Nguyen, Tracy v. Myers, Rodolfo J.
442 S.W.3d 434
Tex. App.2013Background
- Myers sued Nguyen for negligence after a rear-end collision (Oct 7, 2009) and sought $34,183.28 in medical expenses with additional damages for past pain and impairment.
- Nguyen and Myers moved in limine; Nguyen sought to preclude Myers from mentioning liability insurance; Myers agreed, and the court granted the agreement.
- During opening, Myers’s counsel referenced a doctor hired to write a report; testimony featured Dr. Timberlake, hired by Nguyen’s counsel, who criticized treatment as unnecessary.
- Starry testified that Timberlake is hired by insurance companies and paid to write unfavorable reports; Timberlake acknowledged reviewing records for defendants.
- The jury awarded $34,183.28 for past medical expenses and $8,000 for past pain and suffering; Nguyen moved for mistrial/new trial based on evidentiary issues.
- The appellate court affirmed, concluding any error was harmless and that incurable jury argument preservation issues foreclosed relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Starry's insurance comment was harmful error | Nguyen argues insurance mention tainted the verdict. | Nguyen contends the trial court erred in overruling objection to insurance reference. | Harmless error; verdict not dependent on insurance reference. |
| Whether Starry's testimony about Timberlake was an incurable statement | Timberlake credibility challenged; testimony attacked opposing expert. | Statement not incurable; not of the rare, inflammatory type. | Not incurable; no new trial warranted. |
| Whether Myers's counsel’s arguments about Timberlake and insurance constituted incurable jury argument | Counsel improperly defended/attacked Timberlake and referenced paid testimony to inflate damages. | Arguments were within closing and not preserved by objection/new trial denial. | Not preserved; no incurable jury argument requiring reversal. |
Key Cases Cited
- U-Haul International, Inc. v. Waldrip, 380 S.W.3d 118 (Tex. 2012) (standard for reviewing evidentiary error harm)
- Nissan Motor Co., Ltd. v. Armstrong, 145 S.W.3d 131 (Tex. 2004) (harmful error requires showing error affected verdict)
- Babcock v. Northwestern Memorial Hosp., 767 S.W.2d 705 (Tex. 1989) (mere mention of insurance not automatically reversible)
- Phillips v. Bramlett, 288 S.W.3d 876 (Tex. 2009) (preservation and standards for incurable jury argument)
- PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699 (Tex. App.—Dallas 2011) (arguments based on evidence not in record do not rise to incurable level)
- Living Centers of Texas, Inc. v. Penlaver, 256 S.W.3d 678 (Tex. 2008) (incurable statements rare and highly inflammatory)
- Taber v. Roush, 316 S.W.3d 139 (Tex. App.—Houston [14th Dist.] 2010) (incurable statements and assessing their impact on verdicts)
- Reese (Standard Fire Ins. Co. v.), 584 S.W.2d 835 (Tex. 1979) (framework for evaluating incurable harm and improper arguments)
- Haywood v. Employers Insurance, 153 Tex. 242 (Tex. 1954) (limits on improper commentary about witnesses)