*1 specifically request band did not ruling
consolidation the conclusion of the hear-
ings. When the trial court dismissed the Suit,
Trust no longer consolidation was
issue. In the ruling absence a court order consolidation, nothing presented for our
review. standing issue,
On the the essential undisputed. To be considered parties’ pleadings,
with the critical facts testamentary
were the terms of the trust
the uncontroverted failure of the Trustee prescribed
make pay semiannual income twenty-first
ments to Wife since birth
day. The issue of standing Husband’s
bring question the lawsuit awas law
the court. The specifically trial court recited legal
his conclusions in his Order. We thus
hold no harm resulted to the Husband
by its findings failure to file fact and point
conclusions of law. The first error point
overruled. The second is likewise over
ruled, because, stated, ruling there was no
by the trial court on the issue of consolida
tion for us to review. of the trial court is affirmed.
HOLCOMB, J., participating. PETERSON, Appellant,
Sandra Villegas
Juan REYNA and Howard Sha
drock, Individually Shadrock d/b/a
Trucking Company, Appellees.
No. 04-94-00482-CV. Texas, of Appeals
Court
San Antonio.
Aug. 1995.
Rehearing Sept. Overruled *2 Salazar, Sciano, Tins- Ronald J.
Daniel J.T. Antonio, Houser, Inc., appel- man & San lant. Martin, Heeker, J. T. Terrence
Edward P.C., Antonio, Strolle, W. Wen- Martin & San Forinash, Hall, Fulbright & dell A. Renee Jaworski, Antonio, appellees. San HARDBERGER, DUNCAN Before BUTTS, JJ.
OPINION BUTTS, Justice.1 injury After a case. personal This is verdict, judgment was entered jury trial and Peterson, Plain- appellant, Sandra favor trial denied Peterson’s tiff court below. trial. affirm. motion for new We error, argues appellant point of In her first damages for of “zero” that the award 74.003(b) 1988). (Vernon § Assigned Justice of the to this case the Chief Ann. Code pursuant Supreme to Tex.Gov’t Court Texas past physical 11, 1991, anguish, July mental future On was examined care, physical pain Earle, Stephen orthopedic surgeon. anguish mental is so The doctor testified that MRIs showed three as to bulges neck, minor of the disk in her but manifestly unjust. point, ap- her second *3 impact did not on nerves. He said pellant maintains the trial court abused its disk moderate herniation at L5-L6 was applied wrong discretion when it stan- diagnosed appellant’s shown. Dr. con- Earle considering of in overruling dard review segmental instability; dition as however appellant’s motion for new trial. x-rays of earlier Dr. Viola not this. did show Dr. x-rays Earle’s flexion and indi- extension The cause of action from arose an intersec- him appellant developed cated to that 23, 1990, tional on collision October between retrolisthesis, a condition not shown exist to Peterson’s gravel automobile and a truck x-rayed when Dr. Viola the area. Dr. Earle Villegas Reyna driven Juan and owned up surgery appellant, recommended to but to appellee, Howard Shadrock Shadroek d/b/a trial, operation. time she declined Trucking Company. jury apportioned negligence Reyna, at 50% for 20% Sha- begin physical therapy She did at his ad- drock, and 30% for Peterson. vice and attended a few sessions. There was collision, It was appel- shown that after appellant therapists told the she lant lifted son her from his car seat and “feeling good” was fairly “feeling fine.” displayed sign injuries no of back or neck to Because she required failed attend the police scene; witnesses and officers at the sessions, they discharged appellant from the complained she of minor cuts on her fore- program. Appellant stated she could no exclaimed, head. was There evidence she longer borrow the car from a friend to drive God, Appellant “Thank no one was hurt.” sessions; addition, driving in after declined the offer to'call the EMS. home did think therapy she not was days
Three later appellant helping visited Dr. her. Richter, complaining general physi- James Eighteen months after the accident Dr. cal sign discomfort. The doctor found no performed Dennis independent Gutzman spinal a injury. bruising He did see Earle, medical examination. In contrast to knee, right leg, left occipital and in the area. viewing he testified his of MRIs appel- diagnosis His strain muscle which re- lant’s neck did not show retrolisthesis. He quired orthopedic referral, pre- and he agreed findings Dr. regarding with Earle’s a Tylenol. scribed ap- The doctor instructed bulge disk moderate her neck and a mod- pellant if experi- to return she continued to erate herniation at He L5-S1. concluded pain. Appellant ence not did see Dr. Richter appellant problems could with treat the neck 15, 1992, again April until and did not com- anti-inflammatory such medication as Advil plain at pain. time of back or neck Tylenol or program. home a exercise provider testify next health care bulging Both doctors indicated the neck disk Viola, Dr. chiropractor, Frank who congenital. could have been Dr. Earle would appellant examined after about month neck, surgery recommend for the performed straight leg accident. He rais- Gutzman would not. ing any test to discover disease of an inter- disk, and Regarding appellant’s problems, vertebral he found none. Dr. Viola back x-rayed appellant’s spine cervical and lumbar Gutzman’s indicated natural for flexion and aging process might extension views of the neck. possibly account for the condition, temporary He discovered a showing loss of MRI a moderate herniation. How- lordosis, ever, forward curvature of lumbar temporary he that the lordosis spine. Further, He found no herniated disks and loss from resulted the accident. he diagnosed appellant general problems experiencing believed some lumbar re- sprain appellant and strain. He advised sulted from the accident. Dr. Gutzman him, continue surgery treatment with but she did not would on appellant’s not recommend back, return. although possi- out he did rule QUESTION NO. 3 Earle recommended sur- ble need later. Dr. gery the cost on the back and estimated cash, money, paid if now in sum What $60,000 along about fairly reasonably compensate would There had injuries, medical care costs. attendant for her SANDRA PETERSON operation appellant’s back at the from the collision any, been no that resulted question? for the time nor was one scheduled damage listed the elements future. Consider each ele- and none other. Consider below saw The evidence shows include separately. Do not ment and one-half nine times three doctors element. Do for one element During years date collision. any amount dam- include interest on *4 (Richter month saw two the first she doctors you ages find. Viola); however, and and it was seven one- amounts, any, if in Do not reduce half after that when she saw another months negligence, if your because of the answers (Earle). injuries The noted that doctor any, of SANDRA PETERSON. comprise the of Peter- medical exam bases cents for dam- Answer in dollars and Appellant Dr. Earle six son’s claims. saw any, that sustained in the ages, were times until the time of trial. past probability will be and reasonable separately. in the future sustained experienc- Although appellant testified anguish and mental -0- a. Physical pain accident, ing pain of her since the time -0- b. Physical impairment 8,909.00 c. Medical care pain he her in brother said did not notice earning -0- Loss of capacity d. until her son Christmas 1992 caused when In Past $8,909.00 Answer: arms, jumped her fell off chair into she anguish -0- and mental a. Physical pain to her knees. said that the acci- He before -0- b. Physical impairment appellant helped dent him move a 250 had -0- c. Medical care earning friend, of -0- pound Royal, d. Loss capacity desk. close LaNell Future -0- $ that never admitted to her stated Peterson the sum The record reflects pain, although plain she was it was her exactly proved for damages is found as the house curtailed. activities around were past Appellant costs. asserts medical care appellant noticed that Another witness great findings against zero body just her turned her instead of head weight preponderance evidence. talking looking They all when or at her. 629, v. Motor 715 S.W.2d See Pool Ford agreed appellant was not as active as she Estate, (Tex.1986); King’s 244 In re 634-36 prescrip- no once had been. There been (Tex.1951). 660, supreme The 661-62 S.W.2d pain pre- tion for medication until Earle review as fol out the standard of court set Appellant always it. said she did scribed lows: take the medication because it made her reviewing jury verdict to deter- When dizzy sleepy. sufficiency of the evi- mine the factual weeks, jury trial continued for two dence, appeals must consider the court of witnesses, presented evidence, sixteen weigh and Peterson and should set all only contrary to if it is so including the doctors the verdict referenced aside overwhelming weight the evidence providers. pointed It health care out unjust. wrong clearly as to be jury argument could have ob- (Tex.1986). Bain, signs 175, 176 or served for v. Cain dis- during discomfort and she had standard Pursuant to the mandated none; played also stressed could weigh care, reviewing all the court will did not have to move observe she whether evidence determine body just when she weight and not her head great whole so verdict is to mani- following broad form as talked to another. The unjust. jury: festly damages question was answered 476
Appellant emphasizes it was the in Earle lifting recommended no of over 40 tention only to award pounds. amount past expenses, shown for medical Appellant emphasize particular does not damages failed to award which were symptoms signs evidence of the or of mental proved past pain anguish for and mental anguish shown result from the tort. See damages. future To support argu Sales, e.g., Gray, Town East Ford Inc. v. 730 ment, appellant margin focuses (Tex.App. S.W.2d 803 —Dallas past notation beside medical ex $8909 writ). Further, treating physi two of the However, penses. supreme court has lengthy cians did not see need regard ruled broad form procedure. Immediately after the question: accident, Tylenol Richter recommended margin We cannot consider the notations that, Shortly practicing strain. after separate damage purposes awards for chiropractor physical therapy recommended evidentiary review. See First National to be administered his Both clinic. Zimmerman, Bank in Dallas opinions x-rays these doctors based their (Tex.1969); see also Wal-Mart shortly taken after the accident. Stores, Alexander, Inc. v. (Tex.1993). orthopedic surgeon ap- The Court stated in who examined Zim- *5 jury’s pellant
merman the “handwritten several the nota- months after collision was jury’s verdict; tion was not merely prescribe pain the it the first one to a killer medi- jury’s processes reflected the mental in treating physi- cation. He was also the arriving jury’s at appellant their verdict.... The cian surgery, to recommend which reaching particular reasons for up verdict refused even to the time of trial. He irrelevant, are at least in the absence of testimony with Dr. Gutzman in his some overt act of misconduct.” person pain that it would be for a in unusual to go be able for seven and one-half Oldham, 352, Thomas v. 359-60 independent (Tex.1995). months without treatment. The present the case no evidence agree medical examiner did not that future presented has been there some surgery required, believing that certain overt of jury. act misconduct the This tests, a discogram, such as must be speculate court first done cannot as to the rea- necessity before the could be processes awarding sons or mental in dam- established. ages. disagreement There was also physician findings by with other failure to find a fact means orthopedic surgeon. jury was not preponder convinced ance of reviewing The evidence. court processes by mental “The which a may simply not reverse because it concludes jury damages determines the amount of is preponderates the evidence toward an affir ordinarily cognizable by appellate not an may only mative answer. We reverse when precise court and where the furnishes no law supports of the evidence an legal recovery damages, measure of Kornell, Pilkington affirmative answer. v. largely to be is amount awarded discre 223, 822 (Tex.App. S.W.2d 225-26 —Dallas Garcia, tionary jury.” Terry with the v. 800 denied). 1991, writ 854, (Tex.App. S.W.2d 859 Antonio —San Appellant report any not did denied). 1990, writ intervening indepen traumatic event to the dent medical examiner or to Dr. Earle. trier of has The fact several alterna However, there was evidence at trial that she tives when conflict available confronted with ex-husband, subsequent ing and her may to the acci evidence. It believe one witness dent, engaged Kuhlmann, “pushing in some disbelieve others. McGalliard v. (Tex.1986). shoving” 694, “slapped” may and that he had her. 722 It S.W.2d 697 It re is testimony any noted that with her solve continued inconsistencies in the Id.; Wilson, 273, housekeeping except activities for restric witness. Benoit 150 Tex. v. overhead, (1951). reaching may accept tions such as and Dr. 239 It S.W.2d 796
477 damages, for future which included lay testimony experts. of “zero” over that of McGalli Kuhlmann, an- at elements of mental v. 697. ard S.W.2d care, is so and future medical guish Moreover, af trier of fact is weight against great evaluating forded considerable discretion clearly wrong and as to be of the evidence testimony damages. opinion issue of manifestly unjust. point The is first error rule, peculiarly within general Id. As a it is overruled. jury province weigh of the experts. Pilk evidence and the is that the trial point The second of error Kornell, It is ington v. denying appel- its discretion court abused jury province of the to decide within the applied motion for new trial because lant’s expert Id. which witness should credited. trial wrong of review. The standard testimony of an issue of denying order the motion court stated only evidentiary significance has for new trial. binding upon jury. Novosad right to a trial Recognizing a citizen’s Mid-Century Ins. nature and the non-reviewable writ). (Tex.App. Antonio —San granting a new trial courts following ap- in Pilkington statement cautiously charged responsibility plies here: pow- prudently exercise their inherent Applying principles, these we conclude jury’s findings grant disregard er present in the case believe could duty have a a new trial. Trial courts do any any part testimony all or objectively guard improper ver- disregard any part witness and all or prejudice improper or other dict based on Indeed, witness. motives. judge sole witnesses’ *6 question simple is not of whether the It credibility weight given to be their jury, as disagrees court with the is often testimony. Rather, must the case. the determination Kornell, Pilkington v. at 230. jury’s made is whether the decision Therefore, all with the alternatives available unjust clearly manifestly given wrong and jury, to the can we conclude were undisputed evi- the uncontroverted and preponderance convinced evi of the jury’s if the in the dence. Even verdict damages dence award amount appears inadequate, I instant case believe greater than that awarded. When we con it and conscientious reflects a deliberate evidence, sider all the we cannot hold that jury upon interpreta- the decision based damages against is so the award tion the evidence. preponderance evi of the Appellant’s First Amended Motion for unjust. manifestly dence as to be Pool v. See Trial to the trial court both presented New Ford Motor We will insufficiency arguments, legal factual and our for not substitute that of IT consequently, states: IS the court’s Order jury- that Plaintiffs THEREFORE ORDERED Appellant points of zero out that the award Trial DENIED in its for New is Motion in the damages future claims is divided insufficiency entirety. legal contentions jury charge past from the claims and should plaintiff that had established were But, noted, separately. it is be considered conclusively law. or as a matter of matters brought un- past and future claims are both thus the motion for new trial The denial of have question, der one broad form and we legal insuffi- the factual and applied both adversely to question that heretofore decided ciency arguments. appellant’s contentions. However, insuf- appeal only the factual on Even if we were to assume the presented. Tex. separate damage question ficiency assignment with is claims to abe 324(b)(3). appellant’s conten- considering It is jury of dam- R.Civ.P. each element wrong applied finding trial court ages, jury we that the tion would conclude required standard of review a factual medical. It also seems evident that there is insufficiency evaluation. some contradiction finding between expenses compensa- medical and no other grant trial court’s refusal new damages. ble plainly, Put where there is binding reviewing trial is ordinarily courts treatment, resulting medical and will only be reversed for a clear abuse of bills, there usually injury, is and where there Fuller, Fillinger discretion. injury, pain, is there usually is and other (Tex.App. —Texarkana Counterbalancing attendant loses. these writ). plaintiffs though considerations is the obli- gation jury to obtain favorable answers be- While there are in numerous eases proof. cause she has the burden She did volving trial court actions when the motion get obtaining them. Not favorable find- jury new trial is based misconduct or ings newly evidence, party on issues where a has the burden discovered we can find no proof legal has repercussions. cases considerable reversing a trial court’s order because The thrust of the trial court the law insufficient applied wrong standard claims, in denying cases, review in historical the motion. The terms and modern reason paucity uphold jury for the appel except very understandable: verdict , apply late court must correct standard of limited circumstances. A this state requested, great power. review. In this case has has Jurors “the sole requires, the law Ap judges credibility this be done. of the witnesses and plying necessary review, weight standard of not given testimony.” to be their one, ed in point 226a, discussion of error we approved Tex.R.Civ.P. instruction III. previously argument have overruled the tampered Their decision is not to be award of is so lightly, plaintiff whether it favors the or the great' weight evi has, have, defendant. The and should manifestly dence so unjust. as to be the final word on facts. Therefore, say we cannot the order supreme court has stated the standard trial court applied wrong reflects it by which we sufficiency review a factual standard of review as to the factual insuffi- point: assess all we the evidence and reverse ciency hand, complaint. On the other even if challenged for a trial finding new had, reversal purpose. would serve no For *7 great is weight preponder- so appellant presented precise question of ance of the evidence to manifestly as be insufficiency factual for this court to deter- Co., unjust. Pool v. Ford Motor 715 S.W.2d mine. Point of error two is overruled. 629, (Tex.1986); Bain, 635 Cain 709 judgment
The is affirmed. (Tex.1986); 176 King’s In re
Estate, 150 Tex. HARDBERGER, Justice, (1951). concurring. “In considering great weight points fact, complaining jury’s of a to failure find a I concur in the and the review of appeals courts of should be mindful that a majority facts set forth in the opinion. How- jury by not was convinced ever questions Peterson raises serious in this Herbert, of evidence.” Herbert v. appeal analysis fully that deserve further (Tex.1988). 141, 144 is Reversal warranted majority dealt with in opinion. There- only detailing if a of the evidence shows that fore, I respectfully concur. weight great supports of the evidence affirmative answer. Id. Jury Appellate The The Court true, out, appellants point It as the support There was evidence is that case to monetary damage appeals of the courts of the court awards each of last sufficiency elements to resort jury. questions. submitted fact of evidence there support appeal was more evidence to But giving courts should use considerable of damages than the finding exercising power zero restraint their to over- damages past for all except Magna elements turn The work. Charta True, observations give rights juries, did in this case. their King John to forced doctors, disagreed treating but appellate with the two courts. they If jury, right. has that didn’t have majority opinion sets The out several rea- authority, have to that then there would be sons, again, don’t need to be recited as which testimony medical. expert to establish future jury may they why have found as did. ways in more expert An can be contradicted think Ms. The blunt truth is didn’t He expert. than can be contra- another hurt, at not from this Peterson was least by facts observations dicted And is not accident. while evidence Ms. parties themselves. witnesses overwhelming viewpoint, for such a there within the had nine doctor visits Peterson contrary, is we find there is evidence years three the collision trial. between uphold evidence to the verdict. sufficient could have happened Other that events injury. There evidence she caused Expert Testimony Future Medical overwhelming hurt at That is not wasn’t all. points Appellant out that both doctors that going to that future medical is be testified on future medical care that required that can to this acci- be attributed Ms. would need some future medi- Peterson dent. care, contradictory cal and as there expert opinion, court has no choice but to This court’s case of Novosad v. Mid-Cen- damages. agree. award We cannot tury (Tex.App.— S.W.2d 546 Ins. 1994) San Antonio is instructive. below, legion cases,
A
of Texas
named
plaintiff
required
have
that
held
is not
jury was
free
The
to disbelieve
testify
have
as to
a doctor
future medical
testimony concerning
opinion
Dennis’
damages. The
is that
converse
medical care.
need for
cost
future
jury
testify.
can disbelieve a doctor
does
may
guided by
jury
to be
choose
probability”
Texas follows the “reasonable
damages,
on future medical
but
injuries:
personal
rule
(cites omitted).
it ...
is not bound
‘Testimony
damages]
experts
[on
Adhering
probability”
to the “reasonable
evidentiary
binding upon
and not
trier
rule, the Texas courts have also consistent-
of fact.’
ly
held
the award of future medical
expenses
primarily
is matter
for the
Id. at 550.
precise
to determine. No
evidence is re-
quired.
may
goes
explain
its
court
on to
there
make
award
may
upon
injuries,
uncontro-
based
the nature of the
be some circumstances where
trial,
may
expert testimony
regarded care
verted
be
rendered before
subject
injured
if the nature of
matter
party
at the
conclusive
condition
time
(numerous
cited).
guided solely by
requires the
cases
experts
and the evidence
other-
*8
(Tex.
401,
Hughett Dwyre,
v.
624 S.W.2d
405
wise credible and free
contradictions
n.r.e.).
1981,
App.
writ ref'd
For
—Amarillo
inconsistency.
and
But concludes:
authority
wording,
additional
and similar
see
187,
Furr’s,
v. Logan,
Inc.
893
194
S.W.2d
by physician’s diag
are not
a
Juries
bound
1995).
is
(Tex.App.
Paso
“Plaintiff
—El
consequences
future
of an
nosis as
the
required to establish the future medical con
Inc.,
injury.
v. Furr’s
833
Balandran
sequences
by
testimony
injury
expert
of her
1992,
648,
(Tex.App.
652
Paso
S.W.2d
—El
also,
probability.”
based on reasonable
See
writ)
diagnoses MRI
(conflicting
no
dis-
Leath,
Enterprises
Beverly
v.
829 S.W.2d
Lines,
positive);
v. Pan Am. Van
Hebert
1992).
382,
(Tex.App.
386
Inc.,
—Waco
222
at
...
there is
When
testimony concerning
jury,
expert
expert
A
the
without the benefit of
testi-
injuries,
injuries,
consequences
the
mony,
party’s
can look
the
future
at
nature
trial,
necessarily
jury
such
medical care rendered before
is not
bound
Vela,
testimony.
v.
plaintiff
City
at
trial and
San Antonio
condition
314,
(Tex.App.
762
Anto-
up their own mind. That is what
S.W.2d
321
make
—San
denied)
1988,
Therefore,
application
nio
writ
...
I
a
this Because believe
correct
appropriate
jury.
was a
standard of review mandates a
matter to he decided
respectfully
I
new
dissent.
Id. at 551.
suggests,
appropri
As the concurrence
Conclusion
in
ate standard of review is illustrated Novo
Co.,
Mid-Century
v.
sad
Ins.
requires
appeals,
Pool
the court of
when
writ).
(Tex.App.
Antonio
reversing
insufficiency
a
—San
Novosad,
injured
plaintiffs
back was
as a
grounds,
in
to detail
“the evi-
jury
result of a car accident. The
awarded
in
dence relevant to the issue
consideration
$1,760
$7,600
wages;
past
for
lost
clearly
why
jury’s finding
state
$10,000
expenses;
future medical
for
factually
against
insufficient or is so
$10,000
anguish;
physical
and mental
great weight
preponderance
as to be
impairment.
appeal,
Id. at
551. On
manifestly unjust; why it shocks the con-
jury’s
Novosad contended that the
award of
science;
clearly
or
demonstrates bias.” Pool
$7,600
past
expenses
and future medical
Co.,
v. Ford Motor
DUNCAN, Justice, dissenting. administered, yet cedure not failed to work.” Jinkins, expert, Id. third majority purports apply appro- that, reviewed Novosad’s MRI and indicated priate standard of review and determines although possibility, disc herniation was a jury’s damage finding is not “so *9 “there was definite evidence of disc ‘[n]o and Finally, Id. at herniation.’” Novosad unjust.” manifestly of the evidence as to be herself testified that “she would not even view, however, majority actually my In surgery consider unless it was convenient to points overrules Ms. Peterson’s of error be- her work schedule as a teacher.” Id. at 550. cause it decides there is “some evidence of rejected probative support argument, force” to non- This court Novosad’s Estate, findings. King’s noting contradicting See In re 150 Tex. there was “[h]ere (1951) curiam). (per testimony presented, and even Dr. that, he did since leg. contra- Dr. Richter testified testimony was not Dennis’ free that Ms. Peterson inconsistency.” 550-51. at that time and Id. at not believe diction place injuiy spinal our because “[i]t The court concluded that is not and had suffered a other, that of seri- injury disguise to substitute our more muscle can where, here, as jury, particularly pain can injuries, strong medication and ous upon a fact which has failed find he problems, up more serious cover these and con- proof had the burden and Ms. Pe- only Tylenol advised prescribed presented.” Id. at 551 flicting testimony was orthopedic return for an referral terson to added). view, my the distinc- (emphasis Dr. never Richter problems persisted. case demon- tions between Novosad this injuries related again saw Ms. Peterson applying strate that well-established collision, testified, unequivocal- he to the us to the before standard review record to the ly, that he would defer board-certified reverse remand mandates that we Guzman, as to Drs. Earle and experts, for a new trial. case inju- spinal Ms. suffered a whether Peterson ry as a result of the accident. above, testi- As mentioned Novosad herself that “she not even consider sur- fied would acci- Approximately one month after the work gery unless it was convenient to her dent, previous at the recommendation of her a Id. That is schedule as teacher.” at 550. Dr. attorney, Ms. saw Dr. Peterson Viola. Contrary here. to defen- situation tests, in- physical performed various Viola brief, suggestion dants’ in their Ms. Peterson that, x-rays, cluding while and determined testify plans “that she had to ever did no no Peterson question there was but that Ms. Rather, “I surgery.” have she testified: injuries back to her neck and had sustained know there will come a time I have to when accident, at the a of the he did not as result done,” surgery have this but she said she injuries perma- time believe that were “going long as as [she] stand the However, Dr. Viola also testified nent. distinguishable can.” Novosad is nothing inconsistent his examination revealed respect. indeed instructive a second reports with the of Drs. Earle and Guzman. expert testimony in Novosad before microscopic that a tear explained further He to the con- as need for early on not demonstrated in a disc often inconsistent, flicting internally and even point it be- degenerate to the and can in this while case the four doctors that testi- visit, Dr. After first comes herniated. expressed fied either or in sub- again. Peterson never saw Ms. Viola agreed to at least a stance as one issue —as accident, result of the Ms. suffered. Peterson the ac- Approximately seven months after injury an to her lower back the lower cident, of her of two recommendation would, least, injury require very back at the patient of neighbors, became a Ms. Peterson (the diagnostic procedure surgical a disco- Earle’s; time of Dr. Earle Dr. gram) to whether sur- determine corrective Ms. five Addition- had seen Peterson times. required. gery would be defendants, Ms. ally, request independent was examined Peterson regarding Pe- Four doctors testified Ms. examiner, Both Dr. Dr. Guzman. medical Richter, physical injuries: gen- Dr. a terson’s and Dr. believed Ms. Peterson Earle Guzman Viola, practitioner; chiropractor; eral Dr. injury to her as a result suffered an knee had Earle, spine specialist is board- Dr. who however, collision; considered neither orthopedic surgery, spine sur- certified injury permanent, and recom- neither gery, pain management Ms. Peter- surgery. Both doctors also Guzman, mended treating physician; son’s injury to that Ms. Peterson suffered specialist orthopedic sur- board-certified They result of the accident. her neck gery independent examiner. however, disagreed, recommended Dr. Richter Ms. Peterson once on saw diseogram Earle believed a days acci- treatment. Dr. after the October 1990—three surgery would right indicate corrective dent. Ms. Peterson was bruised on the would *10 Pe- head, knee, right believed Ms. required, her left her while Guzman side of her and require only testimony terson expert would anti-inflamma- The uncontroverted thus that, injured tory and establishes if Ms. medication exercise. Peterson accident, as a result she was entitled to back, As to Ms. lower both Dr. Peterson’s and, at diseogram least rea- $900 agreed Earle and Dr. Guzman that Ms. Pe- $55-60,000 probability, medical sonable permanent injury terson had suffered to surgery her corrective on lower back. collision, her lower as a result back of the impeached; This was not it was not determining definitive means of evidence; inconsistent there injury require whether this would corrective jury, was no other discemable reason surgery perform diseogram, which was to already injury having resulting found an surgical procedure itself a with all the at- collision, disregarded from the to have it. tendant to risks. As Ms. Peterson’s lower Powers, Ratliff, See William Jr. & Jack An- injury, only purported back dispute be- at other Look “No Evidence” and “Insuffi- actually tween Drs. Guzman Earle was Evidence,” cient L.Rev. Texas dispute gave not a all. at Dr. Guzman no (1991). probability diseogram as to the that a recognize non-surgical I treatments would the need for sur- indicate corrective were recommended Richter and Drs. Vio- gery, while Dr. Earle testified that there accident, shortly pointed la after as out diseogram 51% that the indi- chance would however, majority opinion; as noted surgery cate the corrective need for as one above, also both these doctors deferred to or more discs. Dr. Earle testified further specialists, the board-certified Drs. Guzman diseogram approximately that a would cost Earle, why explained both their and, if required, surgery Ms. $900 diagnoses might initial from those of differ Peterson’s lower back would between cost specialists. I recognize there is $55-60,000. from some evidence which could have inferred that Ms. was not Peterson In summary, both Dr. Richter and Dr. or, injured injured, she was was not as a Guzman, Viola deferred to Drs. Earle and collision, pointed out in result of agreed Drs. Earle and Guzman Ms. However, majority concurring opinions. injuries Peterson had suffered to her neck jury clearly did not make either infer- as a lower back result of collision. ence; instead, jury expressly found they necessary disagreed While as to the Questions 1, 2, response to and 3 that Ms. injury, treatment for Ms. Peterson’s neck injuries Peterson’s resulted the colli- Drs. Earle Guzman that Ms. sion, proximately and the collision was diseogram Peterson to have a to de- needed driver, negligence caused his surgery termine corrective on her whether employer, Finally, and Ms. I rec- Peterson. lower back was indicated. Since Dr. Guzman ognize Ms. Peterson had discontinued did testify as to the either cost physical therapy program, her and neither diseogram diseogram or as whether the diseogram surgery nor corrective would indicate the need for corrective sur- performed had been or scheduled the time gery, the uncontradicted facts, However, view, my of trial. these before the established: merely probative some evidence of force | To determine whether corrective sur- jury’s nonfinding support of future gery on lower back be re- would damages; experts’ do not render quired, required Peterson Ms. would be regarding Ms. Pe- uneontroverted evidence spend approximately in future $900 need for terson’s her lower (the expenses cost of the disco- “overwhelming.” than back less gram); I would reverse and remand this case for a There was a 51% chance that disco- } new trial. gram positive, and Peter- would be Ms. required undergo
son cor- would be surgery on her at a
rective lower back $55-60,000.
cost of