PNS Stores, Inc. v. Munguia

484 S.W.3d 503, 2016 Tex. App. LEXIS 261, 2016 WL 350000
CourtCourt of Appeals of Texas
DecidedJanuary 12, 2016
DocketNO. 14-14-00319-CV
StatusPublished
Cited by28 cases

This text of 484 S.W.3d 503 (PNS Stores, Inc. v. Munguia) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
PNS Stores, Inc. v. Munguia, 484 S.W.3d 503, 2016 Tex. App. LEXIS 261, 2016 WL 350000 (Tex. Ct. App. 2016).

Opinion

SUBSTITUTE OPINION

Ken Wise, Justice

Appellant PNS Stores, Inc., appeals from a final judgment awarding appellee Rene Munguia $1,048,500 in damages following a'jury trial on Munguia’s suit for injuries sustained when he was hit on the head by two bottles of deck wash that fell from a shelf at a Big Lots store where he was shopping with his son. PNS Stores, the lessee and operator of the store, contends that the trial court erred by excluding expert testimony and by denying its motion for new trial because the evidence is legally and factually insufficient to .support the damages awarded and the damages are excessive. Alternatively, PNS requests a suggestion of remittitur. Because the evidence is sufficient to support some, but' not all, of the damages awarded, we suggested-a remittitur to reduce the award to an amount supported by the evidence. Munguia has timely filed a remitti-tur. We therefore modify the trial court’s judgment and affirm as modified.

[508]*508Factual Background

On April 15, 2011, Munguia and his son, Rene Jr., went to a Big Lots store in Pasadena to buy a trash can for Rene Jr.’s apartment. While looking for the trash cans, Munguia saw several bottles on the floor of the aisle in which he and Rene Jr. were walking, and witnessed one or two more bottles fall from a shelf. The bottles were 32-ounce bottles of Deck Wash that fell from a top shelf about five feet high. There were no warning cones or signs on the aisle.

As Munguia neared the fallen bottles, a store employee named Merrill Northrup approached him from the other side of the aisle, where he had been stocking merchandise on the shelf ..behind the, Deck Wash. Northrup seemed irate and uttered something like “nobody knows how to stock.” Munguia reached down to help Northrup pick up the fallen bottles. As Munguia was standing up, two more bottles fell and hit him on the side of the head. Northrup acknowledged in a witness statement that he had knocked the Deck Wash off the shelf and it had hit Munguia.1

One of the bottles fell two. to three feet and hit Munguia “square on the ear,” sending him back down to one knee. Munguia was dazed and disoriented, but did not' know how long he was down or whether he lost consciousness., Rene Jr. thought they should call an ambulance, but Munguia insisted he was fíne. Munguia and Rene Jr. then left the aisle and walked to the front of the store to find a manager. After a few minutes, manager Lucas Robi-cheaux appeared. Robicheaux spoke with Munguia, Rene Jr., and Northrup, and prepared an incident report, that included Northrup’s statement. ■ At trial, Robi-cheaux confirmed that the report correctly stated that Munguia’s ear was red from the impact of the bottle of Deck Wash, and that Northrup was the stocker who had dislodged the bottles that fell from the top shelf of the aisle. He testified that Mung-uia was friendly and did not appear to be faking an injury.

Rene Jr. drove Munguia home. Mung-uia was nauseated and tried to rest. That evening, Munguia sought medical attention at a RediClinic in Pasadena for symptoms of nausea, weakness, tiredness, constant buzzing in his ears, and- a sensitivity to light in his right eye. Although the Redi-Clinic staff advised Munguia to go to an emergency room for further evaluation of his head trauma, Munguia instead went home.

But Munguia’s symptoms persisted. On April 18, Munguia went to the emergency room at Memorial Hermann Hospital. There, Munguia was examined, given a CAT scan, and told that he more than likely had a concussion. He was instructed to rest for 7-10 days, and to see a specialist if his symptoms did not improve. Munguia’s symptoms did not improve and he developed soreness and stiffness in his neck and shoulder. Munguia sought further treatment at Doctors Clinic, where he was prescribed physical therapy and exercises for the neck and shoulder problems. Although those ailments eventually became manageable for Munguia, the dizziness and ringing in his ears did not resolve and Munguia was advised to see a neurologist.

In August 2011, .Munguia saw a neurologist, Dr. Djamchid Lotfi, because he was [509]*509still suffering headaches, dizziness, weakness, ringing in his ears, and sensitivity to light. Dr. Lotfi believed that Munguia had suffered a closed head injury and had post-traumatic headaches and dizziness. He recommended Munguia have magnetic resonance imaging (MRI) and magnetic resonance angiography (MRA) testing of the brain and related circulatory systems. Dr. Lotfi also prescribed' medications for Munguia, but could not tell him when or if he would ever recover. By the time of trial, Dr. Lotfi had treated Munguia for over two years but, except for the sensitivity to light, his symptoms continued. In addition, Munguia began having problems with memory loss and a decline in the quality of his life, including his ability to work as an actor and pursue his hobbies. Munguia’s relationship with his wife was also negatively affected, as well as his interactions with his two grandchildren, which Munguia and his wife were raising.

In April 2013, Munguia was evaluated by a neuropsychologist, Dr. Richard Pollock, Dr. Pollock’s area of expertise is in the diagnosis of cognitive and emotional impairments. Dr. Pollock’s evaluation included an extensive interview and approximately 25 separate tests administered over thé course of eight hours. While Munguia performed well on some of the tests, he performed poorly on others. Dr. Pollock diagnosed Munguia with a cognitive disorder, major depressive disorder, and organic brain injury, and concluded Munguia’s condition was consistent with a concussion.

At trial, Dr. Pollock explained that, most of the time, the symptom^ of concussion victims usually resolve within six months, but some .require a longer recuperation period, and a .small percentage of those people “have permanent residuals,” Pollock also testified that, to a reasonable degree of neuropsychological probability, he believed the incident at the Big Lots store was the event that gave rise .to Munguia’s acquired decreased mental functions.

PNS Stores presented the testimony of two medical experts to rebut the testimony of Munguia’s treating physicians. The first, Dr. Stephen Croft, a board certified neurologist, performed an independent medical examination of Munguia. Dr. Croft opined that Munguia sustained a mild traumatic brain injury, but his symptoms would have resolved in a relatively short period of time and his current complaints were not related to the incident at Big Lots. Dr. Croft also opined that peripheral neuropathy, not the impact of the Deck Wash, was the cause of some of his symptoms, Next, Dr. William Daily, a neuropsychologist, disputed Dr. Pollock’s interpretation of the results-of his testing and his opinions. Dr. Dailey concluded that Munguia sustained a concussion or a mild traumatic brain injury and that he had recovered and did not suffer any cognitive dysfunction related to the incident at Big Lots.

Before PNS' Stores called its liability expert, Rhonda Harper, Munguia’s counsel objected to her. qualifications and the foundation for her opinions. Outside the jury’s presence, PNS Stores’s counsel argued that Harper was qualified because- of her. education and industry experience in the marketing, display, and stocking of products in large, “big box” stores like Big Lots. PNS Stores’s counsel also argued that Harper had a foundation for her opinions because she had viewed photographs of the Big Lots’s display of the Deck Wash.

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Cite This Page — Counsel Stack

Bluebook (online)
484 S.W.3d 503, 2016 Tex. App. LEXIS 261, 2016 WL 350000, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pns-stores-inc-v-munguia-texapp-2016.