Preview
1/10/2019 11:25 AM
Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-17-006858 D-1-GN-17-006858
Irene Silva
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MARIA ALVIDREZ, IN THE DISTRICT COURT
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Plaintiff,
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vs. 345TH JUDICIAL DISTRICT*
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DANIEL FRASIER,
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Defendant, TRAVIS COUNTY, TEXAS
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DEFENDANT’S RESPONSE TO PLAINTIFF’S
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MOTION FOR PARTIAL SUMMARY JUDGMENT
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TO THE HONORABLE JUDGE OF SAID COURT:
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DANIEL FRASIER, hereinafter referred to as Defendant, whether one or more, files this
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response to Plaintiff’s Motion for Partial Summary Judgment and shows as follows:
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1. Plaintiff sued Defendant alleging a personal injury arising out of an automobile
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accident. Defendant has responded with a general denial. Plaintiff has filed several medical
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affidavits under Civil Practice & Remedies Code §18.001. Defendant has not filed counter
affidavits. Plaintiff now asserts that because those Affidavits have not been controverted Plaintiff
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should be awarded Partial summary judgment as to the necessity of medical care plaintiff received,
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the amount of the medical charges, and the reasonableness of the charges for plaintiff medical care.
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2. Texas law provides that affidavits submitted pursuant to section 18.001 of the Texas
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Civil Practice & Remedies Code are not conclusive as to the amount of damages, and only
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sufficient evidence to support a finding of fact. See Barrajas v. Metro. Transit Auth., 945 S.W.2d
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207, 208 (Tex. App.– San Antonio 1997, no writ).
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Beauchamp v. Hambrick involved a motor vehicle accident where a jury awarded only a
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portion of the medical bills submitted and the injured party moved for a JNOV requesting damages
for past medical expenses in the amount reflected in the affidavits. Beauchamp v. Hambrick, 901
Alvidrez vs. Frasier PAGE 1
DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
0455743138.1
S.W.2d 747, 748 (Tex. App.—Eastland 1995, no writ). The District Court in the original
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proceeding granted the JNOV and the Defendant appealed. Id. The Court of Appeals held that
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the trial court had erred in granting the JNOV even though the motorist had produced affidavits
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showing a higher amount. Id. The Court held that Section 18.001 of the Texas Civil Practices and
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Remedies Code provides that evidence of reasonableness and necessity submitted under the statute
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will support a finding of fact, however, the statute does not provide the evidence is conclusive
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nor does it address the issue of causation. Id at 749 (emphasis added).
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In Barrajas, the Court of Appeals in San Antonio clearly held that “affidavits submitted
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pursuant to Section 18.001 are not conclusive as to the amount of damages, but merely ‘sufficient
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evidence to support a finding of fact.’” See Barrajas
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209. Barrajas involved a bus accident with the VIA Metropolitan Transit Authority, whereby the
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Appellant had appealed the amount of damages awarded to him. Id at 208. The Appellant argued
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that because the Appellee did not contradict any of the affidavits or other evidence, the jury had
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no choice but to award him the amount that he proved. Id. Itwas Appellant’s position that
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pursuant to section 18.001 of the Civil Practices and Remedies Code, these uncontroverted
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affidavits established that the bus accident led to his medical damages in the amount of that
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submitted in the affidavits. Id. The Court of Appeals rejected this argument stating that, “a jury
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may choose to be guided by expert testimony on damages, but is not bound by it.”
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Id. The Court
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of Appeals further held that the jury may disbelieve a witness, including a physician, even though
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his testimony is not contradicted. Id. See also Novasad v. Mid-Century Ins. Co., 881 S.W.2d 546,
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550 (Tex. App.—San Antonio 1994, no writ). It was the Court’s position in Barrajas that the jury
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was entitled to scrutinize the medical bills produced by the Appellant and determine which bills
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and future expenses were connected to the bus accident. See Barrajas, 945 S.W.2d at 210.
Alvidrez vs. Frasier PAGE 2
DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
0455743138.1
3. In the case at bar, the Plaintiff is asserting that uncontroverted affidavits
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conclusively prove that such bills and treatment are established as a matter of law. Such assertion
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is contrary to Texas law; and usurps the purpose and duty of the jury in making factual
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determinations. Pursuant to the Texas Civil Practices & Remedies Code, such affidavits may be
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submitted in lieu of live expert testimony, however are not conclusive. TEX. CIV. PRAC. & REM.
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CODE § 18.001. A jury must find that all of the medical expenses submitted are related to the
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accident in question, and enter such a finding before the plaintiff can be entitled to such
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judgment. The jury is free to find that all, some, or none of the expenses submitted by affidavit
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were causally related to the accident in question.
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4. It is Defendant’s contention that Plaintiff
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Judgment because the mere submission of §18.001 affidavits do not establish damages as a matter
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of law and Plaintiff has submitted no authority for this proposition. Specifically, the causal nexus
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between the alleged injuries and the accident in question have not been conclusively
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determined. Only a jury or fact-finder may determine what amount of the treated injuries was in
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fact related to the accident, if at all. Texas law is clear as to the effect of section 18.001 of the
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Texas Civil Practices & Remedies Code. In repeated opinions, the Courts have concluded that
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affidavits submitted pursuant to Section 18.001 are not conclusive as to the amount of damages,
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but merely sufficient evidence to support a finding of fact. Moreover, when assessing personal
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injury damages, the trier of fact has great discretion in fixing the amount actually awarded. This
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discretion allows the jury to judge the credibility of the witnesses and the evidence and reconcile
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any inconsistencies so as to accept all, some, or none of it when deliberating. As such, genuine
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issues of fact in controversy do still exist and Plaintiff’s Motion for Partial Summary Judgment
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must be denied.
Alvidrez vs. Frasier PAGE 3
DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
0455743138.1
WHEREFORE, Defendant requests that this Court deny Plaintiff’s Motion For Partial
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Summary Judgment and for such other relief to which Defendant may be entitled.
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Respectfully submitted,
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SUSAN L. FLORENCE & ASSOCIATES
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MANUEL HERNANDEZ
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TBN: 24007355
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9020 Capital of Texas Highway, Bldg. I,
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Suite 340
Austin, TX 78759
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AustinLegal@allstate.com
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(512) 241-3008
(877) 684-4168 (fax)
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ATTORNEY FOR DEFENDANT(S)
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DANIEL FRASIER
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Alvidrez vs. Frasier PAGE 4
DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
0455743138.1
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CERTIFICATE OF SERVICE
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I hereby certify that a true and correct copy of the foregoing has been served in compliance
with Rules 21 and 21a of the Texas Rules of Civil Procedure on the 10th
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day of January, 2019, to:
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Attorney for Plaintiff Alvidrez
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S. Burgess WIlliams
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John (Jack) C. Zinda, Esquire
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Zinda Law Group, PLLC
8834 N Capital of Texas Hwy Ste 304
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Austin TX 78759
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MANUEL HERNANDEZ
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Alvidrez vs. Frasier PAGE 5
DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
0455743138.1
Barrajas v. VIA Metropolitan Transit Authority, 945 S.W.2d 207 (Tex. App., 1997)
Page 207 mental anguish, $120 for loss of earning
capacity, $0 for physical impairment, and
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945 S.W.2d 207 $2190.25 for medical care. The trial court
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Juan Gonzalez BARRAJAS, Appellant, entered judgment in accordance with the
v. jury's verdict. Barrajas filed a motion for new
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VIA METROPOLITAN TRANSIT trial, which was overruled by operation of
AUTHORITY, Robert Martin Rivera, law.
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and Charles Frederick Brittain,
Appellees. On appeal, Barrajas contends that the
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No. 04-96-00183-CV. jury's award for medical expenses was too
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Court of Appeals of Texas, low. In his first point of error, Barrajas argues
San Antonio. that the jury's failure to find that he suffered
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April 9, 1997. past medical expenses of at least $6,639.15
was against the great weight and
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Robert E. Valdez, Robert E. Valdez, P.C., preponderance of the evidence. His second
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San Antonio, for appellant. point of error challenges, as being against the
great weight and preponderance of the
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Ricardo R. Reyna, Escamilla & Poneck, evidence, the jury's failure to find that he
Inc., Sunny J. Jansma, Wallace B. Jefferson, would incur future medical expenses. In point
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Crofts, Callaway & Jefferson, P.C., San of error three, Barrajas claims that because
Antonio, for appellees. the jury's findings were against the great
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weight and preponderance of the evidence,
Page 208 the jury was biased and prejudiced against
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him. Because the jury was not asked to make
Before STONE, GREEN and DUNCAN,
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separate awards for past and future medical
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expenses, we assess the sufficiency of the
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medical damages as a whole; thus, we will
GREEN, Justice.
address all of Barrajas' points of error
together.
Juan Gonzalez Barrajas appeals from a
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jury verdict awarding him $2,510.25 for the
In reviewing the factual sufficiency of the
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damages he suffered following a bus accident.
evidence, we consider all of the evidence in
In three points of error, he challenges the
the record and reverse only if the jury's
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verdict on factual sufficiency grounds.
finding is so against the great weight and
preponderance of the evidence as to be
On June 1, 1993, Barrajas was riding on a
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manifestly unjust. Pool v. Ford Motor Co., 715
bus owned by VIA Metropolitan Transit
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S.W.2d 629, 635 (Tex.1986); Cain v. Bain,
Authority when the bus was bumped from the
709 S.W.2d 175, 176 (Tex.1986). Barrajas
rear by a VIA trolley travelling at
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argues that because VIA did not contradict
approximately five miles per hour. The driver
any of the affidavits or other evidence proving
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of the bus was Robert Martin Rivera, and
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the amount of Barrajas' damages, the jury had
Charles Frederick Brittain drove the trolley.
no choice but to award Barrajas the amount
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Barrajas sued VIA, Rivera, and Brittain
that he proved. At trial,Barrajas submitted
("VIA") for his personal injuries. At trial, VIA
the affidavits of several of his health care
stipulated to liability for the accident, leaving
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providers. Each of these affidavits contained
only damages at issue. In response to the
the statement that the "bill for services [were]
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court's charge instructing the jury to consider
rendered as a result of the injuries sustained
both past and future damages, the jury
by Juan Barrajas on June 1, 1993." He claims
awarded Barrajas $200 for physical pain and
that, pursuant to section 18.001 of the Civil
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Barrajas v. VIA Metropolitan Transit Authority, 945 S.W.2d 207 (Tex. App., 1997)
Practice and Remedies Code, these writ). Therefore, in determining the
uncontroverted affidavits established that the sufficiency of the evidence, appellate courts
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bus accident led to his medical damages in must accept the jury's resolution of any
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the amount of at least $6,639.15. 1 conflicts or inconsistencies in the evidence.
Soriano, 844 S.W.2d at 826 (citing Pool v.
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Section 18.001 of the Civil Practice and Ford Motor Co., 715 S.W.2d 629 (Tex.1986)).
Remedies Code, in pertinent part, provides: Additionally, a jury may choose to be guided
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by expert testimony on damages, but it is not
(b) Unless a controverting affidavit is filed as bound by it.Peterson v. Reyna, 908 S.W.2d
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provided by this section, an affidavit that the 472, 477 (Tex.App.--San Antonio 1995),
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amount a person charged for a service was modified on other grounds, 920 S.W.2d 288
reasonable at the time and place that the (Tex.1996); Novosad, 881 S.W.2d at 550; see
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service was provided and that the service was Callejo v. Brazos Elec. Power Coop., Inc., 755
necessary is sufficient S.W.2d 73, 75 (Tex.1988). In fact, the jury
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may disbelieve a witness, including a
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Page 209 physician, even though his testimony is not
contradicted. See Novosad, 881 S.W.2d at
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evidence to support a finding of fact by judge
551.
or jury that the amount charged was
reasonable or that the service was necessary.
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Barrajas contends that the jury was
required to accept the testimony of Dr. Arthur
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TEX. CIV. PRAC. & REM.CODE ANN. §
Hernandez concerning the need and amount
18.001(b) (Vernon 1986). This statutory
of future medical expenses on the ground that
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provision only touches upon three elements
"uncontradicted opinion testimony of an
of proof: (1) the amount of the charges, (2)
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expert from which only one conclusion can be
the reasonableness of the charges, and (3) the
drawn from the facts is binding on the trier of
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necessity of the charges. Beauchamp, 901
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fact." We disagree. The supreme court has
S.W.2d at 748.
held that:
Affidavits submitted pursuant to section
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[j]udgments and inferences of experts or
18.001 are not conclusive as to the amount of
skilled witnesses, even when uncontroverted,
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damages, but merely "sufficient evidence to
are not conclusive on the jury or trier of fact,
support a finding of fact." See TEX. CIV.
unless the subject is one for experts or skilled
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PRAC. & REM.CODE ANN. § 18.001(b);
witnesses alone, where the jury or court
Beauchamp, 901 S.W.2d at 748, 749. In
cannot properly be assumed to have or be
assessing personal injury damages, the trier
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able to form correct opinions of their own
of fact has great discretion in fixing the
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based upon evidence as a whole and aided by
amount of the damage award. McGalliard v.
their own experience and knowledge of the
Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986);
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subject of inquiry.
Texas Farmers Ins. Co. v. Soriano, 844
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S.W.2d 808, 826 (Tex.App.--San Antonio
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McGalliard, 722 S.W.2d at 697; see
1992), reversed on other grounds, 881 S.W.2d Gregory v. Texas Employers Ins. Assoc., 530
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312 (Tex.1994). It is for the jury to judge the S.W.2d 105, 107 (Tex.1975). Juries are not
credibility of the witnesses, to assign the bound by a physician's diagnosis as to the
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weight to be given their testimony, and to future consequences of an injury. Novosad,
resolve any conflicts or inconsistencies in the 881 S.W.2d at 551. Thus, in the present case,
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evidence. Soriano, 844 S.W.2d at 826; see Dr. Hernandez' opinion concerning Barrajas'
Novosad v. Mid-Century Ins. Co., 881 S.W.2d need for future medical care was not binding
546, 551 (Tex.App.--San Antonio 1994, no upon the jury.
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Barrajas v. VIA Metropolitan Transit Authority, 945 S.W.2d 207 (Tex. App., 1997)
Moreover, VIA presented evidence that 472, 480 (Tex.App.--San Antonio
contradicted Barrajas' need for future medical 1995)(Duncan, J., dissenting), modified on
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treatment. The jury heard evidence that the other grounds, 920 S.W.2d 288 (Tex.1996), I
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impact in question was less than five miles do not agree with the majority that a jury is
per hour, that Barrajas was the only never bound by a physician's uncontroverted
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passenger injured, and that Barrajas' injuries expert testimony on past medical expenses. 1
were either non-existent or barely
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perceptible. Additionally, Santa Rosa In Peterson, the uncontradicted expert
Hospital, where Barrajas was first treated, testimony established that "as a result of the
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reported that Barrajas' x-rays indicated the accident, Ms. Peterson suffered an injury to
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each region examined was normal, and the her lower back and the lower back injury
evidence showed that the emergency room would, at the very least, require a diagnostic
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physician released Barrajas to work within surgical procedure (the discogram) to
two days and with no work limitations. In determine whether corrective surgery would
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light of this evidence, the jury could find that be required." Peterson, 908 S.W.2d at 481
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Dr. Hernandez' conclusions did not "comport (Duncan, J., dissenting). The uncontroverted
with the jury's idea of sound logic." See expert testimony further established that a
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McGuffin v. Terrell, 732 S.W.2d 425, 428 discogram would cost approximately $900.
(Tex.App.--Fort Worth 1987, no writ). It is Id. at 482. In my view, therefore, the jury's
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not our place to substitute our judgment for finding of zero future medicals was not
that of the jury. Novosad, 881 S.W.2d at 551. supported by factually sufficient evidence. Id.
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The jury was entitled to scrutinize the This case, however, is distinguishable
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medical bills that Barrajas produced and from Peterson because here the experts
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determine which bills and which future plainly disagreed on the extent to which Mr.
medical expenses were connected to the bus Barrajas' injuries were caused by the accident.
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Therefore, I join in the majority's opinion
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accident. The jury could also choose to be
guided or not by the testimony on the amount insofar as it is based upon the controverted
of nature of the experts' testimony as to the
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extent of the injuries caused by the accident
Page 210 and concur in the judgment.
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damages. The jury's response to Barrajas' ---------------
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claim for both past and future medical
expenses was not so against the great weight 1 Both parties couch their arguments in terms
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and preponderance of the evidence as to be of causation. In its brief, VIA argues that
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manifestly unjust. Based upon the damages Barrajas' affidavits did not establish that the
that the jury awarded, we do not find any accident caused $6,639.15 worth of damages.
However, we view the issue presented as a
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evidence that the jury's actions were based on
bias or prejudice against Barrajas. Barrajas' question concerning the extent of Barrajas'
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injuries and not one of causation since the
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points of error are overruled.
jury's award of damages necessarily implies
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Accordingly, the judgment of the trial that it found a causal nexus between the
court is affirmed. accident and Barrajas' injuries. See Morgan v.
of
Compugraphic Corp., 675 S.W.2d 729, 731-32
DUNCAN, Justice, concurring. (Tex.1984) (listing two forms of causation
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that plaintiff must prove: (1) causal nexus
For the reasons set forth in my dissent
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1/10/2019 11:25 AM Velva L. Price District Clerk Travis County CAUSE NO. D-1-GN-17-006858 D-1-GN-17-006858 Irene Silva e MARIA ALVIDREZ, IN THE DISTRICT COURT ic Pr Plaintiff, L. vs. 345TH JUDICIAL DISTRICT* a DANIEL FRASIER, lv Defendant, TRAVIS COUNTY, TEXAS Ve DEFENDANT’S RESPONSE TO PLAINTIFF’S k MOTION FOR PARTIAL SUMMARY JUDGMENT er TO THE HONORABLE JUDGE OF SAID COURT: Cl DANIEL FRASIER, hereinafter referred to as Defendant, whether one or more, files this ct response to Plaintiff’s Motion for Partial Summary Judgment and shows as follows: tri is 1. Plaintiff sued Defendant alleging a personal injury arising out of an automobile D accident. Defendant has responded with a general denial. Plaintiff has filed several medical . Co affidavits under Civil Practice & Remedies Code §18.001. Defendant has not filed counter affidavits. Plaintiff now asserts that because those Affidavits have not been controverted Plaintiff is av should be awarded Partial summary judgment as to the necessity of medical care plaintiff received, Tr the amount of the medical charges, and the reasonableness of the charges for plaintiff medical care. y 2. Texas law provides that affidavits submitted pursuant to section 18.001 of the Texas op Civil Practice & Remedies Code are not conclusive as to the amount of damages, and only c sufficient evidence to support a finding of fact. See Barrajas v. Metro. Transit Auth., 945 S.W.2d l ia 207, 208 (Tex. App.– San Antonio 1997, no writ). fic Beauchamp v. Hambrick involved a motor vehicle accident where a jury awarded only a of Un portion of the medical bills submitted and the injured party moved for a JNOV requesting damages for past medical expenses in the amount reflected in the affidavits. Beauchamp v. Hambrick, 901 Alvidrez vs. Frasier PAGE 1 DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT 0455743138.1 S.W.2d 747, 748 (Tex. App.—Eastland 1995, no writ). The District Court in the original e proceeding granted the JNOV and the Defendant appealed. Id. The Court of Appeals held that ic Pr the trial court had erred in granting the JNOV even though the motorist had produced affidavits L. showing a higher amount. Id. The Court held that Section 18.001 of the Texas Civil Practices and a Remedies Code provides that evidence of reasonableness and necessity submitted under the statute lv will support a finding of fact, however, the statute does not provide the evidence is conclusive Ve nor does it address the issue of causation. Id at 749 (emphasis added). k In Barrajas, the Court of Appeals in San Antonio clearly held that “affidavits submitted er Cl pursuant to Section 18.001 are not conclusive as to the amount of damages, but merely ‘sufficient ct evidence to support a finding of fact.’” See Barrajas tri v. Metro. Transit Auth., 945 S.W.2d at 209. Barrajas involved a bus accident with the VIA Metropolitan Transit Authority, whereby the is Appellant had appealed the amount of damages awarded to him. Id at 208. The Appellant argued D that because the Appellee did not contradict any of the affidavits or other evidence, the jury had . Co no choice but to award him the amount that he proved. Id. Itwas Appellant’s position that is pursuant to section 18.001 of the Civil Practices and Remedies Code, these uncontroverted av affidavits established that the bus accident led to his medical damages in the amount of that Tr submitted in the affidavits. Id. The Court of Appeals rejected this argument stating that, “a jury y may choose to be guided by expert testimony on damages, but is not bound by it.” op Id. The Court c of Appeals further held that the jury may disbelieve a witness, including a physician, even though l ia his testimony is not contradicted. Id. See also Novasad v. Mid-Century Ins. Co., 881 S.W.2d 546, fic 550 (Tex. App.—San Antonio 1994, no writ). It was the Court’s position in Barrajas that the jury of was entitled to scrutinize the medical bills produced by the Appellant and determine which bills Un and future expenses were connected to the bus accident. See Barrajas, 945 S.W.2d at 210. Alvidrez vs. Frasier PAGE 2 DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT 0455743138.1 3. In the case at bar, the Plaintiff is asserting that uncontroverted affidavits e conclusively prove that such bills and treatment are established as a matter of law. Such assertion ic Pr is contrary to Texas law; and usurps the purpose and duty of the jury in making factual L. determinations. Pursuant to the Texas Civil Practices & Remedies Code, such affidavits may be a submitted in lieu of live expert testimony, however are not conclusive. TEX. CIV. PRAC. & REM. lv CODE § 18.001. A jury must find that all of the medical expenses submitted are related to the Ve accident in question, and enter such a finding before the plaintiff can be entitled to such k er judgment. The jury is free to find that all, some, or none of the expenses submitted by affidavit Cl were causally related to the accident in question. ct 4. It is Defendant’s contention that Plaintiff tri is not entitled to Partial Summary Judgment because the mere submission of §18.001 affidavits do not establish damages as a matter is of law and Plaintiff has submitted no authority for this proposition. Specifically, the causal nexus D between the alleged injuries and the accident in question have not been conclusively . Co determined. Only a jury or fact-finder may determine what amount of the treated injuries was in is fact related to the accident, if at all. Texas law is clear as to the effect of section 18.001 of the av Texas Civil Practices & Remedies Code. In repeated opinions, the Courts have concluded that Tr affidavits submitted pursuant to Section 18.001 are not conclusive as to the amount of damages, y op but merely sufficient evidence to support a finding of fact. Moreover, when assessing personal c injury damages, the trier of fact has great discretion in fixing the amount actually awarded. This l ia discretion allows the jury to judge the credibility of the witnesses and the evidence and reconcile fic any inconsistencies so as to accept all, some, or none of it when deliberating. As such, genuine of issues of fact in controversy do still exist and Plaintiff’s Motion for Partial Summary Judgment Un must be denied. Alvidrez vs. Frasier PAGE 3 DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT 0455743138.1 WHEREFORE, Defendant requests that this Court deny Plaintiff’s Motion For Partial e Summary Judgment and for such other relief to which Defendant may be entitled. ic Pr Respectfully submitted, L. SUSAN L. FLORENCE & ASSOCIATES a lv Ve MANUEL HERNANDEZ k TBN: 24007355 er 9020 Capital of Texas Highway, Bldg. I, Cl Suite 340 Austin, TX 78759 ct AustinLegal@allstate.com tri (512) 241-3008 (877) 684-4168 (fax) is ATTORNEY FOR DEFENDANT(S) D DANIEL FRASIER . Co is av Tr y op c l ia fic of Un Alvidrez vs. Frasier PAGE 4 DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT 0455743138.1 e ic Pr CERTIFICATE OF SERVICE L. I hereby certify that a true and correct copy of the foregoing has been served in compliance with Rules 21 and 21a of the Texas Rules of Civil Procedure on the 10th a day of January, 2019, to: lv Attorney for Plaintiff Alvidrez Ve S. Burgess WIlliams k John (Jack) C. Zinda, Esquire er Zinda Law Group, PLLC 8834 N Capital of Texas Hwy Ste 304 Cl Austin TX 78759 ct tri is MANUEL HERNANDEZ . D Co is av Tr y op c l ia fic of Un Alvidrez vs. Frasier PAGE 5 DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT 0455743138.1 Barrajas v. VIA Metropolitan Transit Authority, 945 S.W.2d 207 (Tex. App., 1997) Page 207 mental anguish, $120 for loss of earning capacity, $0 for physical impairment, and e 945 S.W.2d 207 $2190.25 for medical care. The trial court ic Juan Gonzalez BARRAJAS, Appellant, entered judgment in accordance with the v. jury's verdict. Barrajas filed a motion for new Pr VIA METROPOLITAN TRANSIT trial, which was overruled by operation of AUTHORITY, Robert Martin Rivera, law. L. and Charles Frederick Brittain, Appellees. On appeal, Barrajas contends that the a No. 04-96-00183-CV. jury's award for medical expenses was too lv Court of Appeals of Texas, low. In his first point of error, Barrajas argues San Antonio. that the jury's failure to find that he suffered Ve April 9, 1997. past medical expenses of at least $6,639.15 was against the great weight and k Robert E. Valdez, Robert E. Valdez, P.C., preponderance of the evidence. His second er San Antonio, for appellant. point of error challenges, as being against the great weight and preponderance of the Cl Ricardo R. Reyna, Escamilla & Poneck, evidence, the jury's failure to find that he Inc., Sunny J. Jansma, Wallace B. Jefferson, would incur future medical expenses. In point ct Crofts, Callaway & Jefferson, P.C., San of error three, Barrajas claims that because Antonio, for appellees. the jury's findings were against the great tri weight and preponderance of the evidence, Page 208 the jury was biased and prejudiced against is him. Because the jury was not asked to make Before STONE, GREEN and DUNCAN, D separate awards for past and future medical JJ. expenses, we assess the sufficiency of the . Co medical damages as a whole; thus, we will GREEN, Justice. address all of Barrajas' points of error together. Juan Gonzalez Barrajas appeals from a is jury verdict awarding him $2,510.25 for the In reviewing the factual sufficiency of the av damages he suffered following a bus accident. evidence, we consider all of the evidence in In three points of error, he challenges the the record and reverse only if the jury's Tr verdict on factual sufficiency grounds. finding is so against the great weight and preponderance of the evidence as to be On June 1, 1993, Barrajas was riding on a y manifestly unjust. Pool v. Ford Motor Co., 715 bus owned by VIA Metropolitan Transit op S.W.2d 629, 635 (Tex.1986); Cain v. Bain, Authority when the bus was bumped from the 709 S.W.2d 175, 176 (Tex.1986). Barrajas rear by a VIA trolley travelling at c argues that because VIA did not contradict approximately five miles per hour. The driver any of the affidavits or other evidence proving l of the bus was Robert Martin Rivera, and ia the amount of Barrajas' damages, the jury had Charles Frederick Brittain drove the trolley. no choice but to award Barrajas the amount fic Barrajas sued VIA, Rivera, and Brittain that he proved. At trial,Barrajas submitted ("VIA") for his personal injuries. At trial, VIA the affidavits of several of his health care stipulated to liability for the accident, leaving of providers. Each of these affidavits contained only damages at issue. In response to the the statement that the "bill for services [were] Un court's charge instructing the jury to consider rendered as a result of the injuries sustained both past and future damages, the jury by Juan Barrajas on June 1, 1993." He claims awarded Barrajas $200 for physical pain and that, pursuant to section 18.001 of the Civil -1- Barrajas v. VIA Metropolitan Transit Authority, 945 S.W.2d 207 (Tex. App., 1997) Practice and Remedies Code, these writ). Therefore, in determining the uncontroverted affidavits established that the sufficiency of the evidence, appellate courts e bus accident led to his medical damages in must accept the jury's resolution of any ic the amount of at least $6,639.15. 1 conflicts or inconsistencies in the evidence. Soriano, 844 S.W.2d at 826 (citing Pool v. Pr Section 18.001 of the Civil Practice and Ford Motor Co., 715 S.W.2d 629 (Tex.1986)). Remedies Code, in pertinent part, provides: Additionally, a jury may choose to be guided L. by expert testimony on damages, but it is not (b) Unless a controverting affidavit is filed as bound by it.Peterson v. Reyna, 908 S.W.2d a provided by this section, an affidavit that the 472, 477 (Tex.App.--San Antonio 1995), lv amount a person charged for a service was modified on other grounds, 920 S.W.2d 288 reasonable at the time and place that the (Tex.1996); Novosad, 881 S.W.2d at 550; see Ve service was provided and that the service was Callejo v. Brazos Elec. Power Coop., Inc., 755 necessary is sufficient S.W.2d 73, 75 (Tex.1988). In fact, the jury k may disbelieve a witness, including a er Page 209 physician, even though his testimony is not contradicted. See Novosad, 881 S.W.2d at Cl evidence to support a finding of fact by judge 551. or jury that the amount charged was reasonable or that the service was necessary. ct Barrajas contends that the jury was required to accept the testimony of Dr. Arthur tri TEX. CIV. PRAC. & REM.CODE ANN. § Hernandez concerning the need and amount 18.001(b) (Vernon 1986). This statutory of future medical expenses on the ground that is provision only touches upon three elements "uncontradicted opinion testimony of an of proof: (1) the amount of the charges, (2) D expert from which only one conclusion can be the reasonableness of the charges, and (3) the drawn from the facts is binding on the trier of . necessity of the charges. Beauchamp, 901 Co fact." We disagree. The supreme court has S.W.2d at 748. held that: Affidavits submitted pursuant to section is [j]udgments and inferences of experts or 18.001 are not conclusive as to the amount of skilled witnesses, even when uncontroverted, av damages, but merely "sufficient evidence to are not conclusive on the jury or trier of fact, support a finding of fact." See TEX. CIV. unless the subject is one for experts or skilled Tr PRAC. & REM.CODE ANN. § 18.001(b); witnesses alone, where the jury or court Beauchamp, 901 S.W.2d at 748, 749. In cannot properly be assumed to have or be assessing personal injury damages, the trier y able to form correct opinions of their own of fact has great discretion in fixing the op based upon evidence as a whole and aided by amount of the damage award. McGalliard v. their own experience and knowledge of the Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986); c subject of inquiry. Texas Farmers Ins. Co. v. Soriano, 844 l S.W.2d 808, 826 (Tex.App.--San Antonio ia McGalliard, 722 S.W.2d at 697; see 1992), reversed on other grounds, 881 S.W.2d Gregory v. Texas Employers Ins. Assoc., 530 fic 312 (Tex.1994). It is for the jury to judge the S.W.2d 105, 107 (Tex.1975). Juries are not credibility of the witnesses, to assign the bound by a physician's diagnosis as to the of weight to be given their testimony, and to future consequences of an injury. Novosad, resolve any conflicts or inconsistencies in the 881 S.W.2d at 551. Thus, in the present case, Un evidence. Soriano, 844 S.W.2d at 826; see Dr. Hernandez' opinion concerning Barrajas' Novosad v. Mid-Century Ins. Co., 881 S.W.2d need for future medical care was not binding 546, 551 (Tex.App.--San Antonio 1994, no upon the jury. -2- Barrajas v. VIA Metropolitan Transit Authority, 945 S.W.2d 207 (Tex. App., 1997) Moreover, VIA presented evidence that 472, 480 (Tex.App.--San Antonio contradicted Barrajas' need for future medical 1995)(Duncan, J., dissenting), modified on e treatment. The jury heard evidence that the other grounds, 920 S.W.2d 288 (Tex.1996), I ic impact in question was less than five miles do not agree with the majority that a jury is per hour, that Barrajas was the only never bound by a physician's uncontroverted Pr passenger injured, and that Barrajas' injuries expert testimony on past medical expenses. 1 were either non-existent or barely L. perceptible. Additionally, Santa Rosa In Peterson, the uncontradicted expert Hospital, where Barrajas was first treated, testimony established that "as a result of the a reported that Barrajas' x-rays indicated the accident, Ms. Peterson suffered an injury to lv each region examined was normal, and the her lower back and the lower back injury evidence showed that the emergency room would, at the very least, require a diagnostic Ve physician released Barrajas to work within surgical procedure (the discogram) to two days and with no work limitations. In determine whether corrective surgery would k light of this evidence, the jury could find that be required." Peterson, 908 S.W.2d at 481 er Dr. Hernandez' conclusions did not "comport (Duncan, J., dissenting). The uncontroverted with the jury's idea of sound logic." See expert testimony further established that a Cl McGuffin v. Terrell, 732 S.W.2d 425, 428 discogram would cost approximately $900. (Tex.App.--Fort Worth 1987, no writ). It is Id. at 482. In my view, therefore, the jury's ct not our place to substitute our judgment for finding of zero future medicals was not that of the jury. Novosad, 881 S.W.2d at 551. supported by factually sufficient evidence. Id. tri The jury was entitled to scrutinize the This case, however, is distinguishable is medical bills that Barrajas produced and from Peterson because here the experts D determine which bills and which future plainly disagreed on the extent to which Mr. medical expenses were connected to the bus Barrajas' injuries were caused by the accident. . Therefore, I join in the majority's opinion Co accident. The jury could also choose to be guided or not by the testimony on the amount insofar as it is based upon the controverted of nature of the experts' testimony as to the is extent of the injuries caused by the accident Page 210 and concur in the judgment. av damages. The jury's response to Barrajas' --------------- Tr claim for both past and future medical expenses was not so against the great weight 1 Both parties couch their arguments in terms y and preponderance of the evidence as to be of causation. In its brief, VIA argues that op manifestly unjust. Based upon the damages Barrajas' affidavits did not establish that the that the jury awarded, we do not find any accident caused $6,639.15 worth of damages. However, we view the issue presented as a c evidence that the jury's actions were based on bias or prejudice against Barrajas. Barrajas' question concerning the extent of Barrajas' l injuries and not one of causation since the ia points of error are overruled. jury's award of damages necessarily implies fic Accordingly, the judgment of the trial that it found a causal nexus between the court is affirmed. accident and Barrajas' injuries. See Morgan v. of Compugraphic Corp., 675 S.W.2d 729, 731-32 DUNCAN, Justice, concurring. (Tex.1984) (listing two forms of causation Un that plaintiff must prove: (1) causal nexus For the reasons set forth in my dissent