circumstantial evidence? Was the trial court’s
refusal to provide such an instruction harmless?
II. Did the trial act within its discretion when it refused Plaintiff’s requested
jury instruction on the Eggshell Skull Rule? Was the trial court’s refusal to
provide such an instruction harmless?
viii
STATEMENT OF FACTS
Plaintiff and Defendant were involved in a minor vehicle accident on
December 22, 2010. (CR at 5). They were in stop-and-go traffic, when Defendant
“bumped” the rear of the rental car Plaintiff was driving. (Volume 1 of the
Reporter’s Record “1 RR” at 44, 58-59). Defendant checked on Plaintiff, who
stated she was okay. (1 RR at 45, 59). No one called for an ambulance. Id.
Instead, Defendant exchanged insurance information with Plaintiff, and both went
about their way. (1 RR at 45, 60-61).
Defendant testified there was no damage to her vehicle other than a very
slight dent on her license plate. (1 RR at 60-61). Likewise, the rental car that
Plaintiff was driving sustained very little damage. In fact, Plaintiff continued
driving the same rental car for the next couple of days, until it was time to turn it in
on Christmas Eve. (1 RR at 45-46).
Plaintiff celebrated Christmas as planned and was off of work through the
New Year holiday. (1 RR at 46). Plaintiff returned to work after the first of the
year without raising any complaints. Id. Finally, on January 12, 2011—about
three weeks after the accident—Plaintiff decided to seek medical care for low back
pain. Id.
Plaintiff went to a chiropractor based on a friend’s recommendation and
reported that her low back was injured in the automobile accident. (1 RR at 47.
2
Plaintiff was eventually diagnosed with a lumbar herniated disk and received
epidural steroid injections (“ESI”) in April and June 2011. (Volume 2 of the
Reporter’s Record “2 RR,” Plaintiff’s Exhibits 3 and 7). She had no medical
treatment in 2012 or 2013. (1 RR at 48-49). She had a third ESI more than three
years later in August 2014. (1 RR at 49).
Significantly, Plaintiff had a history of low back pain for several years prior
to the accident. In a Patient Condition questionnaire, Plaintiff stated the onset of
her lower back pain was “2008.” (2 RR, Plaintiff’s Exhibit 1 at p. 53, attached as
Appendix Tab 1). When asked whether and when she had seen another doctor for
this condition, she indicated yes, in October 2010. Id. In fact, Plaintiff had visited
her doctor at the Kelsey Seybold Clinic in August 2010—just four months prior to
the accident—and sought treatment for “constant” low back pain. (2 RR,
Defendant’s Exhibit 1 at 2, 5, attached as Appendix Tab 2; see also 1 RR at 42,
43). Plaintiff’s doctor prescribed her a 90 day supply of Methocarbamol (a muscle
relaxant) for back pain and muscle spasms. (1 RR at 43-44, 2 RR, Defendant’s
Exhibit 1 at 3,4). Plaintiff’s prescription ran out just a few weeks prior to the
accident. (1 RR at 43-44).
Remarkably, Plaintiff testified during direct examination at trial that she had
never previously sought treatment for an injury to her back:
Q: Prior to this accident here, had you ever sustained an injury to your back?
3
A: Not to my back. Not that I recall. I pulled a muscle from exercising.
Q: Had you ever sought treatment for injury to your back prior to the accident that we are here about today?
A: No, not to my back.
(1 RR at 21-22). During cross examination, however, Plaintiff admitted that she
had prior treatment for a back injury. As an explanation for her impeached
testimony, she stated, “I didn’t recall that, sorry.” (1 RR at 44).
In addition to low back pain, Plaintiff also complained to the chiropractor
that her left shoulder was sore following the accident. (2 RR, Plaintiff’s Exhibit 1
at 37, attached as Appendix Tab 3). During trial, Plaintiff denied ever having any
prior treatment on her shoulder and testified that she believed her shoulder was
injured in the accident—“that’s when I noticed pain in the shoulder.” (1 RR at 22).
According to medical records, however, Plaintiff reported “a chronic 2-year history
of left shoulder pain.” (2 RR, Plaintiff’s Exhibit 1 at 37, Appendix Tab 3).
Plaintiff had an MRI performed on her left shoulder and was diagnosed with
a strain and bone contusion. (2 RR, Plaintiff’s Exhibit 1 at 14). During trial,
however, Plaintiff was obviously confused about which shoulder she purportedly
injured in the accident. She testified that it was her right shoulder that was injured
in the accident (1 RR at 28) (“My left one. –excuse me, my right one.”) And
4
when discussing how the driver-side seatbelt bruised her shoulder, she grabbed her
right shoulder. (1 RR at 52).
After the close of evidence, the trial court conducted a brief charge
conference. (1 RR at 62-67). Plaintiff’s counsel requested an instruction on
circumstantial evidence and the “Eggshell Skull” Rule. (1 RR at 66-67; and CR at
47). The trial court refused both instructions. Id.
Plaintiff’s counsel nevertheless argued to the jury that they should consider
the circumstantial evidence with regard to Plaintiff’s injury. (1 RR at 67, 74).
Plaintiff’s counsel also argued that if Plaintiff had a pre-existing condition,
Defendant was responsible for aggravating it:
There is no evidence that this lady suffered the type of injury she has had right now any time before this collision. Did she have a herniated disk before this collision? Who knows? Who can say. We know one thing though. If she did, it wasn’t bothering her. She went to the clinic, for upper respiratory infection, some spasms in her back and they gave her some pills and she was fine. She was fine…. This is a circumstantial case. That’s the best we can do in a case like this because there wasn’t an MRI done the moment of this collision. But I can tell you what the evidence is, and that is the pain is different. She had no problems in the months before this collision except for that one visit with the doctor, and now her records are replete with what she is going through. The radiating pain, the dulling pain, the numbness. Never had that before….
(1 RR at 74-75).
The trial court then read the charge to the jury, who was asked to determine
what sum of money would provide fair and reasonable compensation for Plaintiff’s
5
injuries, if any “that resulted from the occurrence in question.” (CR at 36). The
jury returned its verdict awarding Plaintiff no damages. (CR at 39). The trial court
entered judgment on the verdict, and this appeal ensued. (CR at 56, 58).
SUMMARY OF THE ARGUMENT
The trial court acted within its discretion in refusing to submit Plaintiff’s
requested instructions to the jury on circumstantial evidence and the Eggshell Skull
rule. The trial court’s decision was not arbitrary or unreasonable and did not result
in an improper verdict. This Court should therefore affirm the trial court’s
judgment for Defendant.
STANDARD OF REVIEW
A trial court’s submission of jury questions and instructions is reviewed
under an abuse-of-discretion standard. Gutierrez v. People’s Management of
Texas I, Ltd., 277 S.W.3d 72, 77 (Tex. App.—El Paso 2009, pet. denied). “A trial
court abuses its discretion if it acts in an arbitrary or unreasonable manner without
reference to any guiding rules or principles.” Walker v. Gutierrez, 111 S.W.3d 56,
62 (Tex. 2003).
A trial court is afforded more discretion when submitting jury instructions
than when submitting jury questions. Wal–Mart Stores, Inc. v. Middleton, 982
S.W.2d 468, 470 (Tex. App.—San Antonio 1998, pet. denied). However, the
discretion afforded during the submission of instructions is not absolute. See
6
TEX.R. CIV. P. 277. Pursuant to Rule 277, a trial court must submit instructions
“as shall be proper to enable the jury to render a verdict.” Id. For an instruction to
be proper, it must: (1) assist the jury, (2) accurately state the law, and (3) find
support in the pleadings and evidence. TEX.R. CIV. P. 277, 278; Middleton, 982
S.W.2d at 470. An instruction that misstates the law as applicable to the facts or
one that misleads the jury is improper. Jackson v. Fontaine’s Clinics, Inc., 499
S.W.2d 87, 90 (Tex. 1973); Owens–Corning Fiberglas Corp. v. Martin, 942
S.W.2d 712, 721–22 (Tex. App.—Dallas 1997, no pet.).
In reviewing the jury charge, the appellate court considers the parties’
pleadings, the evidence presented at trial, and the charge in its entirety. Gutierrez,
277 S.W.3d at 77. Even if the trial court abuses its discretion, the appellate court
will reverse only where the error in the jury charge is shown to be harmful.
Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 749–50 (Tex. 1980). “‘We
may not reverse unless the error, when viewed in light of the totality of the
circumstances, amounted to such a denial of the rights of the complaining party as
was reasonably calculated [to] and probably did cause rendition of an improper
judgment.’” Gutierrez, 277 S.W.3d at 77 (quoting DeLeon v. Furr’s Supermkts.,
Inc., 31 S.W.3d 297, 300 (Tex. App.—El Paso 2000, no pet.)). Whether the charge
submits the proper controlling issues in the case, in terms of theories of recovery or
defense, is a question of law, which is reviewed de novo. Id.
7
ARGUMENT
I. The trial court did not abuse its discretion by refusing Plaintiff’s requested jury instruction on circumstantial evidence, nor did such refusal result in an improper verdict.
Plaintiff did not cite any case law in Appellant’s Brief to support her
argument that it is an abuse of discretion to refuse to instruct the jury on
circumstantial evidence. That is because the law is well-settled that it is not error
to refuse to instruct the jury on circumstantial evidence, regardless of whether or
not a party’s case depends on circumstantial evidence. The Texas Supreme Court
first analyzed this issue in Johnson v. Zurich General Acc. & Liab. Ins. Co., 205
S.W. 2d 353 (Tex. 1947), where it explained:
In practically all cases some of the evidence is circumstantial. Surely a jury understands that it is its function to make reasonable inferences from proven facts, and we are unwilling to sanction a rule based upon the hypothesis that it does not.
Id. at 354. Two years later, the Texas Supreme Court relied on its Zurich decision
in Larson v. Ellison, 217 S.W.2d 420 (Tex. 1949) (holding that it was also not
error to instruct the jury on circumstantial evidence). The Court explained:
If the charge on circumstantial evidence had not been given, still, as was suggested in the Zurich case, the jurors as men of common sense and sound judgment would certainly have been at liberty, in arriving at a verdict, to make reasonable inferences from proven facts.… everyday experience tells us the jury would have done that very thing in the absence of the instruction.
8
Id. at 467.
The Zurich rule has been consistently followed in more recent years. See,
e.g., Daniels v. Southwestern Transp., 621 S.W.2d 188, 191 (Tex. App.—
Texarkana 1981, no writ) (holding trial court’s refusal to give jury instruction on
circumstantial evidence was not error); Adams v. Valley Fed. Credit Union, 848
S.W.2d 182, 188 (Tex. App.—Corpus Christi 1992, writ denied) (“We find no
error in the trial court’s determination to exclude the instruction [on circumstantial
evidence].”).
Here, the trial court clearly did not act without reference to guiding rules or
principles when it denied the instruction on circumstantial evidence; therefore, the
court did not abuse its discretion.
In any event, the trial court’s omission of the circumstantial evidence
instruction did not result in an improper verdict. First, the jury undoubtedly
understood they were permitted to consider circumstantial evidence. Indeed, in
closing argument, Plaintiff’s counsel repeatedly argued that the jury should
consider the circumstantial evidence in reaching its decision. (1 RR at 67, 74).
Second, the fact that the jury found for Defendant does not mean that the
jury ignored the circumstantial evidence. To the contrary, the circumstantial
evidence gave rise to an equally plausible inference that Plaintiff’s injuries did not
result from the accident. In other words, the jury could have reasonably inferred
9
from the circumstantial evidence that Plaintiff had herniated disks prior to the
accident, but the accident was so minor that it did not exacerbate her pre-existing
condition.
As the Texas Supreme Court has noted, circumstantial evidence often
requires a fact finder to choose among opposing reasonable inferences. Lozano v.
Lozano, 52 S.W.3d 141, 148 (Tex. 2001). And this choice in turn may be
influenced by the fact finder’s views on credibility. Id. at 148-49. Thus a jury is
entitled to consider the circumstantial evidence, weigh witnesses’ credibility, and
make reasonable inferences from the evidence it chooses to believe. Id. at 149. If
circumstantial evidence will support more than one reasonable inference, it is for
the jury to decide which is more reasonable, subject only to review by the trial
court and the court of appeals to assure that such evidence is factually sufficient.
Id. at 148. Notably, Plaintiff does not challenge the sufficiency of the evidence to
support the jury’s verdict in this case.
In sum, the trial court did not err in refusing the Plaintiff’s requested
instruction on circumstantial evidence, and omission of the instruction did not
result in an improper verdict.
10
II. The trial court did not abuse its discretion by refusing Plaintiff’s requested jury instruction on the “Eggshell Skull” Rule, nor did such refusal result in an improper verdict.
The trial court also did not abuse its discretion by refusing to instruct the
jury on the following “Eggshell Skull” Rule requested by Plaintiff:
You are instructed that a defendant takes a plaintiff as she finds her. This means that regardless of Debbie Patillo’s [sic] physical condition at the time of the incident, she is entitled to recover the damages resulting from the incident, conditioned as she was at the time of the injury. The fact that Debbie Patillo [sic] had physical problems at the time of the incident that made her more susceptible to injury does not, in itself, relieve the Defendant of liability for all damages sustained by Debbie Patillo [sic] that were proximately caused by or aggravated by the incident.
As an initial matter, the Eggshell Skull instruction was properly denied
because Plaintiff did not plead, nor testify on direct examination, that she had any
condition prior to the accident that made her more susceptible to injury. (CR at 4;
1RR at 21-22). To the contrary, Plaintiff took the position that she was healthy and
had no back or shoulder problems prior to the accident. Id. Once Plaintiff was
impeached with her medical records on cross-examination, Plaintiff’s counsel
changed course and argued in closing argument that if Plaintiff had a pre-existing
condition, it was aggravated by the accident.
Second, Plaintiff’s requested jury instruction was properly denied because it
does not comport with Texas Pattern Jury Charge 28.9 for a “Pre-Existing
11
Condition That Is Aggravated,” a copy of which is attached as Appendix Tab 4.
Appellant’s Brief provides no authority supporting the submission of an instruction
on the “Eggshell Skull” Rule or explaining why it should supplant the Texas
Pattern Jury Charges. Other courts have similarly rejected instructions on the
Eggshell Skull Rule. See, e.g., Carter v. Johnson, No. 04-11-00088-CV, 2012 WL
566089 (Tex. App.—San Antonio 2012, no pet.)(affirming trial court judgment
where instruction on eggshell skull was denied as incorrect statement of the law).
Finally, the omission of the “Eggshell Skull” instruction did not cause the
rendition of an improper verdict, because the jury was properly instructed to
determine Plaintiff’s damages, if any, that resulted from the accident. (CR at 39).
Plaintiff’s requested instruction was not necessary to assist the jury. In any event,
Plaintiff’s counsel argued in closing that if Plaintiff had a pre-existing condition, it
was asymptomatic before the accident, and that Plaintiff’s damages thus resulted
from the collision. (1 RR at 74-75). Clearly the jury assessed the credibility of the
witnesses and weighed the evidence in determining that the minor accident did not
cause Plaintiff’s damages. Again, Plaintiff does not challenge the sufficiency of
the evidence to support the jury’s verdict. The jury’s verdict was proper.
CONCLUSION AND PRAYER
The trial court did not abuse its discretion in refusing Plaintiff’s requested
jury instructions, nor did such refusal cause the jury to render an improper verdict.
12
Accordingly, Appellee Sylvia Franco respectfully prays that this Court affirm the
trial court’s judgment and award Appellee her costs of court and all such other and
further relief to which she is justly entitled.
Respectfully submitted,
GERMER PLLC
By:
BARBARA L. HACHENBURG State Bar No. 08667070 KELLI B. SMITH State Bar No. 24008053 Three Allen Center 333 Clay Street, Suite 4950 Houston, Texas 77002 (713) 650-1313 – Telephone (713) 739-7420 – Facsimile bhachenburg@germer.com ksmith@germer.com
ATTORNEY FOR APPELLEE, SYLVIA FRANCO
13
CERTIFICATE OF SERVICE
I hereby certify that on this the 21st day of December, 2015, Appellee’s Brief was filed and served on the following counsel of record in accordance with the Texas Rules of Appellate Procedure as shown below:
Mr. Scott G. Robelen Via e-file and email State Bar No. 16990045 BAILEY & GALYEN 4131 N. Central Expressway, Suite 860 Dallas, Texas 75204 Phone: (214) 252-9099 Fax: (214) 520-9941 Email: srobelen@galyen.com
____________________________________
BARBARA L. HACHENBURG
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Texas Rule of Appellate Procedure 9.4(i)(2)(B) because this brief contains 2,722 words, excluding the parts of the brief exempted by Texas Rule of Appellate Procedure 9.4(i)(1).
2. This brief complies with the typeface and type style requirements of Texas Rule of Appellate Procedure 9.4(e) because this brief has been prepared in a proportionately spaced typeface using Microsoft Word in 14-point Times New Roman font, except for footnotes which are 12-point font.
____________________________________
BARBARA L. HACHENBURG
14
APPENDIX
Tab 1 – League City Chiropractic and Sports Medicine Records, Patient Condition Questionnaire (2 RR, Plaintiff’s Exhibit 1 at p. 53)
Tab 2 – Kelsey-Seybold Clinic Records (2 RR, Defendant’s Exhibit 1 at 2-5)
Tab 3 – League City Chiropractic and Sports Medicine Records (2 RR, Plaintiff’s Exhibit 1 at 37)
Tab 4 – Texas Pattern Jury Charge 28.9
Tab 1
PATiENT CONDITION
Patient Name ypni-i yh Date * Neese list iha top two reasons for coming to (he clinic, List your main reason (chief complaint) under First Condition end, if applicable, your next complaint under Second Condition. For example, if you have neck and low back pain and neck pain Is worse, You would list neck pain under first condition and low bacJc pain under second condition.
Et Condition h_CIL Date of Onset2ag_ Please explain in detail how your symptoms began
Rate the severity of your pain from ifieast o 10 (severe pain) Are you able to find a py7 of comfort? Y Does pain Interfere with your: Sleep_ Routine Recreation Sex life Activities or movements that are painful to perform: Sifting /Standing Walking BendingLLying Down Other specific activities that cause pain How would you describe your pain (circle a • : pp! dull stabbing throbbing sh tiffne ghtnes burning tingling numbne Is pain (circle): constant comes and goes only with certain activities Worse In (circle): if pain comes and goes, how long (duration) does the pain last?. ., What, if anything, makes the pain better? Does pain radiate to your arms or legs? Y If yes, explain ,
Does pain wake you up at night? N if yes, explain Second Condition Date of Onset Please explain how your symptoms began Does pain Interfere with your: Work Sleep Dally Routine Recreation Sex life Activities or movements that are painful to perform: Sitting Standing_ Walking Bending Lying Down Other specific activities that cause pain Rate the severity of your pain from 1 to 10 How would you describe your pain (circle ail that apply): deep dull stabbing throbbing shooting aching spasm stiffness tightness burning tingling numbness annoying slight intense Is pain (circle): constant comes and goes only with certain activities Worse in (circle): morning afternoon positional What, if anything, makes the pain better? Does pain radiate to your arms or legs? Y N If yes, explain General Information t o, •
List all; Medications I/ Vitamins Allergies ),)
Have you had chiropractic care befor Y N Who/When Have you seen another doctor for this condition?a2 N Who/ When 161E-4 0 List and Describe (Date) any Surgerie p talizationsl Fractures! P'n 6 ,11 inje. ions! Screws or implants
c.3
Tab 2
LEGA LPARTNERS, L.P.
1609 SHOAL CREEK BLVD., stc. 310 AUSTIN, TX 78701
TEL: 512/440-8187 FAX: 512/440-8780
DEDIDEPATTILLO
V.
SYLVIA FRANCO-
RECORDS REGARDING: DERIDE PATTILLO
RECORD TYPE: MEDICAL RECORDS RECORDS FROM: KELSEVSEYBOLD CLINIC (Including Records of Dr. Metna Eswaren) 896 ► Lakes at 610 Drive Houston, Texas 77054
Reference: I3ROUS00133 DELIVER TO Leslie MeCaffety David Black & Associates Four Houston Center, 1221 Lamar, Suite 900 Houston, Tetas 77010
Authorization Used In Conjunction With Subpoena
/CLIENT FA E/ 152821
Keley-Seyboid C laic LAKES AT 610 8900 LAKES AT 610
PATTILLO,DEBORAH MRN: 07161698
HOUSTON, TX 77054-2525 DOB: 4111/1984, Sex: F KSC COMPLETE CHART Eno. Date:08/13/10 . OffteeNti lt:' Deborehy,PatfiliP'ORRY 011 16981 Encounter information Pi9Mdft, Depeitient gocotatito#' P4:010r:'
8/13/201010:15 Jaescon W Hite, MD bm Family Medicine 22308841 CM
Reason for Visit URI , h/C asthma and bronchitis, need inhaler refill, symptoms worsening x3 months
Diagnoses .
AR (allergic rhinitis) Sinusitis Cough WHEEZING
Allergies as of 8/13/2010 Date Reviewed 8/13/2010 Reviewed By:
Jaesoon W H16)1,100
Not on File
Site;
intramuscular Right tipper quad. gluteuS
Given By Brenda Kauffman Lvn Influenza Virus Vaccine, age 3 defer-Wed Sep 19, and up Given By: Solt-Medrot 2012 3:04 PM
Tue Jan 22, 2013
Deferral: Parent refused vaccine. 1 ml intramuscular . Right upper
10:51 AM quad.
gluteus
Given By: Katrina L Blackmon Lvri Td- Tetanus Si.Diphtheria 08/13/07 Vaccine (age 7+ years)
Given By: Toradol Thu Nov15, 2012 30 mg Intraniuscular Right upper 1:55 PM quad.
gluteus
Given By: Irene V Hardy Lvn
Medications the Patient Reported Takin
Albuterol 90 MCGIACT IN _MRS 11/39/2010
Sig: as directed • (Taking/Discontinued)
Class: Historical Ivied Route: inhalation Printed on 7/8/2013 10:02 AM Page 1 of 823
3
160 Kelse ► -Seybold Clinic LAKES AT 610 8900 LAKES AT 610
PATIILLO,DEBORAH J MRN: 07161698
HOUSTON, TX 77054-2525 DOB: 4/11/1964, Sex: F KSC COMPLETE CHART Enc. Date:08/13/10 Medications the Patient Reported Taking (continued)
' ..Start'l" " End Albuterol Sulfate 108 (90 BASE) MCG/ACT 1 Inhaler 1 8/13/2010 6/22/2011 IN AERS (Taking/Discontinued)
Sig: 2 puffs q 4-6 hours pm for wheezing Class: E-Prescribe Route: Inhalation Aiprazolarn 0.25 MG OR TABS 30 Tab 0 8/13(2010 6/22/2011 (Taking/Discontinued)
Sig: 1 po bid pm for panic attack Route: oral Amoxicillin-Pot Clavulanate 875-125 MG OR 28 Tab 0 8/13/2010 11/30/2010 TABS (Taking/Discontinued)
Sig: 1 TABLET EVERY 12 HOURS Class: E-Prescribe Route: oral Benzonatate 200 MG OR CAPS 60 Cap 0 8/13/2010 11/30/2010 (Taking/Discontinued)
Sig: 1 CAPSULE 3 TIMES DAILY AS NEEDED Class: E-Prescribe Route: oral Diclofenac Sodium 75 MG OR TBEC 60 Tab 0 8/13/2010 12/6/2010 (Taking/Discontinued) Sig: 1 TABLET TWICE DAILY Class: E-Prescribe Route: oral Fexofenadine HCI 180 MG OR TABS 30 Tab 5 8/13/2010 11/30/2010 (Taking/Discontinued)
*Sig: 1 TABLET DAILY Class: E-Prescribe Route: oral Fluticasone-Salmeterol (ADVAIR INSKUS) 11/30/2010 250.50 MCG/DOSE IN AEPB (Taking/Discontinued) Sig: 1 INHALATION EVERY 12 HOURS Class: Historical Med Route: inhalation Levonorgest-Eth Estrad 91-Day 6/22/2011 (SEASONIQUE) 0.15-0.03 &0.01 MG OR TABS (Taking/Discontinued) Sig: 1 TABLET DAILY Class: Historical Med Route: oral Methocarbamol 750 MG OR TABS 90 Tab 0 8/13/2010 11/30/2010 (Taking/Discontinued)
Sig: 1 po qid pm for pain/spasm Class: E-Prescribe Route: oral Multiple Vitamin (MULTIVITAMIN OR) (Taking) Sig: daily Class: 'Historical Med Route: oral
Printed on 7/8/201310:02 AM Page 2 of 823
Kelsey-S.eybold Clinic LAKES AT 610 8900 LAKES AT 610
PATTILLO,DEBORAH J MRN: 07161698
HOUSTON, TX 77054-2525 DOB: 4/1111964, Sex: F KSC COMPLETE CHART Enc. Date:08/13/10
Medication Comments Medication noted and Reviewed with Patient on 06/24/2013 Wanetta R Chopane
Meds Comments as of 8113/2010 Reviewed meds with pt
Discontinued Medications Reason'fOr
Alprazolam 1 MG OR TABS Error Amoxicillin 500 MG OR TABS Treatment Completed Alprazolam 1 MG OR TABS Error Alprazolam 0.25 MG OR TABS Reorder
Ordered Medications • !'''
Amoxicillin-Pot Clavulanate 875-125 MG OR TABS 28 Tab 0 8/13/2010 11/30/2010 (Discontinued)
Sig - Route: 1 TABLET EVERY 12 HOURS - oral Class: E-Prescribe Fexofenadine HC1180 MG OR TABS (Discontinued) 30 Tab 5 8/13/2010 11/30/2010 Sig - Route: 1 TABLET DAILY - oral Class: E-Prescribe Albuterol Sulfate 108 (90 BASE) MCGIACT IN AERS 1 Inhaler 1 8/13/2010 6/22/2011 (Discontinued)
Sig - Route: 2 puffs q 4-6 hours pm for wheezing - inhalation Class: E-Prescribe Diclafenac Sodium 75 MG OR TBEC (Discontinued) 60 Tab 0 8/13/2010 12/6/2010 Sig - Route: 1 TABLET TWICE DAILY - oral Class: E-Prescribe Methocarbamol 750 MG OR TABS (Discontinued) 90 Tab 0 8/13/2010 11/30/2010 Sig - Route: 1 po aid pm for pain/spasm - oral Class: E-Prescribe Benzonatate 200 MG OR CAPS (Discontinued) . 60 Cap 0 8/13/2010 11/30/2010 Sig - Route: 1 CAPSULE 3 TIMES DAILY AS NEEDED - oral Class: E-Prescribe Alprazolam 0.25 MG OR TABS (Discontinued) 30 Tab 0 8/13/2010 6/22/2011 Sig - Route: 1 po bid pm for panic attack - oral
All Results CHEST PA LATERAL [278139321 Resulted: 08/13/10 1108, Result Status: Final result
Printed on 7/8/201310:02 AM Page 3 of 823
Keisey-Seybold a ic LAKES AT 010 ,8900 LAKES AT 610
PATTILLOPESORAH j MRN: 07161698
HOUSTON, TX 77054-2525 DOE: 4/1111084, Sex: F KSC COMPLETE CHART Enc. Date:08113/10
All Results (continued) CHEST PA LATERAL [27813932] (continued) Resulted', 08113/10 1108, Result Status: Anal result
Resulted by:: Patrick M Conoley, MD, FAOR Performed: 08113110'1059 -08/13110 1106 Resulting Lab: RADIOLOGY Narrative: History: Chronic cough dyspnea images: 2 views of the Chest Findings: The lungs are hyperinfiated. No active cardiopulmonary disease is seen There are old, healed fractures of left sided ribs.
Vitals Last Recorded —
Bp putie.
TernP(Src)
108/70 84 99.7 *F (37.6 °C) 20 5' 3" ( rn) 150 lb 3.2 oz (66.13 kg)
(Oral)
:Vitals History Recorded
Jaesoon W Hite, MD Physician 8/1612010 8:06 AM Signed URI This is a new problem. Episode onset 2 weeks ago. The problem has been gradually worsening. The maximum temperature recorded prior to her anivai was 100 -100.8 F. The fever has been present for 1 to 2 daYs. Associated symptoms include congesijon, coughing, rhinorrhea, sinus pain, sneezing, a sore throat and wheezing. Pertinent negatives include no abdominal pain, chest pain, clysuria, ear pain, headaches, nausea, plugged ear sensation, rash, swollen glands or vomiting. Treatments tried: Just finished amoxidllin, albuterol, ac a n This is a new problem. The current episode started in the past 7 days. The problem occurs constantly. The problem is unchanged. The pain is present in the lumbar spine. The pain does not radiate. The pain is at a severity of 7/10, The symptoms are aggravated by bending and twisting. Pertinent negatives include no abdominal pain, bladder incontinence, bowel incontinence, chest pain, dysuria, fever, headaches, leg pain, numbness, paresis, paresthesias, pelvic pain, perianal numbness, tingling, weakness or weight loss. She has tried NSAIDs for the symptoms.
NEW PATIENT:
She has been on xanax daily for anxiety attack But she did not on any other antiartilety med. She reports that the has been on xanax 1 mg I daily but check her recent xanax refill showed from her previous doctor was 0.25 mg 1-2 tabs pm
Printed on 718/2013 10:02 AM Page 4 of.823
Tab 3
Ite 1200 East Main Street
ague City Chiropractic League City, TX 77573 and Sports Medicine Phone: 281-332-3428 Fax: 281-332-7593
January 28, 2011
Patient Deborah Pattillo — Subsequent Report
History The patient is in for re-exam of her left shoulder. She states she had a chronic 2-year history of left shoulder pain that was exacerbated by the motor vehicle collision on 12/2712010. The patient has been noticing that left shoulder pain has continued to get gradually worse within the last few visits. Ms. Patillo notices that her left shoulder feels "loose" and she is able to move her shoulder with her right hand.
Exam DTRs and motor reflexes are within normal limits. Active shoulder range of motion; she has pain in forward flexion throughout the entire motion. She has restriction in internal and external passive shoulder range of motion. Hypertonicity was felt in the infraspinatus and supraspinatus with moderate tenderness to palpation, and she had hypertonicity also in the subscapularis and teres minor with mild tenderness to palpation. There is some laxity in P-A capsule challenge with shoulder in neutral position. All other shoulder orthopedic tests were negative and within normal limits.
Plan Begin ultrasound and interferential therapy to the left shoulder for pain control. Also begin soft tissue myofascial technique to the above-mentioned muscles to reduce adhesions in the muscle and help with inflammation. We will begin a shoulder rehabilitation program with the patient once pain has reached 50% reduction to strengthen surrounding muscles. The patient will continue to be treated 2 x a week. The shoulder will be monitored for approximately 3 weeks and then be re-evaluated.
Brian Sansalone, D.C.
Tab 4
PERSONAL INJURY DAMAGES PJC 28.9
PJC 28.9 Personal Injury Damages—Exclusionary Instruction for Preexisting Condition That Is Aggravated
Do not include any amount for any condition existing before the occurrence in question, except to the extent, if any, that such other condition was aggravated by any injuries that resulted from the occurrence in question.