livingston for the defense of pouncing on it airlines and the air serv corporation in this personal injury case of writing arising out of the claim that the plaintiff was dropped while being transferred speaking with please put yourself on mute and hopefully we can get this resolved so we can hear you well let's try again of that three million eight hundred thousand dollars judgment in fact ninety four percent of that is for non economic damages i'm going to try to cover in the short time two issues the st is whether the evidence a medical causation is issues i think to go ahead start with the medical causation issue the plaintiff has a couple of problems here the st one is that all ten has a complicated and a pretty significant profile of preexisting conditions it raises a very question that i want somebody to tell me about based on what their record shows what is bigger much in this record what is it and what's the evidence there was no normally it is something that mars the physical beauty there was a symmetry of the physical appearance here and there actually wasn't any testimony about that normally is evidence of scarring or something like that there was not actually a testimony about scarring other than  fulton's testimony that she had a significant scar from her cervical fusion surgery that was four years prior to this united airlines flights are there any pictures in there are there are not photos in the record except her arthroscopic surgery and those are at the tail end of the plaintiff's exhibits but those are taken inside the shoulder and under texas approach to just figure meant  they're not going they should count that's not the way the jewelry was was charged under the definition of disfigurement and you want to talk about create this thing medical that's correct so we've got a you  the p j c talks about an option to charge a jury about preexisting conditions or are being asked to judge the jury and that it was not the p j c guidance actually says that if the negligence question itself uses the word injury instead of occurrence that it recommends that those extra instructions not be given and so neither side requests are free to argue that at the closing argument or act that's correct that's correct so so the problem really comes when we move over to texas case law that talks about the character of evidence is required for medical cause ation and under this court's decision or hamburger we do look to texas law about what that character of the evidence is and determining the legal sufficiency and the texts from courts been pretty clear that medical expert testimony is require if the causation is the yond the common knowledge or experience of lay persons and that usually occurs when you have a plaintive with preexisting conditions that have some relevance to the damages that are being sought preexisting condition so he didn't tackle had on a lot of her preexisting conditions and so there are two responses to your question one is that  some of his testimony is based on bolton's own narrative the other part of his testimony is that the end is that he tackles only whether it's a degenerative  some sort of acute injury and so what he doesn't know what he admits that he doesn't know is whether this was some blunt force trauma of some other acute injury and he certainly doesn't know when that might have happened  have a preexisting her preexisting conditions might not i but that ecl a cause under watson's view dr watson's view of it right my kind of caused the rotator cuff injury but they have a significant relationship to the damage that she saw which are that you know pain physical pain and mental anguish because she was already on round the clock prescription narcotic care for her various and serious you know debilitating conditions that are you know listed in our so they've got kind of this post hoc ergo propter hoc problem of fulton's own testimony they've got dr watson relying in significant part on her  recounting of events as part of his analysis and then there was without somebody who can testify about causation but if you sort of set aside you know the non retain  issues you know what's himself admits he can't say what caused it or when it was caused because of the passage of time and he never goes in and robots really what our expert had said which was that that seven months after the injury when you look at those arthroscopic photos which is what watson's relying on is what he sees inside when he does the surgery that a blunt force trauma injury or an acute injury and a degenerative andry would actually look the same that many months out i want to see if i can go ahead and and we need some sort of objective framework to analyze the excessiveness of damages the plaintiff has spent some effort in her brief to invoke what i would call the unique facts exception to the maximum recovery rule so i want to talk a little bit about the test for selecting analogous or benchmark cases for use as that objective frame of reference the task of the maximal recover rule for these benchmarks it's not absolute identity it's factual similarity and so the plaintiff's unique facts exception argument appears t exclude a case as a benchmark you know i think the other thing is that's where that the case it's addressed in the twenty eight chain letter the issue very versus jasc a seen ok is helpful in that case this court identified three case compared hers that it said met the factual similarity test and if you compare those cases and the facts about the injuries in those cases with the injury in the su very case itself you'll notice some differences nevertheless the court said they are similar enough to be used as benchmarks and it sends it back to the district or with instructions to use those cases as guide posts and you know the plaintiff in that case actually raise the fact exception is not mentioned in the opinion but it gets implicitly implicitly rejected and i think the lesson there is you know every case is going to be unique on some facts that you get to go to granular the flip side i think of the search for benchmark cases and not go too far afield of injury and cast the net too broadly and try just like to benchmark i think that's where fulton's brave goes astray a little bit when it dips into these nursing home cases and other health care liability cases around page forty three of her br you know in that pool of cases none of those that she identifies actually involved a shoulder injury i guess the report is similarity was that you know there was a negligent and drage is someone who had a frailty  but you know as so often happens in these nursing home cases and other health care liability cases these elderly or disabled claimants the facts in those cases leading to the injury actually involve  inflammatory facts the other problem is i'm not entirely sure of the plate of wants to go there on those cases because the texas legislature has passed down on health care in my ability flames economic damages two hundred and fifty thousand dollars and that's the public policy instead of taxes about the limits of those so you know i think it's a little bit of a risky gambit not just because of the caps with potentially submissions large non economic right not too hot not too cold just right avoiding the extremes and trying to find the common ground in selecting the benchmarks was then last couple minutes here talking in particular about some of the getting down in the weeds a little bit on some of the cases that both sides have cited i think the primary factor in terms of the nature of the injury is a rotator cuff terror's shoulder injury we've cited some of those cases in our opening brief page thirty nine to forty the plaintiffs cited an intentional injury case that did not involve a shoulder injury at all it was a traumatic brain injury case that's their  we step back just a little bit and we think about the maximum recovery rule and some of the purposes for it you know i think in the old days we used to think in valuing cases for purposes of settlement  and just advising a client you know we do sort of a three times medicals formula if the facts were really of stream of the plaintiff was extremely sympathetic maybe maybe a five times but here if we just assume that what the jury awarded in past medicals is is the right number we're way over thirty times that amount so i just think it's beyond the typical multipliers and we end up being too far afield for the purposes of the sports maxim recovery rule jurisprudence also is it appropriate for to and the jury to have taken into account the fact that she had to sit with this injury so long on the plane with no one noticing that she had been injured that and that it contributed to that in the fact that she has she's always going to have both for the past in the future certainly we're not suggesting that her in our excessive in this challenge we're not suggesting that her damage or be zeroed out and we have not challenged as a stand alone challenge the handsome award of physical impairment which goes to your part of your question about that she will never be one hundred percent even for the physical pain and mental anguish in order not suggesting that the zeroed out were suggesting that we use objective benchmarks to consistent with this course maxim whatever religious prudence to guy that just report on it remember tour of that amount to bring it within an appropriate range and you know the flight itself was was twenty five minutes your point is as well take it now or the issues about how long it took her to get some care  penny nicholson and i'm here today representing the apple e walton i want to answer some of the questions that the panel has already presented in terms of past disfigurement the evidence was there were some small poke holes and related to the surgery and also there was bruising and swelling of her other tator cuff injury and the law in both texas and the circuit is that treating physicians are allowed to testify as to causation and that that's what he did the law is also bad treating physician is entitled to rely on the history as provided to him by his patient and based on her medical records is so dr watson was completely competent to provide that consultation testimony and he did it given the clear nature of that testimony  appellant said well that's just its edicts that but that's not true either because he went on for pages and pages describing why he concluded that the ro by degeneration is characterized by fraying and it's very thin and when you look at it a rotator cuff tear that's caused by trauma is when you look at  what that meant is that the doctor that had been relying on dr finck all he's not an expert he's someone she saw he thought well you know i think this is just caused by radiating pain things that dr people had said was that surgery is not going to do her any good she's not going to feel any better at the surgery it's radiating from her spine radiating from her neck but what happened was that after the surgery she'd been in screw she having pain for seven months before the surgery and she began to get better in terms of her pain after the surgery so there you can see as evidence of causation and she didn't get all the way better she still has pain she still has limitations but for the st time she had some really  arms before the accident and that she had no pain the day before the accident well after that's not necessarily a hostile question but is that is the evidence in the records from miss fulton and her caretaker that she had full use before the accident but no not all use after the accident is that yes oh yes that's definitely because her arms were in good shape that she had to use that as she was confined to a wheelchair she had to use her arms and that's one of the reasons why this case is so different from other cases when you have a  person or a person even just a person who had the use of their other three limbs it would not be anywhere near as traumatic an injury but for her she basically lost the use of three and was only left with one and that was her not dominant arm so she lost her mobility she lost her independence and it was a way worse injury than it would be like in the typical rotator  cases that the appellant site it's just not comparable there nothing ally she's a much worse situation than those people are actually in terms of comparable cases in the actually the the rehabilitation hospital of austin versus cooper case now that is a case about from a nursing home but the woman  injured when she was being moved from her bed to a wheelchair and the injury was she had two of she got two broken legs and that and so the there is a different nature of the injury in that sense but both plaintiffs suffered excruciating pain and in addition to that they were both people who had very circumscribed lives to start with and much and that would be adjusted to deal with inflation today about two million dollars and the court came back and said no that's not right you know what you did to this woman is you took away what little what little hope an independent she had and the small things that she enjoyed that if someone else had them taken away it wouldn't be that big a deal but for this plaintiff it is a big deal and that's really the same kind of situation that mrs bolton is in on it we're not saying it's exactly analogous but we think it's the most analogous because know the recovery is limited to one hundred and fifty percent of the highest comparable case but they're just not a comparable case here in fact i'd say that if the uniqueness exception doesn't apply here it when it doesn't really  true as the appellant to pointed out that most of the time there are analogous cases but there isn't here and there are cases that have applied to the  in a hearing or something where he consider what he thought was comparable or why he did what he did i just a should know that and i just don't i don't believe that he did i think that his written orders move by saying that it's insufficient in any way i'm just wondering because obviously he's a very experienced texas in federal judge with plaintiff personal injury  cases ok thank you the other thing about mention of passion and prejudice i don't think that that's where this jury was going at all and the basis for that is all these notes that they sent out and think that this was a very conscientious jury before they were the deliberations had barely started when they said oh there's some typos here about i think it had to do with  because it's not even included in the note but they were really laser focused on what they were being asked they sent out i think three questions relating to please define the damages for us if there was not a mental anguish definition in the  jury charge originally were the court's instructions originally and so they said can you help us and give us a definition him by removing the parties they did they also asked about what does this figure meant me  they asked about physical impairment so they were barry focused on getting this right they deliberated over two days there were three questions but they had more stock parts but this was a very conscientious jury kind of jury you want that does want instruction so i don't think it was the result of passion or prejudice and as a number of cases no different juries evaluate these very subjective so they were applying a reasoned analysis of the questions and you know i think they were trying to answer them to the best of their ability to be streamlined conscientious remind us how these numbers in terms of the bicep chair i think that it's just speculation about whether these other injuries these other cases involve bicep tears but i was just still think that really needs to be viewed in the larger picture of what kind of but effect this had on miss fulton and as opposed to some of these more picky details because there was very strong evidence in the record of her pain and her disability her caretaker testified and she testified that the pain was just excruciating bet this was a woman who was used to pay she had this  degenerative a spinal injury so she was used to coping with pain but the shoulder injury the rotator but turned out to be a full thickness rotator cuff tear took the pain to a whole new level of both another indicator of how traumatic that this was for her is that mr margolis saw her right before she left and helped her get on got to the airport and saw a right when she came back and she was immediately saw that something terrible had happened it was like a different person had come and she's noted that that mrs fulton had worked very hard  to be as strong as she could be and healthy as she could be so she could be as independent as she could be and all that was basically taken away from her by this accident she misses to margo described her as having been emotionally devastated by everything that happened to her and another indication of how painful this all was with the only reason to get this surgery or the main reason to get it is to alleviate pain her pain was so great that she went to and it was not easy her for her to do things like this she went to all the trouble to get the surgery she had to go through a number of doctors who are basically saying  don't bother us with this kids just your back and then she finally took down one that took her seriously and it turned out he was right even their own expert had to admit that he was right about it being a full thickness from tater cuts here no he did not agree with dr watson he more generally a so and to get this she had just gotten one of the reasons why it occurred seven months later where she had to go through all kinds watson testified that she will need additional rotator cuff surgery in all an all reasonable medical probability and that's because partly because of how much she has to use her arms because a she has only moves around and navigates by wheelchair and also he said rotator cuff surgeries generally don't last forever and they basically wear out over time  and we ask that the court affirmed the judgment thank you very much make a few quick points john roger you asked us about closing argument no specific amounts were listed for the jury during closing argument by plaintiff there was an elmo on the counsel is talking about how much ought to be awarded for the non economic fortunes of the damages elements that were being submitted to the jury as the same passage in which the send a message to the corporation if you want the message to the corporation to go high this person to this person to this person that the amount you award needs to be several you know i multiplier of the amount that is otherwise necessary to fairly know i guess it gives music pas about whether her compensatory damages are somehow with the six and i have times sort of the best day between the final pretrial conference and closing argument  percent of loss of enjoyment of life and there was a lot of testimony about that that all goes under physical impairment there's a footnote and one gory opinion out of this court from twenty nine the jury was left with insufficient guidance about how does her man you know what her level of physical pain and mental anguish is and that's the biggest force in that non economic damages or it's the three million dollars between the past and the future and you know that's not being his just means of not being enough under texas law and that's why that you know is important in this case know you know the pain and mental anguish from having to do that would go into that three million dollars it was one million dollars for future the inconvenience and diminishment goes into the physical  two so i guess i lost like really got about to do with the caution that we ought to use about picking sort of an outlier or picking cases that are quite actually similar i do think that the maximum recovery rule allows for a court to make some calibrations and some adjustment once it finds a case that involves a factually similar injury and again i think that's where there's a role here for that physical paramount award who we don't have a standalone damage to the five hundred and twenty five thousand dollars physical impairment a war that covers loss of enjoyment of life and diminished visible capacity or physical you know your functionality and things like that thank you we have your arguments we appreciate you all both appearing by soon today so we could hear from from you in your case in the cases submit it thank you