Randall McDaniel v. Farland Monroe Dindy and Core-Mark Midcontinent, Inc.

• Court: Court of Appeals of Texas
• Decided: March 23, 2023
• Docket: 02-21-00441-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-21-00441-CV ___________________________

RANDALL MCDANIEL, Appellant

V.

FARLAND MONROE DINDY AND CORE-MARK MIDCONTINENT, INC., Appellees

On Appeal from the 348th District Court Tarrant County, Texas Trial Court No. 348-295536-17 Before Kerr and Birdwell, JJ.1 Opinion by Justice Birdwell

1 Justice Wallach originally was a member of the panel. After oral argument it was determined that although he made no rulings in the trial court relevant to this appeal, he had previously been the presiding judge of the district court from which the appeal arises while the case was pending in the that court. Once this information came to his attention, he recused himself, and the case was decided by the remaining two justices of the panel. See Tex. R. App. P. 41.1(b).

2 OPINION

This is a personal injury case. Randall McDaniel was injured when a three-

thousand-pound dolly dislodged from a tractor-trailer rig being driven by Farland

Monroe Dindy and crashed into McDaniel’s vehicle. McDaniel sued Dindy and his

employer, Core-Mark Midcontinent, Inc. (Core-Mark), sometimes referred to jointly

as Cross-Appellants. The jury found: (1) Dindy and Core-Mark negligent in causing

the occurrence, (2) $350,000 in compensatory damages for McDaniel, including

$95,000 in future medical expenses, (3) Dindy grossly negligent and assessed $7,500 in

punitive damages against him, and (4) Core-Mark grossly negligent and assessed

$400,000 in punitive damages against it. The trial court rendered final judgment jointly

and severally against Dindy and Core-Mark for $350,000 in compensatory damages

and awarded $7,500 in punitive damages against Dindy, plus prejudgment interest,

postjudgment interest, and taxable court costs. The trial court granted, in part, Cross-

Appellants’ motion for judgment notwithstanding the verdict (JNOV), denying

recovery to McDaniel for punitive damages against Core-Mark. The trial court denied

those portions of Cross-Appellants’ JNOV that sought to deny McDaniel his recovery

of compensatory damages in toto, future medical expenses of $95,000 in particular,

and recovery of punitive damages against Dindy.

McDaniel appeals the granting of the JNOV, which deprived him of his

recovery of punitive damages against Core-Mark. We will affirm the part of the trial

court’s judgment denying recovery of punitive damages against Core-Mark.

3 Dindy and Core-Mark cross-appeal the partial denial of their JNOV, raising

three issues: (1) legally insufficient evidence to support the negligence verdict against

them because there was no probative expert testimony regarding the standard of care

applicable to them, (2) legally insufficient evidence to support a gross negligence

verdict against Dindy because there was no evidence to show that Dindy had actual or

subjective awareness of the risk involved but nevertheless proceeded in conscious

indifference to the rights, safety, or welfare of others, and (3) legally insufficient

evidence to support an award of future medical damages to McDaniel. Although we

will overrule Cross-Appellants’ first two issues, we will sustain Cross-Appellants’ third

issue and modify the judgment to delete the award of future medical expenses. As

modified, the judgment will be affirmed.

I. Factual Background

This lawsuit arose out of an October 9, 2015 motor-vehicle collision that

occurred while Dindy, who was in the course and scope of employment for Core-

Mark, was driving a truck and towing a trailer with a converter dolly. While Dindy was

driving on Interstate 35, the converter dolly dislodged from the trailer, struck a tow

truck, and then struck the vehicle being driven by McDaniel, causing injuries to

McDaniel. McDaniel filed suit against Dindy and Core-Mark claiming that both were

negligent in causing the collision and resulting injuries and that both were grossly

negligent and should be assessed punitive damages.

4 The evidence at trial will be described in more detail below as necessary to

address the points raised on appeal. By way of overview, Core-Mark’s national

transportation manager testified that he conducted a post-accident investigation which

led him and Core-Mark to conclude that Dindy had failed to properly secure the dolly

before leaving on his trip—which Dindy denied—leading to the dolly’s dislodging

from the trailer and colliding with McDaniel’s vehicle. Dindy testified that he did not

know why the dolly dislodged. Dindy was required by company policy and federal

regulations to do a pre-trip inspection before leaving on the trip in question, which

inspection required checking, among other things, whether the dolly was secure. The

evidence is disputed as to whether Dindy performed the inspection. The Core-Mark

transportation director also testified that Dindy was terminated for his failure to

follow methods for securing the dolly, as documented in Core-Mark’s records.

However, Dindy testified that he was terminated for having an accident within the

first ninety days of his employment with Core-Mark.

There was evidence that Core-Mark utilized an electronic driver logging system

called PeopleNet and that Dindy should have used this system to document the

required pre-trip inspection of his equipment before leaving on this trip; that the

inspection, if done, should have caused Dindy to realize he had not secured the dolly;

and that no pre-trip inspection was recorded by Dindy in the PeopleNet system

before this accident. Further, the PeopleNet records reflected that Dindy had failed to

5 document a pre-trip inspection the day before the accident, as well as other potential

irregularities for the preceding two weeks.

Who was to review the electronic reports, and when, is ambiguous in the

record. Matthew Beard, the Core-Mark corporate representative, testified that at the

end of each day the “supervisor” or “somebody” was supposed to review the

electronic reports “as soon as he [could].” He also testified that “somebody in the

company who [was] receiving these reports should [have] note[d] immediately” if a

driver left the yard without doing a report. Further, he testified that ideally Core-Mark

wanted the daily electronic reports to be reviewed as frequently as they could be and

that daily would have been ideal. However, other than a vague reference to a

“supervisor” or “leadership team” being responsible for making reviews, there was no

evidence as to who exactly was supposed to be monitoring this reporting system, what

monitoring had been done or not done regarding Dindy, and why, or what the

corporate job responsibilities were for those who were supposed to have been

monitoring the system, for purposes of assessing their status as “vice principals.”

McDaniel and his now ex-wife testified about his chronic pain problems and

how his injuries had negatively affected his work and personal life and their

relationship. Voluminous records from multiple health-care providers were

introduced. Two treating pain-management doctors testified that McDaniel had

developed a cervical facet joint syndrome as a result of this collision, and they

described the treatment that he had received, including chiropractic care, medical care

6 and medications, pain injections, nerve-pain blocks, and a rhizotomy. The doctors

testified that his condition is probably permanent and that he will likely need nerve-

pain blocks and a rhizotomy once every year or two for the rest of his life. No expert

testimony of the reasonableness of past or future medical charges was introduced.

Although affidavits regarding the reasonableness of the cost and necessity of past

medical care were filed prior to trial pursuant to Texas Civil Practice and Remedies

Code Section 18.001 and preadmitted at trial, they were later voluntarily withdrawn,

and no jury question regarding past medical expenses was tendered or submitted to

the jury.

The jury verdict, JNOV, and judgment resulted as described above.

II. Standards of Review/Legal Principles

A trial court may disregard a jury verdict and render a JNOV if no evidence

supports the jury finding on an issue necessary to liability or if a directed verdict

would have been proper. See Tex. R. Civ. P. 301; Tiller v. McLure, 121 S.W.3d 709,

713 (Tex. 2003); Edwards v. Chevrolet, 605 S.W.3d 219, 222 (Tex. App.—Fort Worth

2020, no pet.). A directed verdict is proper only under limited circumstances: (1) when

the evidence conclusively establishes the movant’s right to judgment or negates the

opponent’s right or (2) when the evidence is insufficient to raise a material fact issue.

Prudential Ins. Co. of Am. v. Fin. Rev. Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000); Edwards,

605 S.W.3d at 222.

7 We review the granting or denial of a motion for judgment notwithstanding the

verdict under a legal sufficiency standard. Tanner v. Nationwide Mut. Fire Ins.,

289 S.W.3d 828, 830 (Tex. 2009); City of Keller v. Wilson, 168 S.W.3d 802, 809–28 (Tex.

2005); B & W. Supply, Inc. v. Beckman, 305 S.W.3d 10, 21 (Tex. App.—Houston [1st

Dist.] 2009, pet. denied). We view the evidence in the light most favorable to the

verdict. Ingram v. Deere, 288 S.W.3d 886, 893 (Tex. 2009); Edwards, 605 S.W. 3d at 222.

We credit evidence favoring the jury verdict if reasonable jurors could and must

disregard contrary evidence unless reasonable jurors could not. See Tanner, 289 S.W.3d

at 830; Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007). We will

uphold the trial court’s JNOV if no evidence supports the jury’s finding on a vital fact

or if the evidence conclusively establishes the opposite of a vital fact. City of Keller,

168 S.W.3d at 810. “[E]very reasonable inference deducible from the evidence is to be

indulged in” support of the jury’s finding. Bustamante v. Ponte, 529 S.W.3d 447,

456 (Tex. 2017) (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.

1997)). We may sustain a legal sufficiency challenge only when (1) the record discloses

a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or

of evidence from giving weight to the only evidence offered to prove a vital fact,

(3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the

evidence establishes conclusively the opposite of a vital fact. Ford Motor Co. v. Castillo,

444 S.W.3d 616, 620 (Tex. 2014); Norhill Energy LLC v. McDaniel, 517 S.W.3d 910,

916 (Tex. App.—Fort Worth 2017, pet. denied). When a trial court specifies the

8 ground upon which it grants a JNOV, an appellant need only challenge the ground

relied upon by the trial court. Pitts & Collard, L.L.P. v. Schechter, 369 S.W.3d 301,

323 (Tex. App.—Houston [1st Dist.] 2011, no pet.); Edascio, L.L.C. v. NextiraOne

L.L.C., 264 S.W.3d 786, 795 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).

Additionally, we are bound by a heightened standard of review on the jury’s

gross negligence findings because gross negligence must be proven by clear and

convincing evidence. Columbia Med. Ctr. of Las Colinas v. Hogue, 271 S.W.3d 238,

248 (Tex. 2008) (citing Diamond Shamrock Ref. Co., L.P. v. Hall, 168 S.W.3d 164,

170 (Tex. 2005), and quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). The Hogue

court has described this heightened standard:

In a [clear-and-convincing] legal sufficiency review, a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. To give appropriate deference to the factfinder’s conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. This does not mean that a court must disregard all evidence that does not support the finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence.

271 S.W.3d at 248. “‘Clear and convincing’ evidence means the measure or degree of

proof that will produce in the mind of the trier of fact a firm belief or conviction as to

9 the truth of the allegations sought to be established.” Tex. Civ. Prac. & Rem. Code

Ann. § 41.001(2); U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012).

Gross negligence consists of both objective and subjective elements. See Lee

Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001). Plaintiffs must prove by

clear and convincing evidence that (1) when viewed objectively from the defendant’s

standpoint at the time of the event, the act or omission involved an extreme degree of

risk, considering the probability and magnitude of the potential harm to others and

(2) the defendant had actual, subjective awareness of the risk involved but

nevertheless proceeded with conscious indifference to the rights, safety, or welfare of

others. See id.; see also Tex. Civ. Prac. & Rem. Code Ann. § 41.001(11); U-Haul Int’l,

Inc., 380 S.W.3d at 137.

Regarding the objective component, the act or omission must involve “an

extreme degree of risk, considering the probability and magnitude of the potential

harm to others.” Medina v. Zuniga, 593 S.W.3d 238, 247 (Tex. 2019) (quoting Harrison,

70 S.W.3d at 785). “[A]n extreme risk is ‘not a remote possibility of injury or even a

high probability of minor harm, but rather the likelihood of serious injury to the

plaintiff.’” Id. (quoting Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998)).

“An act or omission that is merely thoughtless, careless, or not inordinately risky

cannot be grossly negligent.” Id. at 249 (quoting Transp. Ins. v. Moriel, 879 S.W.2d 10,

22 (Tex. 1994)).

10 To raise a fact issue on the subjective component, there must be legally

sufficient evidence that the actor had actual, subjective awareness of the risk involved

but nevertheless was consciously indifferent to the rights, safety, or welfare of others.

Suarez v. City of Texas City, 465 S.W.3d 623, 633–34 (Tex. 2015). Circumstantial

evidence can be used to prove actual knowledge, but it must “either directly or by

reasonable inference support that conclusion.” Id. at 634 (quoting City of Corsicana v.

Stewart, 249 S.W.3d 412, 415 (Tex. 2008)). “An inference is not reasonable if it is

susceptible to multiple, equally probable inferences, requiring the factfinder to guess

in order to reach a conclusion.” Id. “The defendant need not have anticipated the

precise manner of harm or to whom the injury would befall to have had awareness of

the extreme risk.” Zuniga, 593 S.W.3d at 248.

III. Analysis

(a) McDaniel’s Appeal

McDaniel’s issue on appeal is that the trial court erred in granting Cross-

Appellants’ JNOV motion on jury question 5. We will overrule McDaniel’s issue.

McDaniel’s challenge to the jury’s answer to question 6 (the amount of punitive

damages) is rendered moot by our decision.

Corporations may be liable for punitive damages but only when the act or

omission is that of the corporation, not its ordinary agents or servants. Hammerly

Oaks, Inc. v. Edwards, 958 S.W.2d 387, 391 (Tex. 1997). In adopting Restatement of

Torts § 909 (1939), in King v. McGuff, 234 S.W.2d 403, 405 (Tex. 1950), the Supreme

11 Court held that punitive damages may properly be awarded against a master or other

principal because of the act of an agent if, but only if,

(a) the principal authorized the doing and the manner of the act, or

(b) the agent was unfit, and the principal was reckless in employing him, or

(c) the agent was employed in a managerial capacity and was acting in the scope of employment, or

(d) the employer or a manager of the employer ratified or approved the act.

Id.; see also Hammerly Oaks, Inc., 958 S.W.2d at 391.

The classes of agents or servants considered to be in a managerial capacity are

those characterized as vice principals. Hammerly Oaks, Inc., 958 S.W.2d at 391. These

people consist of four classes of agents or servants:

(a) [c]orporate officers; (b) those who have authority to employ, direct, and discharge servants of the master; (c) those engaged in the performance of nondelegable or absolute duties of the master; and (d) those to whom a master has confided the management of the whole or a department or division of his business.

Id. at 391.

The employee’s title is not dispositive of his status as a corporate officer, but

the category includes one who represents the corporation in its corporate capacity. Id.

at 391. Acts of lower level supervisory employees who are not vice principals are not

legally sufficient to support a finding of gross negligence. Qwest Int’l Commc’ns Inc. v.

AT&T Corp., 167 S.W.3d 324, 326 (Tex. 2005). The burden of proof to establish the

basis of corporate liability for gross negligence of a servant or agent, i.e., vice

principal, rests with the plaintiff. Id.

12 Jury question 5 asked if, by clear and convincing evidence, the harm to

McDaniel resulted from the gross negligence of Core-Mark. Clear and convincing

evidence was properly defined. “Gross negligence” was properly defined using the

objective and subjective elements. There were, however, no instructions for the jury

regarding whose conduct they could consider in answering this question other than

Core-Mark’s.

Although it was uncontroverted that Dindy was in the course and scope of his

employment with Core-Mark during the time in question, it is equally clear that he

was an ordinary servant, and his conduct could not form the basis for a gross

negligence claim against Core-Mark. See id. at 326.

The only other conduct that could arguably support a claim for gross

negligence of Core-Mark, and that to which McDaniel points in his briefing, is Core-

Mark’s “leadership team” or “supervisor” that was supposed to be monitoring the

PeopleNet logging system.2 However, there was no evidence of the identity of the

persons who were supposed to be monitoring the PeopleNet system or their

corporate responsibilities that might qualify them as vice principals. Without such

evidence, we are left to speculate as to whether the “leadership team” or “supervisor”

were vice principals or ordinary employees. Since a gross negligence finding must be

2 There is no evidence that Core-Mark vice principals authorized or ratified Dindy’s conduct in question.

13 supported by clear and convincing evidence, such speculation cannot support a gross

negligence verdict.3 We overrule McDaniel’s issue.

(b) Dindy and Core-Mark’s Cross-Appeal

Dindy and Core-Mark present legal sufficiency challenges to the judgment as

follows:

1. There was legally insufficient evidence to support a negligence verdict

against Dindy and Core-Mark because there was no probative expert

testimony regarding the applicable standard of care for either Dindy or

Core-Mark.

2. There was legally insufficient evidence to support a gross negligence verdict

against Dindy because there was no evidence to show that Dindy had actual

or subjective awareness of the risk involved but nevertheless proceeded in

conscious indifference to the rights, safety, or welfare of others.

3 Additionally, Core-Mark contends that there was no evidence to support a gross negligence finding against it because there was no probative expert testimony that established its standard of care of monitoring. See FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 91 (Tex. 2004). We agree. The standard of care for monitoring of drivers’ electronic logging practices is not something within the knowledge of lay persons, and the Supreme Court held in FFE that a defendant company’s practices or policies are not sufficient to support a negligence finding when expert testimony is required. Likewise, “[t]he mere existence of federal regulations does not establish the standard of care or establish gross negligence per se.” U-Haul Int’l, Inc., 380 S.W.3d at 139. Viewing the evidence even in its most favorable light in support of the verdict, company policy and government regulation was all that McDaniel arguably had to rely on in this regard. We cannot say that this record meets the heightened standard of review to support a gross negligence finding against Core-Mark.

14 3. There was legally insufficient evidence to support an award of future

medical damages of $95,000.

(i) Legally Insufficient Evidence to Support Negligence (Cross- Appellants’ Issue 1)

Cross-Appellants’ first issue is that there was legally insufficient evidence to

support a negligence verdict against them because there was no probative expert

testimony regarding the applicable standard of care. We will address only the legal

sufficiency of the evidence regarding Dindy because Core-Mark conceded that if

Dindy’s negligence was properly supported by the evidence, it would be imputed to

Core-Mark for purposes of ordinary negligence, which would support the judgment

against Core-Mark for compensatory damages.

Cross-Appellants contend that “the FFE Court firmly established that . . .

expert testimony is necessary to establish a trucking company’s standard of care.”

FFE Transp. Servs., 154 S.W.3d at 91. We believe that Cross-Appellants are stretching

the holding in FFE too far.

In FFE, the court noted that the question of whether expert testimony is

necessary to establish the standard of care in a given case is reviewed de novo by the

reviewing court. 154 S.W.3d at 90. It then described the test for determining whether

expert testimony is required to establish a standard of care, using somewhat different

terminology in two places. The court first quoted its earlier opinion in Roark v. Allen,

633 S.W.2d 804, 809 (Tex. 1982), a medical-malpractice case: “Expert testimony is

15 necessary when the alleged negligence is of such a nature as not to be within the experience

of the layman.” Id. at 90 (emphasis added). It then described the test as “whether the

conduct at issue involves the use of specialized equipment and techniques unfamiliar to the

ordinary person.” Id. at 91 (emphasis added). However, the court did not rule so

broadly as to require expert testimony to establish the standard of care in all trucking-

company cases. The tests were applied to the specific facts of that case.

Therefore, we must examine de novo the circumstances of this case to

determine whether expert testimony was required to establish a standard of care.

McDaniel alleged in part—and there was evidence from Core-Mark’s national

transportation manager, Michael Terry, to support—that Dindy’s dolly dislodged and

crashed into McDaniel’s trailer because Dindy had failed to secure the dolly—he did

not connect the safety chains, he did not attach the coupling device onto the trailer,

and he did not secure the pintle hook or close the latch. 4 Terry testified that the use of

the connecting equipment was “common sense” and use of the safety chains is “just

like safety chains on a trailer you pull behind your car. They’re there to—if it does—

does come—come detached, it’s supposed to keep the—the equipment together so it

doesn’t fly off the side of the road.” Given this testimony, and the photographic

evidence in the record, we hold that expert testimony was not required to establish the

4 As Core-Mark’s transportation manager, Terry was responsible for overseeing all driver functions, including safety and accidents. At the time of the occurrence in question, he was the Fort Worth region manager for Core-Mark.

16 standard of care of this allegation of failure to properly secure the dolly. See AKIB

Const. Inc. v. Shipwash, 582 S.W.3d 791, 804–05 (Tex. App.—Houston [1st Dist.] 2019,

no pet.) (holding “in this case, a factfinder applying a ‘commonsense understanding’

could consider the before and after pictures of the steel building and, with reasonable

probability, reach a conclusion that the building was damaged during the dismantling

process,” and thus that no expert witness testimony was necessary to support a

judgment of liability); MEMC Pasadena, Inc. v. Riddle Power, LLC, 472 S.W.3d 379,

404 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (stating failure to install

protective device on machine which would have prevented accident after promising to

install one does not require expert testimony to establish negligence); Alza Corp. v.

Thompson, No. 13-07-00090-CV, 2010 WL 1254610, at *28–29 (Tex. App.—Corpus

Christi–Edinburg Apr. 1, 2010, no pet.) (mem. op.) (holding testimony of corporate

representatives of defendant regarding problems with production of defective

Duragesic pain patches and handling of complaints were sufficient to exempt case

from requirement of expert testimony in negligence claim); Ching Enters., Inc. v.

Barahona, No. 01-07-00454-CV, 2008 WL 4006758, at *6–8 (Tex. App.—Houston [1st

Dist.] Aug. 28, 2008, no pet.) (mem. op.) (considering plaintiff’s lay testimony that

grating machine “lacked a plate device that would have prevented her hands from

getting near the blades” was sufficient to support defendant’s negligence without

expert testimony).

Having determined that expert testimony was not required to establish the

17 standard of care regarding Dindy’s negligence in failing to secure the dolly, we

overrule Cross-Appellants’ first issue. 5

(ii) Legally Insufficient Evidence to Support Dindy’s Gross Negligence (Cross-Appellants’ Issue 2)

Cross-Appellants’ Issue 2 contends that “[t]here was legally insufficient

evidence to support a gross negligence verdict against Dindy because there was no

evidence to show that Dindy had actual or subjective awareness of the risk involved,

but nevertheless proceeded in conscious indifference to the rights, safety, or welfare

of others.” They argue that because of the following evidence, “there is legally

insufficient evidence that Dindy was aware of a specific peril, or that Dindy was aware

that the converter dolly was not properly secured and just didn’t care”:

• Dindy had been a commercial truck driver for 30 years;

• Core-Mark had trained Dindy;

• Core-Mark gave Dindy written instructions on how to secure the converter

dolly;

• Dindy had attached converter dollies over the years;

• Dindy had never before had a converter dolly come loose from a truck or

trailer he was driving/pulling;

Cross-Appellants have not challenged the legal sufficiency of the evidence 5

under an ordinary negligence standard of care not requiring expert testimony.

18 • Dindy believed he had attached the converter dolly properly on October 9,

2015;

• Dindy believed that he had performed a proper pre-trip inspection on

October 9, 2015;

• Dindy did not know why the converter dolly came loose;

• Dindy would not have left the yard if he did not think he had hooked the

safety chains from the converter dolly to the trailer; and

• Dindy attached the converter dolly the same way he did every other time

that he attached converter dollies.

This argument, however, is inconsistent with our standard of review on a legal

insufficiency review of a gross negligence finding:

In a legal sufficiency review, a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. To give appropriate deference to the factfinder’s conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so.

Hogue, 271 S.W.3d at 248 (emphasis added) (quoting Hall, 168 S.W.3d at 170). We

must therefore also review the evidence in support of the jury’s verdict of gross

negligence. Terry testified that

• hooking up trailers was probably the most important part of Dindy’s job;

19 • securing the dolly is common sense;

• the knowledge required to secure the dolly was required for Dindy’s

commercial driver’s license;

• the knowledge to secure the dolly was part of Dindy’s training to pull

double loads like this;

• Terry inspected the tractor, trailer, and dolly after the accident, and he

determined that the dolly had not been properly connected;

• Dindy failed to hook up the safety chains, attach the coupling device onto

the trailer, and secure the pintle hook or close the latch;

• Dindy was terminated for not following methods to hook up the dolly, and

Dindy “[a]bsolutely” did not do what he should have done; and

• it is dangerous to drive without safety chains attached.

Dindy testified that

• he had been a commercial truck driver for 30 years;

• Core-Mark had trained him;

• Core-Mark gave him written instructions on how to secure the converter

• he had attached converter dollies over the years;

• the collision occurred because the dolly came loose from his trailer, but he

did not know why it came loose;

20 • he did everything that he was supposed to do before he left on his trip,

including inspecting the dolly;

• he knew that if the dolly were to become disengaged, it could cause serious

injury or death and that it would even take an “act of God” for it not to

cause serious injury if it came loose;

• he knew that a reasonable and prudent truck driver would make sure that

the dolly would not come off;

• he was supposed to do a pre-trip inspection and record it in the PeopleNet

system;

• doing a pre-trip inspection is required by Core-Mark policy and federal

regulation;

• pre-trip inspection included checking to see that the dolly is secured;

• pre-trip inspection is a safeguard to make sure everything has been done

correctly;

• pre-trip inspection is designed to determine if there is a safety issue or

hazard;

• pre-trip inspection will reveal if the chains are not properly connected;

• he understood, without anyone having to explain it to him, the importance

of documenting everything;

• he always logs his pre-trip inspection in the PeopleNet system;

21 • failure to do a pre-trip inspection is possibly consciously putting others at

risk of serious harm or injury; and

• there is no pre-trip inspection documented in the PeopleNet log before he

left the yard and was involved in the collision in question.

This evidence constitutes legally sufficient evidence to support the gross

negligence finding against Dindy. He was consciously aware of the need to secure his

dolly before leaving on the trip, he knew how to secure his dolly, he knew that the

failure to secure the dolly would put others on the road at serious risk of serious injury

or death, he knew that he had a duty under company policy and federal regulations to

do a pre-trip inspection that was designed to detect safety hazards in the connections

of the dolly, and he knew that he was required to document his pre-trip inspection in

the PeopleNet system. Although there is a dispute in the testimony about whether he

did secure the dolly and do a pre-trip inspection, we are required to presume that the

jury resolved these factual disputes in accordance with its verdict. See J.F.C., 96 S.W.3d

at 266; Rayner v. Dillon, 501 S.W.3d 143, 148 (Tex. App.—Texarkana 2016, pet. dism’d

by agr.). From this evidence, the jury could have reasonably inferred that Dindy chose

to drive his vehicle without securing his dolly, doing a pre-trip inspection, or both and

that doing so would expose others on the road to a risk that would require an “act of

God” to prevent serious harm. This evidence is legally sufficient to support the jury’s

finding of the objective-and-subjective-awareness prongs of the gross negligence test.

22 See Rayner, 501 S.W.3d at 150–52; see also USA Truck, Inc. v. West, 189 S.W.3d 904,

909 (Tex. App.—Texarkana 2006, pet. denied) (“Given that [the driver] testified he

was aware his actions posed a risk, and given the extreme circumstances surrounding

his actions, the jury could have reasonably concluded that [the driver] was not only

aware his actions created a risk, but that he was also aware of the magnitude of that

risk.”). We overrule Cross-Appellants’ Issue 2.

(iii) Legally Insufficient Evidence to Support Future Medical Expenses (Cross-Appellants’ Issue 3)

Cross-Appellants contend that the damages evidence and testimony elicited at

trial was legally insufficient to support an award of $95,000 in future medical

expenses. Part of Cross-Appellants’ argument is that there is no probative evidence of

the reasonable costs of past or future medical expenses upon which a judgment for

future medical expenses could be based. Because our disposition of this argument is

dispositive of this point, we need not address Cross-Appellants’ other arguments

under this issue.

The case law regarding legal sufficiency of the evidence for awards for future

medical expenses has essentially been developed by the various courts of appeals

within the general parameters of legal sufficiency review established by the Supreme

Court. Columbia Med. Ctr. of Las Colinas v. Bush ex rel. Bush, 122 S.W.3d 835, 842,

863 (Tex. App.—Fort Worth 2003, pet. denied). Certain propositions are generally

cited by the various courts of appeals, for example:

23 • the plaintiff must show that there is a reasonable probability that medical expenses will be incurred in the future, id. at 862–63; see also Brownsville Pediatric Ass’n v. Reyes, 68 S.W.3d 184, 191 (Tex. App.—Corpus Christi– Edinburg 2002, no pet.); City of San Antonio v. Vela, 762 S.W.2d 314, 321 (Tex. App.—San Antonio 1988, writ denied); Hughett v. Dwyre, 624 S.W.2d 401, 405 (Tex. App.—Amarillo 1981, writ ref’d n.r.e.);

• the plaintiff is not required to establish the need for future medical consequences of his injury by expert testimony based on reasonable medical probability, Bush, 122 S.W.3d at 863; see also Whole Foods Mkt. Sw., L.P. v. Tijerina, 979 S.W.2d 768, 781 (Tex. App.—Houston [14th Dist.] 1998, pet. denied); Furr’s, Inc. v. Logan, 893 S.W.2d 187, 194 (Tex. App.—El Paso 1995, no writ); Gladewater Mun. Hosp. v. Daniel, 694 S.W.2d 619, 621 (Tex. App.— Texarkana 1985, no writ); but, to sustain an award of future medical expenses, “the plaintiff must present evidence to establish that in all reasonable probability, future medical care will be required and the reasonable cost of that care,” Gunn v. McCoy, 554 S.W.3d 645, 671 (Tex. 2018) (emphasis added) (quoting Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 828 (Tex. App.—Houston [1st Dist.] 1999, pet. denied)); see also Bill Miller Bar-B-Q Enters., Ltd. v. Gonzales, No. 04-04-00747-CV, 2005 WL 2176079, at *2 (Tex. App.—San Antonio Aug. 24, 2005, pet. denied) (mem. op.);

• the reasonable value of future medical care may be established by evidence of the reasonable value of past medical treatment, Perez v. Williams, No. 02- 21-00395-CV, 2022 WL 17351581, at *9, *10 (Tex. App.—Fort Worth Dec. 1, 2022, no pet.) (mem. op.); see also Harvey v. Culpepper, 801 S.W.2d 596, 599 (Tex. App.—Corpus Christi 1990, no writ); City of Rosenberg v. Renken, 616 S.W.2d 292, 293 (Tex. App.—Houston [14th Dist.] 1981, no writ); Thate v. Tex. & Pac. Ry., 595 S.W.2d 591, 601 (Tex. App.—Dallas 1980, writ dism’d);

• “[a]n award of future damages in a personal injury case is always [somewhat] speculative,” Perez, 2022 WL 17351581, at *9 (citing Pipgras v. Hart, 832 S.W.2d 360, 365 (Tex. App.—Fort Worth 1992, writ denied)); “[l]ife expectancy, medical advances, and the future cost of products, services[,] and money are not matters of certainty,” id. (quoting Pipgras), and thus “[t]he jury is instead asked to determine what medical expenses are ‘reasonabl[y] probab[le]’” to be incurred in the future, id. (first quoting Antonov v. Walters, 168 S.W.3d 901, 908 (Tex. App.—Fort Worth 2005, pet. denied), and then citing Bush, 122 S.W.3d at 862–63); in making that

24 determination, a jury may “extrapolate an award of future damages from proof of other matters” such as the medical care rendered before trial, the nature of plaintiff’s injuries, and the plaintiff’s condition at the time of trial, id. (first citing Antonov, 168 S.W.3d at 908, and then citing Bush, 122 S.W.3d at 863, and Pipgras, 832 S.W.2d at 365); see also LMMM Houston #41, Ltd. v. Santibanez, No. 01-16-00724-CV, 2018 WL 4137971, at *10 (Tex. App.— Houston [1st Dist.] Aug. 30, 2018, no pet.) (mem. op.); Nat’l Freight, Inc. v. Snyder, 191 S.W.3d 416, 426 (Tex. App.—Eastland 2006, no pet.); Bill Miller Bar-B-Q, 2005 WL 2176079, at *2;

• an award of future medical expenses rests within the sound discretion of the jury, and appellate courts are hesitant to disturb a factfinder’s conclusion regarding an award of future damages. Antonov, 168 S.W.3d at 908; see also LMMM Houston #41, Ltd., 2018 WL 4137971, at *11.

Despite these well-accepted general principles, we are presented with a

question of apparent first impression for this court, i.e., whether a judgment based on

a jury verdict for future medical expenses that is otherwise supported by evidence of

other factors such as the nature and extent of medical care rendered before trial, the

permanent nature of plaintiff’s injuries and need for future care, and the plaintiff’s

condition at the time of trial, is supported by legally sufficient evidence if there is no

probative evidence of the reasonable cost of past medical care or the reasonable cost of

future medical care. Other courts of appeals have split on this question. We will hold

that the award is not supported by legally sufficient evidence under these

circumstances.

The evidence reflected that McDaniel, age 46 on the date of the occurrence,

developed a cervical facet joint syndrome as a result of this collision. This syndrome

involves damage to a nerve, causing pain. There was testimony on the debilitating

25 nature of McDaniel’s pain and the negative impacts on his life from suffering from

chronic pain. His treatment prior to trial included chiropractic care and physician pain

management including medications, multiple injections, cervical-medial-nerve-branch

blocks, and rhizotomy of the affected nerve. The medical testimony from his treating

physicians, Dr. Gregory Gardner (family practice and pain medicine) and Dr. Bradley

Eames (anesthesiologist and pain medicine), reflected that the facet joint syndrome

was permanent and that McDaniel would need additional nerve blocks and

rhizotomies every one to two years for the rest of his life. Although medical expense

affidavits under Texas Civil Practice and Remedies Code Section 18.001 were filed

and pre-admitted, they were subsequently withdrawn. See Tex. Civ. Prac. & Rem.

Code Ann. § 18.001. McDaniel testified he had paid $6,150 for the rhizotomy and that

he expected to incur similar amounts in the future for similar services. The billing

record for this procedure reflected payments by McDaniel of $2,300.

A letter from Dr. Gardner, dated February 13, 2019, recited that McDaniel’s

estimated future medical care would include MRIs; repeat cervical-medial-branch

blocks, rhizotomies, or both; and rehabilitative therapy. He stated that the cervical

medial branch blocks averaged $1,350 each and that McDaniel could require up to

three blocks every one to two years. Dr. Gardner further stated that physical

rehabilitation cost $200 per session with up to 24 sessions per year. He could not

comment on the cost of the rhizotomy or MRI. He made no comments on the

reasonableness of any of these charges.

26 There was also a treatment-record entry by a chiropractor, John Kaphart,

BSDC, on February 10, 2016, that McDaniel had a high probability of frequent

exacerbations of his problems and that in reasonable medical probability he would

incur future medical expenses estimated at $1,200 per year. Dr. Kaphart made no

reference to the reasonableness of the anticipated charges.

In short, although there was evidence reflecting charges that were incurred in

the past and estimates of future medical expenses, there was no expert testimony

regarding the reasonableness of McDaniel’s past medical expenses or anticipated future

medical expenses.

Our court has not dealt with this specific issue before. Our previous cases

involved appellate records that included evidence that supported the amount of

reasonable future medical costs: Perez, 2022 WL 17351581, at *7–8 (factual sufficiency

review with medical-expense affidavits for past medical expenses and expert

testimony); Antonov, 168 S.W.3d at 908–09 (expert testimony); Bush, 122 S.W.3d at

863–64 (expert testimony); and Pipgras, 832 S.W.2d at 366 (expert testimony).

We will first address cases from our sister courts that have addressed similar

situations. A similar case supporting affirmance in this case is the Bill Miller Bar-B-Q

Enterprises, Ltd. v. Gonzales case. 2005 WL 2176079, at *1. Gonzales injured her back

when she fell on a defective toilet seat in the barbecue restaurant. Id.

The court summarized the medical evidence as follows:

27 Gonzales’s physician, Dr. Mario Bustamante, testified that Gonzales presented to him with complaints of low back pain radiating down her left leg. Her symptoms were consistent with her diagnosis of a herniated lumbar disk with a small fragment extrusion. Dr. Bustamante treated her conservatively with a series of three epidural steroid injections, which improved Gonzales’s condition but did not eliminate her pain. He indicated that when he last saw Gonzales she had continuing back pain and slightly improved leg pain. When asked about Gonzales’s long-term prognosis, Dr. Bustamante stated that her condition “will require fairly close follow-up and the treatment will be based on the patient’s symptomatology.” Absent a worsening condition, such as paralysis or loss of muscle control, surgery would not be recommended. Additionally, pain without neurological deficit would be treated conservatively, such as with epidural steroid injections. He stated that a physician could administer a three-shot series of injections as often as every year to alleviate an individual’s pain. According to Dr. Bustamante, these epidural injections cost up to $2,000 per shot.

Id. at *2 (footnote omitted).

After reducing the future medical expenses award from $50,000 to $26,000 due

to lack of proof of need for future injections costing $24,000, the court affirmed the

balance of the jury’s award based on Dr. Bustamante’s testimony, Gonzales’s medical

condition and past treatment, and the jury’s award of past medical expenses of

$7,330. 6 Id. at *5. In her concurring and dissenting opinion, however, Justice Duncan

pointed out that there was no expert testimony that the charges for the proposed

future treatment were reasonable, for which reason she would have reversed the trial

court’s judgment awarding future medical expenses. Id. (Duncan, J., concurring and

dissentinting).

6 The opinion is silent regarding whether there was evidence of reasonableness of the past medical charges. It just states that such was the amount shown as incurred.

28 Two cases that support reversal are Rosenboom Machine & Tool, Inc., 995 S.W.2d

at 828, and LMMM Houston #41, Ltd., 2018 WL 4137971, at *13–14. In Rosenboom, a

product liability case, Machala was sitting in a wheelchair being hoisted into a van.

Rosenboom, 995 S.W.2d at 819. The hoist failed and dropped her chair. Id. According to

her doctor, she suffered a vertebral fracture requiring hospitalization. Id. at 824, 826.

According to her family, this hospitalization lasted three to four weeks. Id. at 828. She

suffered severe pain, ongoing pain and disability, and additional medical treatment

until trial. Id. The parties stipulated that she had incurred reasonable and necessary

past medical expenses of $9,596.04. Id. The jury found, and the trial court awarded,

future medical expenses of $10,000. Id. at 820. The court of appeals reversed the

award of future medical expenses, holding that there was legally insufficient evidence

to support the award because there was no testimony establishing in reasonable

probability that Machala would require future care and the cost of such care. Id. at

828.

In LMMM, Santibanez tripped and fell at LMMM’s meat market. LMMM

Houston #41, Ltd., 2018 WL 4137971, at *1. He sought recovery for personal injuries

under a premises liability theory. Id. The jury found in Santibanez’s favor, awarding a

variety of damages, including future medical expenses of $120,000. Id. at *4. The trial

court reduced that amount to $20,000 in response to LMMM’s insufficient evidence

JNOV. Id. On cross-appeal, Santibanez challenged the granting of the JNOV,

29 contending that there was legally sufficient evidence to support the award of

$120,000 in future medical expenses. Id. at *9.

The evidence revealed that Santibanez had received extensive chiropractic care

and orthopedic care for low back, knee, and foot complaints and a neurological

referral for headache and memory issues. Id. at *11. He had an MRI of his back and

physical therapy. Id. As in our case, the court noted that the record contained

voluminous medical records from Santibanez’s multiple health-care providers, but

there was no testimony or affidavit proof of the reasonableness of the past medical

expenses and proof of such for future medical expenses. Id. at *12–13. Although

Santibanez testified that his past medical expenses totaled $19,396 (including a

breakdown by provider), and that he expected his future care to cost the same as his

past care, the court noted,

Although there is evidence to show that in all reasonable probability Santibanez will require some medical care in the future, the evidence of the actual cost of such future medical care is minimal at best. Regarding the cost of his future medical care, the only evidence in the record is Santibanez’s testimony as to the cost of his past medical care, which totaled $19,396, and his opinion that if he were to continue treatment at the Southeast Chiropractic Center or with Dr. Rodriguez, which he was not at the time of trial, he would expect the costs to be similar to what he had been previously charged in regard to those two specific health care providers. But neither Santibanez’s testimony nor any other evidence in the record can support the jury’s award of $120,000 of future medical expenses. See Rosenboom Mach., 995 S.W.2d at 828 (insufficient evidence supported jury’s award of $10,000 for future medical expenses where no testimony established cost of future medical care).

30 Id. at *13 (emphasis added). The court followed its rationale in Rosenboom and affirmed

the trial court’s JNOV. Id. at *13–14.

In order to resolve this issue, we will first return to one of the general

principles underlying the review of awards of future medical expenses, that to recover

future medical expenses “the plaintiff must present evidence to establish that in all

reasonable probability, future medical care will be required and the reasonable cost of that

care.” Rosenboom, 955 S.W.2d 828 (emphasis added). So, how does one prove the

reasonable cost of future medical care? The preferred method is to establish future

medical expenses through expert medical testimony. Antonov, 168 S.W.3d at 908.

Here, no expert evidence on the reasonable cost of future care was offered.

What alternative is there to establishing the reasonable cost of future care other

than by expert testimony? The reasonable value of future medical care may be

established by evidence of the reasonable value of past medical treatment. See Whole

Foods Mkt., 979 S.W.2d at 781; Thate, 595 S.W.2d at 601. What is necessary to prove

reasonableness of past medical care? Generally, expert testimony is required to

establish that past medical expenses are reasonable. Perez, 2022 WL 17351581, at *6.

While a physician is usually the expert utilized for this task, other individuals may

qualify to opine on that topic depending on the procedural tools involved. See In re

Allstate Indem. Co., 622 S.W.3d 870, 876 (Tex. 2021); Gunn, 554 S.W.3d at 674; Perez,

2022 WL 17351581, at *6. In this case there was no testimony or documents in

evidence that addressed the reasonableness of past medical expenses. The only

31 evidence about past medical expenses was the amount paid, which is legally

insufficient to support a recovery of past or future medical expenses. Cotton Patch Café

v. McCarty, No. 2-05-082-CV, 2006 WL 563307, at *4 (Tex. App.—Fort Worth 2006,

no pet.) (mem. op.).

While acknowledging that awards of future medical expenses generally rest in

the sound discretion of the factfinder because of the uncertainties involved, we are

also cognizant of the fact that juries cannot be left to merely speculate about the

reasonable cost of future medical expenses. Harvey, 801 S.W.2d at 599 (“We will not

affirm an award of future medical expenses based on speculation.”). Because there

was no probative evidence of reasonable costs of either past or future medical

expenses from which the jury could make an assessment of reasonable future medical

expenses, we hold that the record in this case does not contain legally sufficient

evidence of the reasonable cost of future medical expenses to support the jury’s

answer to question 2(g) and the court’s judgment based thereon. We sustain Cross-

Appellants’ third issue.

IV. Conclusion

We overrule McDaniel’s issue on appeal. We overrule Cross-Appellants’ first

two issues on appeal, but we sustain their third issue. We will modify the judgment to

remove the award of future medical expenses for McDaniel. The judgment will be

affirmed as modified.

32 /s/ Wade Birdwell Wade Birdwell Justice

Delivered: March 23, 2023