Werner Co. v. J. DeVallee

• Court: Court of Appeals of Texas
• Decided: March 25, 2021
• Docket: 02-19-00043-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-19-00043-CV ___________________________

WERNER CO., Appellant

V.

J. DEVALLEE, APPELLEE

On Appeal from the 442nd District Court Denton County, Texas Trial Court No. 2011-40709-362

Before Kerr, Birdwell, and Wallach, JJ. Memorandum Opinion by Justice Birdwell MEMORANDUM OPINION

In this products-liability case, appellant Werner Co. appeals a sizeable judgment

in favor of appellee John DeVallee. Werner challenges the legal sufficiency of the

evidence to support the core elements of DeVallee’s products-liability claim, as well as

the factual sufficiency of the evidence to support his damages. We find the evidence

legally sufficient to bear out DeVallee’s design-defect theory. But we agree with Werner

that at least one category of future damages was unsupported by factually sufficient

evidence. We therefore suggest a remittitur.

I. Background

On February 16, 2011, DeVallee went to Oklahoma to make sales calls for his

employer Enpro Distributing, which sold window blinds. While DeVallee was in the

area, Enpro sent him to repair a broken chain on a set of blinds at an AT&T store.

DeVallee entered the store with a four-foot Werner ladder that he had purchased the

month before. He set the ladder up beneath the blinds, climbed it, and began working

on the chain.

At some point, the ladder tipped over to the left, and DeVallee with it. There

were differing accounts of how the accident occurred. According to DeVallee, he was

standing on the second step, squarely centered and working on the chain directly in

front of him when something caused him to fall; he testified that his recollection was

foggy due to his injuries and loss of consciousness. According to a store employee

2 named Thomas Vance, DeVallee was on the third step of the ladder, reaching up to the

top of the blinds and leaning off to the left when he lost his balance.

When DeVallee tried to catch himself, he broke his right wrist and cracked his

tooth. The wrist injury required multiple surgeries and left DeVallee with persistent

pain and limited mobility. As relevant here, DeVallee sued Werner claiming that the

ladder was defectively designed and marketed.

At trial, DeVallee’s expert L.D. Ryan told the jury that the ladder suffered from

a design defect: the ladder was overly flexible and allowed an ordinary user to

inadvertently twist or “rack” the ladder several inches as he climbed it. According to

Ryan, when an average ladder is racked, its legs are unevenly placed such that one leg

dangles in the air, and it is inherently unstable and liable to shift underneath the user

“like a bucking bronco.” He theorized that the racking problem might have been

exacerbated by the design of the ladder’s front legs, which had a C-shaped design that

could rotate when the ladder was under a load. Ryan opined that DeVallee must have

inadvertently twisted the ladder when he climbed it and that the resulting instability

caused him to fall. By Ryan’s account, this flexible play in the ladder could be limited

by at least three different feasible designs that would cost-effectively enhance the

ladder’s rigidity, and thus safety, without impairing its utility.1

1 A lesser aspect of Ryan’s testimony was that due to the poor design of the ladder’s legs, the front left leg of the ladder might have buckled under DeVallee, causing him to fall. Similarly, DeVallee testified that he believed the ladder crumpled

3 Various other witnesses also testified at trial. DeVallee presented expert medical

testimony concerning his injury and treatment, as well as his pain and medical needs.

DeVallee’s brother told the jury about the heavy toll that the accident had taken on

DeVallee and his quality of life. Werner’s expert and corporate representative Frederick

Bartnicki disputed the notion that the ladder was defective; he testified that the ability

to twist or rack is not a defect but an essential feature that allows the ladder to be safely

used on uneven surfaces.

After the close of the evidence, the jury found that the ladder had design and

marketing defects that caused various forms of damages in a total amount of

$4,791,582.78. Werner appeals.

II. Legal Sufficiency of the Evidence on Defective Design

In its first issue, Werner asserts that the evidence is legally insufficient to show

that the ladder suffered from a design or marketing defect and that any defect caused

DeVallee’s injury. As to defective design, Werner primarily relies on the evidence that

it presented at trial to support the ladder’s safety, to show that alternative designs would

not meet the same needs, etc. However, the jury could have rationally disregarded that

evidence and instead focused on the countervailing evidence that DeVallee presented

concerning the same issues. As we explain, DeVallee’s evidence provides more than a

underneath him. However, aside from these two fleeting mentions, DeVallee produced no further evidence to support this lesser defect theory, and we therefore generally confine our discussion of alleged design defects to Ryan’s racking theory.

4 scintilla of support for each of the five factors by which we evaluate whether the ladder

was defective.

We may sustain a legal-sufficiency challenge only when (1) the record bears no

evidence of a vital fact, (2) the rules of law or of evidence bar the court 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 conclusively

establishes the opposite of a vital fact. Shields L.P. v. Bradberry, 526 S.W.3d 471, 480

(Tex. 2017). In determining whether legally sufficient evidence supports the finding

under review, we must consider evidence favorable to the finding if a reasonable

factfinder could and must disregard contrary evidence unless a reasonable factfinder

could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of

Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005). We indulge “every reasonable

inference deducible from the evidence” in support of the challenged finding. Gunn v.

McCoy, 554 S.W.3d 645, 658 (Tex. 2018).

Anything more than a scintilla of evidence is legally sufficient to support a

finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); Leitch v.

Hornsby, 935 S.W.2d 114, 118 (Tex. 1996); see also 4Front Engineered Sols., Inc. v. Rosales,

505 S.W.3d 905, 909 (Tex. 2016) (“The evidence is legally sufficient if . . . there is more

than a scintilla of evidence on which a reasonable juror could find the fact to be true.”).

Scintilla means a spark or trace. Scintilla, Black’s Law Dictionary (10th ed. 2014). More

5 than a scintilla exists if the evidence rises to a level that would enable reasonable and

fair-minded people to differ in their conclusions. Rocor Int’l, Inc. v. Nat’l Union Fire Ins.,

77 S.W.3d 253, 262 (Tex. 2002); Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711

(Tex. 1997). On the other hand, when the evidence offered to prove a vital fact is so

weak that it creates no more than a mere surmise or suspicion of its existence, the

evidence is no more than a scintilla and, in legal effect, is no evidence. King Ranch, Inc.

v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); Kindred v. Con/Chem, Inc., 650 S.W.2d 61,

63 (Tex. 1983).

To recover on a products-liability claim based on an alleged design defect, a

plaintiff must prove that (1) the product was defectively designed so as to render it

unreasonably dangerous, (2) a safer alternative design existed, and (3) the defect was a

producing cause of the injury for which the plaintiff seeks recovery. Genie Indus., Inc. v.

Matak, 462 S.W.3d 1, 6 (Tex. 2015). Whether a defective design renders a product

unreasonably dangerous depends on whether the product’s risks outweigh its utility,

considering a five-factor test: (1) the utility of the product to the user and to the public

as a whole weighed against the gravity and likelihood of injury from its use; (2) the

availability of a substitute product which would meet the same need and not be unsafe

or unreasonably expensive; (3) the manufacturer’s ability to eliminate the unsafe

character of the product without seriously impairing its usefulness or significantly

increasing its costs; (4) the user’s anticipated awareness of the dangers inherent in the

product and their avoidability because of the general public knowledge of the obvious

6 condition of the product, or of the existence of suitable warnings or instructions; and

(5) the expectations of the ordinary consumer. Id. at 9–10.

A. The utility of the product to the user and to the public as a whole weighed against the gravity and likelihood of injury from its use

According to Ryan, the ladder in question racked excessively, and he testified

concerning the dangers of such a ladder. Ryan explained that when a ladder is twisted

or racked, the ladder becomes unstable, and that instability directly contributes to the

risk of injuries “because it’s like a bucking bronco. The thing will move on you.” Ryan

testified that dating back to the 1970s, manufacturers had documented the need to

address racking in order to make ladders safe. Ryan tested the model of ladder that was

involved in DeVallee’s accident, and he found that even under moderate stress, the

ladder racked between 5.75 and 8.25 inches.

Moreover, the primary evidence concerning the ladder’s alleged benefits was

flawed. According to Werner’s expert, the principal virtue of designing a ladder to allow

significant racking is that it is conducive to use on uneven surfaces: the twisting and

flexing of the ladder allows the legs to adjust to the contours of uneven terrain.

However, in its written warnings on the ladder, Werner forbade using the ladder on

uneven surfaces. Thus, the supposed benefit of the racking feature was forbidden to

all prudent users. Werner’s argument concerning the benefits of racking is self-

defeating. See Jackson v. Michelin N. Am., Inc., No. 07-16-00325-CV, 2018 WL 4323624,

7 at *5 (Tex. App.—Amarillo Sept. 10, 2018, pet. denied) (mem. op.) (reasoning that a

products-liability party’s “circuitous reasoning defeats itself”).

To combat DeVallee’s case on the relative merits and demerits of a racking

ladder, Werner also introduced statistics reflecting that relatively few injuries had been

reported regarding this particular model of ladder. We agree that this sort of evidence

was probative in Werner’s favor. Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131,

139 (Tex. 2004) (recognizing the validity of a defendant’s wish “to introduce evidence

of . . . the absence of other accidents to rebut claims that a product was dangerous”).

However, it is not conclusive. See id. at 140 (holding that the number of complaints

alone is not conclusive on the issue of unreasonable dangerousness); Gamboa v.

Centrifugal Casting Mach. Co., No. CIV.A. H-14-1273, 2015 WL 6835359, at *6 (S.D. Tex.

Nov. 6, 2015) (mem. op. & order) (“Texas case law suggests that the frequency of

similar accidents is not alone dispositive of the unreasonable dangerousness inquiry.”).

Despite Werner’s statistics concerning accident frequency, then, the record holds

more than a scintilla of evidence in DeVallee’s favor on the first factor.

B. The availability of a substitute product which would meet the same need and not be unsafe or unreasonably expensive

C. The manufacturer’s ability to eliminate the unsafe character of the product without seriously impairing its usefulness or significantly increasing its costs

Through Ryan’s testimony, DeVallee introduced the jury to three alternative

designs that would address the racking problem. The first was a ladder with a “spreader

8 plate” fixated between the legs to keep its frame more rigid. In Ryan’s view, the use of

a spreader plate would reduce racking considerably, it would be economically feasible

to equip a ladder with such a plate, and it would not impair the ladder’s functionality.

According to Ryan, “All it does is make it safer.” However, he conceded that attaching

a spreader plate would increase the ladder’s weight by about two pounds.

Second, Ryan theorized that the ladder could be made safer by integrating two

crossing chains attached to the bottom of each leg. Ryan said that such a feature would

not be difficult or expensive to incorporate into the ladder’s design. As Ryan saw it,

this feature would substantially reduce the risk of racking and would make the ladder

safer. He also described it as economically feasible and maintained that it would not

interfere with the ladder’s functionality.

Third, Ryan testified that the racking and rotation problem could be addressed

from another design perspective: altering the legs, making them rectangular as opposed

to C-shaped so that the ladder legs had less natural tendency to twist and could better

resist racking. Ryan told the jury that this type of design was readily available at the

time of DeVallee’s accident. Ryan attested that rectangular leg-tubing is economically

feasible, would not affect a consumer’s ability to use the ladder in any way, and would

substantially reduce the ladder’s risks.

According to Ryan, all three designs were technologically feasible and readily

available on the market at the time of the accident, and he had found old patents

indicating that some of the designs had long ago been integrated into ladders.

9 The record holds more than a scintilla of evidence in DeVallee’s favor on the

second and third factors.

D. The user’s anticipated awareness of the dangers inherent in the product and their avoidability because of the general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions

E. The expectations of the ordinary consumer

Ryan testified that consumers are generally not familiar with racking or the risks

inherent therein. Ryan further explained that the racking problem was a subtle one that

might come on unexpectedly; someone might be climbing the ladder, look down, and

see that all “four legs are on the ground. It all looks good to [you]. But you get up and

you’re tired, and you—what happens is the ladder comes up, and there’s only three feet

on the ground. And that makes it unstable.” Further, it was Ryan’s belief that Werner

didn’t adequately warn the public about the danger because the warnings on the ladder

did not caution users on how to climb the ladder in a way that kept it from racking.

Ryan agreed that the ladder’s warnings advised users not to “walk” the ladder, but he

maintained that the public would not know what “walking” the ladder meant.

DeVallee also addressed these factors by way of anecdotal evidence. He testified

that he was experienced with ladders, having used them all his life and sold them in

hardware stores during his younger days. But DeVallee testified said that he had never

heard of racking before his injury and that the warnings he read on the ladder did not

apprise him that racking was a risk.

10 In analyzing these factors, we refer to the opposing guideposts that were

discussed in Matak. See 462 S.W.3d at 10–11. There, a user of a mechanical lift

disconnected the lift’s support braces or “outriggers” while another man was suspended

forty feet in the air, causing the lift to topple. Id. at 6. The court held that the risks of

such a maneuver should have been readily apparent to the lift’s user. Id. at 11. The

court contrasted this obvious danger with the subtler one discussed in a prior defect

case involving a tire explosion:

On the other hand, in Uniroyal Goodrich Tire Co. v. Martinez, we held that there was a factual dispute for the jury to decide. There, Martinez was injured when a 16” tire he was attempting to mount on a 16.5” rim exploded. That such mismatches occur frequently and easily was well known in the industry—hence the warnings and recommended safety precautions. Martinez himself knew of the danger, but testified that he mistakenly believed, because the old tire was 16”, that the rim was also 16”. He might have avoided injury from an explosive mismatch between the tire and the rim if he had available (and used) a tire-mounting machine, a safety cage or an extension hose while inflating the tire. Nonetheless, because even experienced operators like Martinez could mistakenly believe they were in compliance with the warning against mounting a 16” tire on a 16.5” rim, there remained a latent risk that a person unaware he was mounting a 16” tire on a mismatched 16.5” rim would fail to appreciate the concomitantly increased danger posed by an unsecured tire. The Court concluded that whether there was a safer alternative design for the tire that would have decreased the likelihood of an explosion was a question for the jury. In the case at hand, a person on the ground can readily see that lifting the outriggers on a lift, while the platform bearing his colleague remains 40’ in the air, puts that colleague at serious risk of a potentially deadly fall. The ground-based lift-user cannot mistakenly believe that his actions are safe, as Martinez mistakenly believed based on the misapprehension that the tire and rim matched.

Id. at 10–11 (internal citations omitted).

11 Here, as in Martinez, an experienced ladder user testified that despite having read

the product’s warnings, he did not appreciate the hidden risks of the product in

question, and the jury could have rationally believed that his mistake was an easy one.

His testimony was corroborated by Ryan’s testimony concerning general consumer

awareness of the ladder’s risks. We therefore conclude that the peril in this case is more

like the subtle danger discussed in Martinez than the obvious danger at issue in Matak.

The record holds more than a scintilla of evidence in DeVallee’s favor on the fourth

and fifth factors.

F. Conclusion

Because there is more than a scintilla of evidence in DeVallee’s favor on each of

the five factors, we hold that the evidence is legally sufficient to support the jury’s

finding that the ladder was defectively designed.

III. Legal Sufficiency of the Evidence on Causation

Also within its first issue, Werner brings a narrowly drawn challenge to the legal

sufficiency of the evidence on causation. As Werner points out, both of the witnesses

who observed the accident agreed that all four legs of the ladder were on the floor when

DeVallee was climbing the ladder. Werner argues that this testimony cuts to the heart

of Ryan’s theory of causation, which rests on the assumption that racking brought one

of the ladder’s legs off the ground. Werner argues that because Ryan’s expert testimony

is contrary to these essential facts, his opinion is entitled to no weight. And because

12 Ryan’s testimony was DeVallee’s only evidence on causation, Werner reasons that

DeVallee’s case should founder.

A “producing cause” is a substantial factor in bringing about the injury and

without which the injury would not have occurred. BIC Pen Corp. v. Carter, 346 S.W.3d

533, 541 (Tex. 2011). A finding on the element of causation may be based on either

direct or circumstantial evidence, but it cannot be supported by mere conjecture, guess,

or speculation. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003) (per curiam).

When an expert opinion “is admitted in evidence without objection, it may be

considered probative evidence even if the basis of the opinion is unreliable.” City of San

Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009). Conclusory or speculative opinion

testimony is not relevant evidence because it does not make the existence of a material

fact more or less probable. Coastal Transp. Co. v. Crown Cent. Petro. Corp., 136 S.W.3d

227, 232 (Tex. 2004). Expert testimony is conclusory if the factual basis offered

provides no support for the opinion. Pollock, 284 S.W.3d at 818.

“When an expert’s opinion is based on assumed facts that vary materially from

the actual, undisputed facts, the opinion is without probative value and cannot support

a verdict or judgment.” Rogers v. Zanetti, 518 S.W.3d 394, 410 (Tex. 2017) (cleaned up)

(quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)). When the

factual basis for the expert’s opinion is in “fatal tension” with the undisputed facts, it

cannot support a competent opinion. Id. In Crye, for example, an expert testified that

a topical spray caused the plaintiff to contract frostbite on her foot, but his opinion was

13 based on the twin assumptions (1) that there was no redness on the plaintiff’s foot after

the product was applied and (2) that the plaintiff misused the product. Crye, 907 S.W.2d

at 499. The court held that the expert’s opinion was entitled to no weight because his

assumptions varied from actual facts as they were observed by the plaintiff’s husband,

who saw her foot turn red, and by the plaintiff herself, who testified that she did in fact

use the product as directed. Id.

Werner argues that, like Crye, Ryan’s expert testimony is fatally inconsistent with

the material facts as they were observed by those who saw the accident. To that end,

Werner emphasizes DeVallee’s testimony that as far as he saw, all the ladder’s legs were

on the ground when he climbed the ladder:

Q. When you were climbing the ladder and before you climbed the ladder, did you notice whether or not all four feet were on the floor?

A. Yes, all four feet were firmly on the floor.

....

Q. Okay. Were all four feet of the ladder on the floor?

A. Yes.

Q. Okay. It was not racked?

A. It could have been, and maybe I didn’t notice. I don’t know. You’re asking questions I can’t answer.

Q. You told me you confirmed that all four feet of the ladder were on the floor.

A. That’s correct.

Q. You confirmed that?

14 A. Yes.

Q. Well, what you know is it wasn’t racked to the extent that the ladder was unstable for you. True?

A. It didn’t appear to be unstable enough for me.

As Werner points out, Vance’s testimony corroborated DeVallee’s observations

concerning the placement of the ladder’s legs:

Q. Okay. Did you see whether he had all four feet on the floor?

A. All four feet were on the floor.

Q. As he climbed up the ladder, did all four feet of the ladder maintain contact with the floor?

A. Yes, sir.

Q. Did you ever see any of the four feet of the ladder move?

Q. When?

A. When he tipped over, he reached down and grabbed, and the ladder—the feet on the—this side, the ladder just tipped over. So these two feet on this side left the ground.

Q. Before he tipped over, okay, before there was a problem—

A. Uh-huh.

Q. —at any time did you see the—any of the four feet on the ladder move?

A. No, sir.

15 According to Werner, Ryan’s expert testimony was in “fatal tension” with the

facts as they were reported by those who actually saw the accident, DeVallee and Vance.

See Rogers, 518 S.W.3d at 410. But the rule described in Crye only applies when the

expert’s assumptions conflict with the “actual, undisputed facts.” 907 S.W.2d at 499.

Whether the ladder racked was the most hotly disputed issue in the case, not an

undisputed fact that may be decreed the “actual” truth—at least, not by anyone who

did not sit in the jury box. Rather, the factfinders heard all of the disputed evidence,

and we feel confident that they were in a better position to resolve this factual conflict

than those whose only exposure to the truth of the case comes through dry ink and

paper.

Moreover, Ryan did not rest his theory on untested assumptions. He based his

opinion on his independent tests of a similar ladder, the physical condition of

DeVallee’s ladder after the accident, and the circumstantial evidence. To the extent that

there is any conflict between Ryan’s theory of the accident and the fact witnesses’

testimony, Ryan made allowances for and explained those conflicts. Ryan testified that

racking could occur even if all four legs were originally placed evenly on the ground. And

in his view, there were gaps in the fact witnesses’ perception of how the accident

unfolded, and he fit his theory into those gaps. He testified that an observer who stood

twenty feet away, such as Vance, might have easily missed the racking. To wit, DeVallee

himself acknowledged that the ladder might have been racked but that he simply did

not notice it. Thus, the gaps in the witnesses’ perception of the accident left room for

16 the core of Ryan’s theory. In short, we do not have a fatal conflict between undisputed

facts and expert assumptions. We therefore cannot agree that Ryan’s opinion was mere

ipse dixit of the sort that is allowed no weight in our assessment.

Moreover, contrary to Werner’s assertions, Ryan’s testimony was not DeVallee’s

only evidence on causation. Rather, Werner’s own expert Frederick Bartnicki agreed

that the only two reasonable possibilities as to what caused the bent leg were (1) racking

or (2) that DeVallee fell onto the ladder’s leg. But DeVallee advanced other evidence

to negate the possibility that DeVallee fell onto the ladder’s leg. With that possibility

eliminated, only racking remained as a possible cause. Thus, the jury could have

rationally relied on Bartnicki’s testimony as evidence that racking caused the accident.

Of course, the overall thrust of Bartnicki’s testimony was to undercut DeVallee’s

theory of the case. But to that extent, all that Bartnicki’s testimony establishes is that

this was a “battle of competing experts,” and thus it was “the sole obligation of the jury

to determine the credibility of the witnesses and to weigh their testimony.” See Morrell

v. Finke, 184 S.W.3d 257, 282 (Tex. App.—Fort Worth 2005, pet. denied). We defer to

that resolution on appeal and hold that the evidence is legally sufficient to demonstrate

causation. With legally sufficient evidence to support the existence of a design defect

that caused DeVallee’s injury, we need not consider Werner’s argument that the

evidence is legally insufficient to support the jury’s finding that a marketing defect

caused DeVallee’s injury.

We therefore overrule Werner’s first issue.

17 IV. Legal and Factual Sufficiency of the Evidence on Damages

We next consider Werner’s second and third issues. In its second issue, Werner

challenges the legal sufficiency of the evidence to support the existence and extent of

future damages. In its third issue, Werner challenges the factual sufficiency of the same

proof, arguing that the future damages that the jury found were excessive in relation to

the state of the evidence. For the reasons that follow, we conclude that there is more

than a scintilla of evidence to support future damages. However, we agree that one

category of future damages was excessive and not supported by factually sufficient

evidence. We therefore suggest remittitur.

A. Standard of Review and General Applicable Law

We employ the same legal-sufficiency standard set forth above. The standard of

review for an excessive-damages complaint is factual sufficiency of the evidence.

Anderson v. Durant, 550 S.W.3d 605, 620 (Tex. 2018); Mar. Overseas Corp. v. Ellis, 971

S.W.2d 402, 406 (Tex. 1998). We will set aside a finding for factual insufficiency only

if, after considering and weighing all of the evidence in the record pertinent to that

finding, we determine that the credible evidence supporting the finding is so weak or

so contrary to the overwhelming weight of all the evidence that the answer should be

set aside and a new trial ordered. Campbell v. Pompa, 585 S.W.3d 561, 571–72 (Tex.

App.—Fort Worth 2019, pet. denied). When conducting a factual-sufficiency review,

the court of appeals should not substitute its judgment for that of the jury. Windrum v.

Kareh, 581 S.W.3d 761, 781–82 (Tex. 2019). Accordingly, the court of appeals may not

18 pass upon the witnesses’ credibility or substitute its judgment for that of the jury, even

if the evidence would clearly support a different result. Mar. Overseas, 971 S.W.2d at

407. An opinion reversing for factual insufficiency must detail the relevant evidence

and clearly state why the jury’s finding is so against the great weight and preponderance

as to be manifestly unjust, shock the conscience, or clearly demonstrate bias. Windrum,

581 S.W.3d at 781–82.

When someone suffers personal injuries, the damages fall within two broad

categories—economic and noneconomic damages. Golden Eagle Archery, Inc. v. Jackson,

116 S.W.3d 757, 763 (Tex. 2003). Economic damages are those that compensate an

injured party for lost wages, lost earning capacity, and medical expenses, while

noneconomic damages include compensation for pain, suffering, mental anguish,

disfigurement, and physical impairment. Id. These categories of noneconomic damages

may overlap. Id. at 770. In this case, the trial court instructed the jury not to compensate

twice for the same injury. Under Golden Eagle Archery, we presume that the jury followed

these instructions and did not award damages for one element more than once unless

the record shows otherwise. Id. at 771; Gen. Motors Corp. v. Burry, 203 S.W.3d 514, 555

(Tex. App.—Fort Worth 2006, pet. denied) (op. on reh’g).

When, as here, a factual-sufficiency challenge is made to all overlapping

categories of damages, the reviewing court should consider losses or injuries for which

the jury could have compensated the injured party under a different category. See Golden

Eagle Archery, 116 S.W.3d at 773. We review each category of damages awarded,

19 considering the evidence unique to each category, to determine whether the award for

that category is against the great weight and preponderance of the evidence. Id. “If,

after considering evidence unique to a category, the court concludes that the jury’s

failure to award larger damages for that category is against the great weight and

preponderance of the evidence, it should then consider all the overlapping evidence,

together with the evidence unique to each other category to determine if the total

amount awarded in the overlapping categories is factually sufficient.” Id.

With respect to recovery of future damages, Texas follows the reasonable-

probability rule. MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 654 (Tex.

1999). To meet the reasonable-probability test, the plaintiff must: (1) present evidence

that, in reasonable probability, he will incur damages in the future, and (2) prove the

probable reasonable amount of the future damages. Id. at 654–55. To recover damages

for future mental anguish, the plaintiff must demonstrate a reasonable probability that

compensable mental anguish will persist. Anderson, 550 S.W.3d at 619.

“In the search for a quantifiable standard to tether an analysis, courts may also

look to awards in similar cases for guidance on whether the award under review is

excessive.” Gordon v. Redelsperger, No. 02-17-00461-CV, 2019 WL 619186, at *5 (Tex.

App.—Fort Worth Feb. 14, 2019) (mem. op.), supplemented, No. 02-17-00461-CV, 2019

WL 1065916 (Tex. App.—Fort Worth Mar. 7, 2019, no pet.) (mem. op). “Even though

each case must be judged on its own unique facts, it is proper to consider other

approved awards in similar cases to determine if an award for pain and suffering is

20 excessive.” HCRA of Tex., Inc. v. Johnston, 178 S.W.3d 861, 872 (Tex. App.—Fort Worth

2005, no pet.). Inflation may explain part of the disparity between awards, especially as

to older cases. See Gordon, 2019 WL 619186, at *11.

B. Future Physical Pain and Mental Anguish

The jury awarded DeVallee $1,500,000 to compensate him for his future pain

and mental anguish.

1. The Law

Noneconomic damages, such as mental-anguish damages, cannot be determined

by mathematical precision; by their nature, they can be determined only by the exercise

of sound judgment. Bennett v. Grant, 525 S.W.3d 642, 648 (Tex. 2017); Brady v. Klentzman,

515 S.W.3d 878, 887 (Tex. 2017). “[G]iven the impossibility of any exact evaluation of

mental anguish, juries must be given a measure of discretion in finding damages, though

that discretion is limited.” Bennett, 525 S.W.3d at 648 (cleaned up). However, juries

cannot simply pick a number and put it in the blank. Id. “They must find an amount

that, in the standard language of the jury charge, would fairly and reasonably

compensate for the loss.” Id. (cleaned up). The amount awarded must be fair and

reasonable compensation, given the evidence presented. Id. “Reasonable

compensation is no easier to determine than reasonable behavior—often it may be

harder—but the law requires factfinders to determine both.” Id. (quoting Saenz v. Fid.

& Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996)). “Appellate courts must

conduct a meaningful evidentiary review of these determinations.” Id.

21 To support an award of mental anguish damages, there must be both evidence

of the existence of compensable mental anguish and evidence to justify the amount

awarded. Hancock v. Variyam, 400 S.W.3d 59, 68 (Tex. 2013). Ordinarily, mental anguish

damages cannot be awarded without either direct evidence of the nature, duration, or

severity of the plaintiff’s anguish, thus establishing a substantial disruption in the

plaintiff’s daily routine, or other evidence of a high degree of mental pain and distress

that is more than mere worry, anxiety, vexation, embarrassment, or anger. Saenz, 925

S.W.2d at 614. The supreme court recently described these rules as “strict evidentiary

requirements” that owe their existence to the court’s concern that mental anguish must

be “genuine[]:” “The existence of mental anguish is inherently difficult to verify.” SCI

Tex. Funeral Servs., Inc. v. Nelson, 540 S.W.3d 539, 544 (Tex. 2018).

However, “some types of disturbing or shocking injuries have been found

sufficient to support an inference that the injury was accompanied by mental anguish.”

Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 797 (Tex. 2006) (quoting Parkway Co. v.

Woodruff, 901 S.W.2d 434, 445 (Tex. 1995)). “Where serious bodily injury is inflicted

involving fractures, dislocations, etc., and results in protracted disability and

confinement to bed, we know that some degree of physical and mental suffering is the

necessary result.” Id. (quoting Brown v. Sullivan, 10 S.W. 288, 290 (Tex. 1888)). “Pain

and suffering may be inferred or presumed as a consequence of severe injuries.” Burry,

203 S.W.3d at 552.

22 “The presence or absence of pain, either physical or mental, is an inherently

subjective question.” Gordon, 2019 WL 619186, at *4 (quoting Burry, 203 S.W.3d at

551). “The process of awarding damages for amorphous, discretionary injuries such as

mental anguish or pain and suffering is inherently difficult because the alleged injury is

a subjective, unliquidated, nonpecuniary loss.” Id. “Pain and suffering may be inferred

or presumed as a consequence of severe injuries.” Burry, 203 S.W.3d at 552. The

amounts of damages awarded for pain and suffering are necessarily subjective, and each

case must be judged on its own facts. Gordon, 2019 WL 619186, at *4 (quoting Figueroa

v. Davis, 318 S.W.3d 53, 62 (Tex. App.—Houston [1st Dist.] 2010, no pet.)). Once the

existence of some mental anguish has been established, there is little objective way to

measure the adequacy of the amount awarded as compensation. Id.

“Mental anguish and physical pain are often combined, as here, into a single

element of damages.” Dabbs v. Calderon, No. 01-14-00598-CV, 2015 WL 4930622, at *4

(Tex. App.—Houston [1st Dist.] Aug. 18, 2015, pet. denied) (mem. op.). When there

is one combined award for mental anguish and physical pain, sufficient evidence of

either physical pain or mental anguish could support the award. Id. (quoting Figueroa,

318 S.W.3d at 63).

2. The Evidence

With those standards in mind, we proceed to review the record evidence.

DeVallee explained that he had multiple surgeries to address his injuries. He

testified that after his accident, an external fixation device was attached to the bones on

23 his arm by the time he awoke from surgery. He had another surgery to remove the

fixation device a month or so after the accident, and yet another surgery to put two pins

into his radius and ulna to keep them straight. His radius and ulna had been crushed,

so doctors had to cut them down, leaving his right arm a half-inch shorter than his left.

Doctors then performed a carpal tunnel release procedure, which according to

DeVallee caused a great deal of pain. Moreover, unfortunately, doctors did the

procedure on the wrong nerve, leading them to remove that nerve entirely. Doctors

also did another procedure where they tucked a damaged nerve into a muscle so that it

wouldn’t grow back.

By DeVallee’s account, the injuries and the resulting surgeries had left him with

persistent pain that had only gotten worse over time. He reported that at the time of

trial, the pain was radiating from his wrist area up into his forearm, bicep, and the back

of his neck. DeVallee also had occasional stabbing pains in his hand. He explained

that he can reduce pain by taking medication and that he sometimes uses a wrist splint

but did so only sparingly because it affected his work. As to mental anguish, he

explained that he had five or six appointments with a counselor sometime within the

three years prior to trial, but he had no further mental-health treatment.

DeVallee’s brother Peter Vale testified that the accident brought about a

significant change in DeVallee’s demeanor. Vale attested that he could see that

DeVallee had lost confidence in himself. Vale said that DeVallee no longer exercised

much because it caused his hand to throb, and while he tried to fight through the pain

24 and remain active, the next morning he would invariably have his arm packed in ice or

under a heating pad. According to Vale, DeVallee took many pain killers, but Vale

could see he was nonetheless often in pain.

Dr. Susan Garrison also gave testimony on DeVallee’s pain and mental anguish.

According to Dr. Garrison, DeVallee reported that his hand hurt so much he had to

put it between two pillows at night to sleep. When Dr. Garrison saw him in 2013,

DeVallee said his pain was at a two out of ten but that it would randomly spike past ten

a few times a month. As of March 2016, DeVallee reported to Dr. Garrison that his

pain was at a level of four out of ten almost all the time. By 2016, the pain had started

radiating up into his bicep.

She testified that when she spoke to him the evening before trial, he said his pain

had progressed to a constant level of five or six. DeVallee also told Dr. Garrison that

the pain had recently started radiating up into his neck. Dr. Garrison believed that

DeVallee suffered from traumatic arthritis, depression, and posttraumatic stress

disorder.

According to Dr. Garrison, doctors tried a nerve block to help DeVallee with his

pain, but the block was only temporarily successful. She explained that as of 2018,

DeVallee was not taking hydrocodone but that he would like to be taking it. Instead,

he was then taking prescription strength ibuprofen three times a day. She explained

that doctors had proposed a wrist-fusion surgery to address his persistent pain, but such

a surgery would eliminate what limited range of motion he had left.

25 3. Our Analysis

We find parallels between the facts of this case and several comparable arm- and

leg-injury cases, as well as cases that involve severe injuries sustained during traumatic

falls. A comparison between those cases and this one leaves us with the conclusion

that $1,500,000 was not excessive in relation to the evidence of DeVallee’s future pain

In Sunbridge Healthcare Corp. v. Penny, the Texarkana court held that $1,000,000

was not an excessive award for physical pain and mental anguish from injuries sustained

in a fall caused when a nursing home attendant let an elderly woman’s wheelchair roll

down a small flight of stairs—an accident that caused unspecified injuries and the

plaintiff’s death after a four-day convalescence. 160 S.W.3d 230, 252, 255 (Tex. App.—

Texarkana 2005, no pet.). In Cresthaven Nursing Residence v. Freeman, where the plaintiff

suffered from a broken leg sustained after nursing home personnel dropped her, the

plaintiff agreed to remit a pain and mental anguish award of $4.5 million down to

$1 million at the appellate court’s suggestion. 134 S.W.3d 214, 228–30 (Tex. App.—

Amarillo 2003, no pet.). In Turner v. Duggin, the Texarkana court upheld, as legally and

factually sufficient, a $350,000 award for future physical pain and mental anguish for a

26 severe dog bite that resulted in multiple surgeries and persistent pain in the plaintiff’s

leg. 532 S.W.3d 473, 482–83, 486 (Tex. App.—Texarkana 2017, no pet.). 2

Marquette Transportation Co. Gulf-Inland, LLC v. Jackson is worth special attention

for its parallel to this case. No. 01-10-01025-CV, 2012 WL 1454476, at *10 (Tex.

App.—Houston [1st Dist.] Apr. 26, 2012, no pet.) (mem. op.). There, the court upheld

awards of $1 million for past physical pain and mental anguish and $500,000 for future

physical pain and mental anguish on similar facts as we have here regarding injury,

treatment, and impact-on-life:

• A severely broken leg. Id.

• Multiple surgeries including installation of an external fixator to save the

leg and a soft tissue surgery. Id.

• Permanent pain from injury that could potentially be improved with

another surgery. Id.

• Mental anguish evidence that the plaintiff spent roughly a year highly

depressed and refused to leave his room, with extreme negative feelings

about life. Id. at *11.

From a legal-sufficiency perspective, we find more than a scintilla of evidence to

support this award of damages. Likewise, from a factual-sufficiency perspective, we

2 See also Arnold v. Louisville Ladder Grp., LLC, No. 03-1266, 2004 WL 5572033, at *3 (C.D. Ill. Feb. 9, 2004) (order) (collecting verdicts for limb injuries in ladder-fall cases).

27 cannot say that the evidence unique to this category is so weak or so contrary to the

overwhelming weight of all the evidence that the award is excessive. See Golden Eagle

Archery, 116 S.W.3d at 773. DeVallee presented a good case concerning the increasing

levels of nerve pain he had suffered over time, as well as the reasonable likelihood that

that trend of escalation would continue in the future. While his evidence on mental

anguish was less compelling, “some degree” of future mental anguish may be inferable

from the extent of DeVallee’s persistent injuries, pain, and impairment. See Fifth Club,

196 S.W.3d at 797. Furthermore, because the pain and mental anguish questions were

submitted together in broad form, we find it “difficult, if not impossible” to “ascertain[]

the amount the jury awarded for each element of damages,” such that we could deem

excessive the portion of the award that was attributable to mental anguish. See SunBridge,

160 S.W.3d at 248. Comparable cases have earned $1,000,000 awards, and to whatever

extent the award in this case may outshine its peers, the steady march of inflation may

help explain the gap. See Gordon, 2019 WL 619186, at *5, *11. Therefore, even though

the evidence “would clearly support a different result,” see Mar. Overseas, 971 S.W.2d at

407, we will not substitute our own assessment of the evidence for the jury’s. Windrum,

581 S.W.3d at 781–82. To that extent, then, we overrule Werner’s second and third

issues.

C. Future Disfigurement

The jury awarded DeVallee $100,000 for future disfigurement.

28 1. The Law

Disfigurement is “that which impairs or injures the beauty, symmetry, or

appearance of a person . . . ; that which renders unsightly, misshapen or imperfect, or

deforms in some manner.” Goldman v. Torres, 341 S.W.2d 154, 160 (Tex. 1960);

Marquette, 2012 WL 1454476, at *14; Pendergraft v. Carrillo, 273 S.W.3d 362, 367 (Tex.

App.—Eastland 2008, pet. denied); SunBridge, 160 S.W.3d at 252. “Disfigurement can

include surgical scars, even if they are in a location usually covered by clothing, or

anything else that impairs the appearance of a person, or that which renders unsightly,

misshapen or imperfect, or deforms in some manner.” Primoris Energy Servs. Corp. v.

Myers, 569 S.W.3d 745, 758–59 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (op. on

reh’g) (internal quotation omitted). “[T]here logically may be some overlap among the

physical impairment, pain, suffering, mental anguish, and disfigurement categories of

non-economic damages.” Emerson Elec. Co. v. Johnson, 601 S.W.3d 813, 846 (Tex. App.—

Fort Worth 2018, pet. granted) (mem. op.) (quoting Day v. Domin, No. 05-14-00467-

CV, 2015 WL 1743153, at *2 (Tex. App.—Dallas Apr. 16, 2015, no pet.) (mem. op.)).

According to DeVallee, the injury and the multiple resulting surgeries left his

right arm a half inch shorter than his left, damaged his nerves, and caused significant

scarring. Dr. Garrison relayed that the scarring was so extensive that it required its own

reduction surgery, and DeVallee offered photographs showing that significant

disfigurement remained even after this corrective surgery. Finally, Dr. Garrison

29 confirmed that DeVallee had difficulty using his fingers because of nerve damage and

that the feeling in his arm would not return.

3. Our Analysis

We find the evidence legally sufficient to support the award for future

disfigurement. Furthermore, we find nothing excessive about the jury’s $100,000 award

based on our assessment of the record evidence, as informed by other Texas arm- and

leg-injury opinions.

In Marquette, for example, the court upheld a $500,000 past disfigurement award

and a $500,000 future disfigurement award against a factual-sufficiency challenge, citing

the plaintiff’s broken leg, scarring, skin grafts, and defects that caused persistent

swelling. Marquette, 2012 WL 1454476, at *14–15. In Firestone Tire & Rubber Co. v. Battle,

the court upheld as nonexcessive a $110,000 award (in 1988 dollars no less) for past

and future disfigurement for a severely marred and broken hand, where multiple

surgeries were required following a products-liability accident. 745 S.W.2d 909, 917

(Tex. App.—Houston [1st Dist.] 1988, writ denied). In Diamond Offshore Services, Ltd. v.

Williams, the court affirmed an award of $325,000 for future disfigurement where

plaintiff suffered from “foot drop” due to nerve damage, could not extend his toes,

dragged his foot when he walked, and suffered from a noticeable limp. 510 S.W.3d 57,

76–77 (Tex. App.—Houston [1st Dist.] 2015), rev’d on other grounds, 542 S.W.3d 539 (Tex.

2018).

30 In light of the substantial evidence unique to this category and the significant

awards in other cases based on analogous facts, we find nothing excessive about the

jury’s award for future disfigurement. See Golden Eagle Archery, 116 S.W.3d at 773. To

that extent, we overrule Werner’s second and third issues.

D. Future Physical Impairment

The jury awarded DeVallee $1,500,000 for future physical impairment.

The charge in this case did not define physical impairment. Without a definition

of physical impairment in the charge, appellate courts look to the commonly

understood meaning of the term physical impairment. Gordon, 2019 WL 619186, at *13.

Thus, in Gordon, we defined the common meaning of “physical” as “of or relating to

the body,” and the definition of “impair” as “to diminish in quantity, value, excellence,

or strength.” Id. So defined, physical impairment encompasses the loss of enjoyment

of life or the loss of the injured party’s former lifestyle. Burry, 203 S.W.3d at 554. “To

recover damages for physical impairment, the plaintiff must show that (1) he or she

incurred injuries that are distinct from, or extend beyond, injuries compensable as pain

and suffering, loss of earning capacity, or other damage elements and (2) these distinct

injuries have had a ‘substantial’ effect.” Id. at 555. “If other elements such as pain,

suffering, mental anguish, and disfigurement are submitted, there is little left for which

to compensate under the category of physical impairment other than loss of enjoyment

of life.” Id. “Texas courts are wary of recoveries for physical impairment because of

31 the vague line of demarcation between damages for physical impairment and other

categories of nonpecuniary damages.” Gordon, 2019 WL 619186, at *13.

Evidence of impairment may include, for example, whether

(1) impediments to the plaintiff’s non-work-related activities are obvious from the injury itself; or (2) the plaintiff produces some evidence of specific non-work-related tasks or activities he can no longer perform. Examples of injuries or limitations that have been held to be legally sufficient evidence of physical impairment include difficulty eating and communicating with others; continuing inability to sleep due to sharp pains, plus inability to run, bicycle, participate in triathlons, and play with children; past inability to walk and future difficulties in running, standing, and climbing; inability to ascend or descend stairs or kneel and difficulty in standing for long periods of time; loss of seventy-five percent of strength in left arm, which subsequently contributed to plaintiff’s falling, breaking her leg, and being confined to a wheelchair; and difficulties performing yard work, car maintenance, and playing racquetball.

Id. at *14 (quoting Patlyek v. Brittain, 149 S.W.3d 781, 787 (Tex. App.—Austin 2004, pet.

denied) (op. on reh’g)).

DeVallee testified that as a right-hand dominant person, the injury impaired his

ability to care for himself, affecting everything from brushing his teeth (which he was

forced to do left-handed with an electric toothbrush) to shopping at the grocery store

(where he had difficulty picking up bags and often dropped things). He explained that

every time he lifted something, there was a consequence in terms of pain, which made

him think twice before acting.

DeVallee said that when the accident occurred, he was active and in the best

shape of his life. Following the accident, he tried to work out at the gym as before, but

32 he could not. The injury also impacted his jogging; the longer he jogged, the more his

hand throbbed. Swimming did not work as exercise either. However, he conceded on

cross-examination that he had run in nineteen organized races since the accident.

By Vale’s account, DeVallee was very active, independent, and athletic before

the accident. DeVallee was an active mountain biker, ran frequently, and spent a good

amount of time at the gym. But many of those activities stopped after the accident.

Vale said the accident also fundamentally changed how DeVallee goes about his daily

activities: “[H]aving spent a lifetime being, you know, so physical, he had a lot of

confidence in his own abilities. And he would be more likely to go do exciting,

adventurous things, where now I find he’s much more reserved.” Vale further

confirmed that, due to DeVallee’s righthandedness, following the accident there was “a

lot he couldn’t do. And he was heavily medicated, so we just tried to help out as much

as we could with everything.” Vale often had to do things for DeVallee that he

ordinarily would have done for himself prior to the accident. By Vale’s account, he

could see DeVallee’s loss of confidence. DeVallee had a girlfriend at the time of

accident, but he had not had any relationships since.

On cross-examination, Vale conceded that DeVallee has been successful in his

career since the accident and that DeVallee still ran long-distance races. Vale also

acknowledged that DeVallee had lived alone for years at the time of trial, that he does

housework by himself, and that he was self-sufficient in bathing, dressing, and cooking

his own meals.

33 Dr. Garrison also offered insights into DeVallee’s impairment. As she described

it, DeVallee had a greatly decreased range of motion, and he could not make a fist with

his dominant hand. She explained that doctors had proposed a wrist-fusion surgery to

address his persistent pain, but such a surgery would eliminate what limited range of

motion was left. Ultimately, she rated his right-arm impairment at 13% or 14%, whereas

his whole-body impairment rating was 8%. The pain and lack of fine motor skills stood

in the way of things like getting dressed and his previous hobbies of gardening and

bowling. However, she conceded that DeVallee was still a frequent runner of races and

had done one half-marathon since the accident.

There is more than a scintilla of evidence to support the damages for future

impairment. But several factually equivalent arm- and leg-injury cases with dramatically

lower awards suggest that the figure of $1,500,000 is excessive in relation to the record

evidence.

In one case, the court found the evidence sufficient to support a $20,000 future

impairment award for a broken wrist and ankle, which came with lost strength,

persistent pain, “limited his ability to lift things,” limited ability to run or walk at pace,

arthritis that would impact his daily activities, and the potential need for wrist-fusion

surgery. Barnhart v. Morales, 459 S.W.3d 733, 746–47 (Tex. App.—Houston [14th Dist.]

2015, no pet.).

34 In another case, the court held the evidence sufficient to support a $1,000,000

future impairment award based on a severe injury that crippled both hands, based on

the following impairment evidence:

Preston is unable to do many everyday tasks like open a water bottle or button his shirt. His ability to write is very limited because of the pain writing causes. He can use a computer by pecking with a middle finger and a thumb. Although Preston showed incredible determination and character by working hard to make the varsity football team his senior year in high school, he still could not be a receiver or play baseball. He cannot throw or catch a baseball. His ability to do many things he once enjoyed is limited.

Rentech Steel, L.L.C. v. Teel, 299 S.W.3d 155, 165–66 (Tex. App.—Eastland 2009, pet.

dism’d).

In still another case, the court held the evidence sufficient to support awards of

$500,000 for past impairment and $500,000 for future impairment in connection with

a severely broken leg, based on the following evidence: “[B]efore his accident he was

athletic and liked to play basketball, softball, and volleyball and to rollerskate with his

brothers and his sons. He also testified that he had been living with his girlfriend and

had been planning to ask her to marry him, but he had to postpone those plans

indefinitely to move in with his parents because he was no longer able to care for

himself following the accident.” Marquette, 2012 WL 1454476, at *13. Also there were

“gait deficiencies” and “rotational abnormalities” that resulted in “a permanent limp”

and a loss of sensation in the injured party’s foot. Id. The injury meant that “he would

never be able to run again” and “he’s not going to be equal and as agile as he was”; a

35 doctor also testified that the injured party Jackson “should probably put a ‘one-hour

limit’ on the amount of walking and standing that he does each day. As a result, both

Jackson and his mother testified that Jackson was unable to do many common

household tasks, such as cooking and cleaning.” Id.

And perhaps the most salient comparator is Battle, where a man in his mid-40’s

sustained fractures in his right hand and crushed bones in his left wrist. Battle, 745

S.W.2d at 917. The injuries were so severe that he was left with drastic limitations of

the motion in his hand and wrist, “virtually no grip strength,” and practically no use of

his hand at all. Id. To compensate him for the complete loss of use and enjoyment of

his appendages, the jury awarded $142,500 for past and future physical impairment. Id.

Based on this state’s laws and this case’s facts, we must conclude that the award

of $1,500,000 for future impairment was grossly out of step with what the evidence

justified, as measured against the consensus of comparable cases. Much of DeVallee’s

case centered on his pain and its impact on his life, and to the extent that he experienced

impairment, it appeared to be hardly “distinct from, or extend beyond, injuries

compensable as pain and suffering.” See Burry, 203 S.W.3d at 555. When filtering for

pain-related evidence, DeVallee was left with only modest evidence unique to future

impairment. See Golden Eagle, 116 S.W.3d at 773. That proof cannot compete with the

contrary evidence that DeVallee was only 13% disabled in one arm, such that he

remained able to work, was self-sufficient enough to live alone, and could regularly run

races. Those facts beg for comparison with a case like Battle, wherein it appears that

36 both the plaintiff’s appendages were nearly completely disabled from a similar set of

fractures, and yet he received an award for past and future impairment that was ten

times lower than DeVallee’s award for future impairment alone. While DeVallee lost

the enjoyment of certain hobbies, there is no view of the record that could warrant such

steep relief. Therefore, based on the evidence unique to the category of future physical

impairment, we must conclude that the award for this category is against the great

weight and preponderance of the evidence. See id.

E. All Overlapping Noneconomic Damages

Having determined that the evidence unique to impairment is insufficient to

support that award, our next task, as we understand it, is to consider all the evidence of

noneconomic damages together in order to determine whether the total amount

awarded in all the overlapping noneconomic categories is factually sufficient. Id.; Burry,

203 S.W.3d at 555. We “take[] into account all the evidence regarding damages in

categories that overlap, but [we] do[] not credit that evidence more than once in

evaluating the amount awarded by the jury.” Golden Eagle Archery, 116 S.W.3d at 773.

For all the overlapping categories of future noneconomic damages, the jury

awarded DeVallee a total of $3,100,000 ($1,500,000 for future pain and mental anguish,

$100,000 for future disfigurement, and $1,500,000 for future physical impairment).

Above, we have laid out all of the evidence pertaining to that sum, and we need not

recapitulate it again here. It is enough to say that after reviewing the totality of that

evidence, we remain convinced that the whole is just as unwarranted as its faulty part

37 (impairment); DeVallee’s evidence on future disfigurement and future pain and mental

anguish was not so powerful that it could make up for the patent deficiencies in his

future impairment evidence.

We therefore hold that the evidence is factually insufficient, and we suggest a

remittitur of $1,000,000, owing to the inadequacy of the evidence with regard to future

impairment. To that extent, we overrule Werner’s second issue and sustain its third.

F. Future Medical Care

Next, Werner attacks the factual sufficiency of the evidence to support the award

of $460,377.15 for DeVallee’s future medical care. But Werner’s approach to

challenging this award is a bit different from its other challenges. Rather than calling

the award excessive in general, Werner maintains that certain types of expenses should

be categorically unavailable because they are not “medical” in essence, such as the

amounts that DeVallee requested for his home and lawn maintenance expenses,

occupational and recreational therapy, gym membership, and roadside assistance.

As Werner’s sole support for its position that these sums are not medical and

thus not compensable, Werner cites SeaRiver Maritime, Inc. v. Pike, No. 13-05-0033-CV,

2006 WL 1553264, at *5–6 (Tex. App.—Corpus Christi–Edinburg June 8, 2006, pet.

denied) (mem. op.). The SeaRiver court suggested remittitur for a future medical award,

reasoning, “Cutting grass and handyman services are not ordinary and necessary

medical expenses. No medical testimony supported the necessity for this, nor was it

38 prescribed. Vocational therapy and rehabilitation are not medical expenses though they

were part of Dr. Voogt’s testimony.” Id.

However, SeaRiver offered no authority for this holding, and our research has

revealed a wealth of Texas3 and federal4 cases that have either issued or upheld awards

3 See, e.g., Brazos Contractors Dev., Inc. v. Jefferson, 596 S.W.3d 291, 312 (Tex. App.— Houston [14th Dist.] 2019, pet. filed) (upholding $500,000 future medical award based in part on evidence about plaintiff’s need for assistance with “housekeeping[] and activities of daily living”); Integrated of Amarillo, Inc. v. Kirkland, 424 S.W.3d 131, 139 (Tex. App.—Amarillo 2014, no pet.) (upholding award of $13,000 for home renovations as part of medical expenses); Rentech Steel, 299 S.W.3d at 164 (upholding an award of nearly $3 million that included amounts for home maintenance, a bookkeeper, a housekeeper, and a home health aide); Baptist Mem’l Hosp. Sys. v. Smith, 822 S.W.2d 67, 79 (Tex. App.— San Antonio 1991, writ denied) (upholding $1.3 million future medical award for “medical, nursing, and custodial expenses”), abrogated in part on other grounds by Sampson v. Baptist Mem’l Hosp. Sys., 940 S.W.2d 128 (Tex. App.—San Antonio 1996), rev’d, 969 S.W.2d 945 (Tex. 1998). 4 See, e.g., Low v. United States, 795 F.2d 466, 471–72 (5th Cir. 1986) (upholding $1,275,000 medical award, including amounts for physical and occupational therapy); Early v. United States, 474 F.2d 756, 759 (9th Cir. 1973) (upholding joint award of $55,000 for future medical, housekeeping, and medication expenses); In re Otero Cty. Hosp. Ass’n, Inc., No. 11-11-13686 JL, 2018 WL 893789, at *14 (Bankr. D.N.M. Jan. 30, 2018) (mem. op.) (issuing $215,000 award for future medical needs that encompassed “rehabilitation, including physical therapy sessions and a gym membership; and . . . professional maid/caregiver service three times per week”); Hendrickson v. United States, No. 11CV1746-LAB NLS, 2014 WL 7915313, at *5 (S.D. Cal. June 20, 2014) (awarding $1,846,780 for in-home medical assistance and housekeeping assistance in the future); McCuller v. Nautical Ventures, LLC, No. CIV.A. 05-1195, 2012 WL 4416979, at *3 (E.D. La. Sept. 25, 2012) (findings & conclusions) (“Accordingly, the Court finds that Mr. McCuller’s future medical costs include a one-time gym membership initial fee and a monthly fee thereafter, for life.”); see also Wareing ex rel. Wareing v. United States, 943 F. Supp. 1504, 1538 (S.D. Fla. 1996) (quoting Muenstermann v. United States, 787 F. Supp. 499, 516 (D. Md. 1992)) (approving language stating that future needs may include seven categories of damages, such as “attendant care” and “transportation”; “None of these categories of rehabilitative services and future support care expenses have been

39 under the heading of future medical damages for services that might not be considered

strictly medical. We therefore decline to follow SeaRiver.

Werner also attacks the jury’s award of future medical expenses by arguing

against the “life care plan” that Dr. Garrison and another witness developed for

DeVallee. Pursuant to the plan, Dr. Garrison recommended certain forms of care to

address problems stemming from the accident, such as wrist-fusion surgery to treat his

pain and home assistance to perform the household chores that DeVallee could not do

on his own. Another witness, Ginny Stegent, compiled price quotes for what that care

would cost.

Werner argues that the care plan was based on out-of-date projections about

DeVallee’s needs. As Werner points out, DeVallee no longer needed one of the forms

of recommended future care—dental surgery—given that the underlying problem had

already been corrected. Werner also argues that other forms of care, such as visits to a

pain management specialist, were not necessary because DeVallee had not yet taken

advantage of those services by the time of trial. Werner argues that Dr. Garrison’s out-

of-date projections concerning DeVallee’s future needs were therefore insufficient to

support the award of future medical expenses.

thought to be ‘novel.’”); Housekeeping and maid services, 2 Stein on Personal Injury Damages Treatise § 7:19 (3d ed.) (collecting cases that approved medical awards for housekeeping).

40 In Burry, this court addressed a roughly analogous argument, wherein General

Motors contended that the appellees’ life care plan was speculative because it was based

on “out-of-date” data. 203 S.W.3d at 553–54. Namely, the injured party offered a care

plan that included an allotment for lost income due to her injuries. Id. General Motors

protested that this projection was based on an out-of-date employment history because

the evidence at trial showed that the injured party had not worked in ten years. Id. We

held that the lost-earnings award was nonetheless sufficient because the expert who

created the plan testified that he had also taken account of present realities in making

his projections: he adjusted his projections downward because the injured party had

“been out of the labor market for a number of years and wouldn’t have started at as

high a salary as what she had years ago.” Id. at 554 (cleaned up). “Thus, Dr. Hansen

not only took into account Stacey’s past work history and skills, he also expressly

adjusted his determination of her earning capacity based on the fact that she had been

out of the workforce for some time.” Id.

Similarly, here, DeVallee’s witnesses testified that they adjusted his care plan

downward to account for the present realities of DeVallee’s case, such as by cutting out

the recommended amount related to dental care that was no longer appropriate. And

to the extent that the jury’s award compensates DeVallee for types of care that he had

not yet availed himself of at the time of trial, we do not believe that his lack of availment

by itself shows that these types of care were not appropriate. Rather, in its role as the

factfinder, the jury could have rationally believed Dr. Garrison’s testimony that these

41 types of care were reasonably required in the future, but that DeVallee simply had not

had the resources to undergo them. We therefore hold that the evidence is legally and

factually sufficient to support the jury’s award for future medical care. To that extent,

we overrule Werner’s second and third issues.

V. Exclusion of Evidence

In its fourth issue, Werner protests the exclusion of deposition testimony from

a physician who treated DeVallee, Dr. Michael V. Doyle. According to Werner, this

testimony would have rebutted the notion that any of the treatment discussed in

DeVallee’s care plan was reasonably necessary. As Werner summarizes his testimony,

“Dr. Doyle could not say with any degree of medical certainty that DeVallee would

need any of the items contained in the life care plan.” Werner argues that the trial court

erred in excluding this testimony.

At trial, DeVallee objected that Dr. Doyle’s testimony was misleading, and the

trial court excluded the evidence. On appeal, Werner contends that the evidence’s

probative value far exceeds any potential to mislead the jury. We disagree.

We review a trial court’s exclusion of evidence for an abuse of discretion. JLG

Trucking, LLC v. Garza, 466 S.W.3d 157, 161 (Tex. 2015). The trial court has broad

discretion to determine admissibility. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499

(Tex. 2001). A trial court does not abuse its discretion merely because the appellate

court would have ruled differently in the same circumstance. McGibney v. Rauhauser, 549

S.W.3d 816, 820 (Tex. App.—Fort Worth 2018, pet. denied). Instead, the appropriate

42 inquiry is whether the court acted without reference to any guiding rules or principles,

that is, whether the court’s act was arbitrary or unreasonable. Id.

Pursuant to Rule 403, relevant evidence may be excluded if its probative value is

substantially outweighed by the danger of misleading the jury. JBS Carriers, Inc. v.

Washington, 564 S.W.3d 830, 836 (Tex. 2018) (quoting Tex. R. Evid. 403). Misleading

evidence “has variously been defined as evidence the jury cannot properly evaluate, that

is hard to understand or apply, that is likely to be misunderstood, or that the jury will

likely give undue weight.” In re Commitment of Woods, No. 02-19-00155-CV, 2020 WL

3969958, at *12 (Tex. App.—Fort Worth June 11, 2020, pet. denied) (mem. op.) (citing

Charles Alan Wright & Arthur R. Miller, 22A Federal Practice and Procedure Evidence

§ 5217 n.17 (2d ed. 2020)). “Evidence may qualify as misleading if it has the deceptive

veneer of truth—such as the statement taken out of context, the trumped-up statistic,

or the suggestion of a defense that has no legal validity.” Id. (footnotes omitted).

The trial court could have rationally concluded that in Werner’s hands, this

evidence had a significant potential to deceive that substantially outweighed its

probative value. Werner touted Dr. Doyle’s testimony as a rebuttal to Dr. Garrison’s

opinion that the care she recommended was reasonably necessary—as though

Dr. Doyle had studied the issue, made his own assessment, and disagreed with

Dr. Garrison’s opinion on what care DeVallee needed. But Dr. Doyle’s deposition

testimony reveals that he made no such studied assessment and had almost no opinions

on the matter. Most of his answers were of the indefinite variety—coulds, maybes, or

43 I don’t knows. Dr. Doyle gave the latter answer most frequently of all, replying “I don’t

know” to questions about whether DeVallee would need pain management treatment,

occupational therapy, antidepressant medications, housekeeping, lawn care, and home

maintenance. He gave no firm answers whatsoever concerning the care that DeVallee

would actually need. If Werner’s goal was to use Dr. Doyle’s noncommittal responses

as a means to rebut Dr. Garrison’s testimony about the care that DeVallee needed, it

would have been a misleading rebuttal indeed. We therefore conclude that the trial

court did not abuse its broad discretion when it excluded this evidence. See Helena

Chem., 47 S.W.3d at 499. We overrule Werner’s fourth and final issue.

VI. Conclusion

The evidence is factually insufficient to support the jury’s award of $1,500,000

for future physical impairment. We suggest a remittitur of $1,000,000 on this award.

If DeVallee files this remittitur with the trial court clerk within fifteen days of our

judgment and notifies this court of such, we will reform the amount of damages and

affirm the judgment as modified. See Tex. R. App. P. 43.2(b), 46.3. If DeVallee does

not timely file the remittitur, we will reverse the trial court’s judgment and remand for

a new trial on liability and damages. See Tex. R. App. P. 44.1(b); Rancho La Valencia, Inc.

v. Aquaplex, Inc., 383 S.W.3d 150, 151–52 (Tex. 2012) (per curiam).

/s/ Wade Birdwell Wade Birdwell Justice

Delivered: March 25, 2021