TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO.03-02-00069-CV

Mary Ann Roberts, Appellant

v.

Jan Ogletree, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT

NO. GN001414, HONORABLE JON N. WISSER, JUDGE PRESIDING

Appellant Mary Ann Roberts appeals from a trial-court judgment based on a jury=s verdict 

in a vehicular accident case. The jury awarded Roberts a fraction of her claim for past medical expenses 

but awarded no damages for past or future physical pain and mental anguish, past or future physical 

impairment, or future medical expenses. By one point of error, Roberts claims that the damages awarded 

her are against the great weight and preponderance of the evidence and are manifestly unjust. Because we 

find there is factually sufficient evidence to support the jury=s findings, we affirm the judgment.
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FACTUAL BACKGROUND

Roberts filed suit on May 15, 2000, against Jan Ogletree for damages arising out of an 

automobile collision on July 23, 1998. Ogletree rear-ended Roberts as she waited at a red traffic light. It 

was a low-speed collision, and pictures taken of the two cars after the accident reveal little visible damage.

Ogletree had come to a stop behind Roberts=s car at the intersection; however, his foot 

slipped off the brake and he rolled into Roberts=s car before he could hit the brake again. Roberts got out 

of her car and spoke briefly to Ogletree but he left before Roberts could call the police to make a report. 

Roberts returned home and called the sheriff=s department from there. Roberts admitted that she was not 

even sure her car moved forward when Ogletree hit her. She further testified that she stayed home from 

work the day of the collision in part because she was upset at being treated rudely by Ogletree at the scene.

While waiting for the sheriff=s department to arrive at her home, Roberts reported that she 

started getting a bad headache. That afternoon she went to see her family practitioner, Dr. Berry. Dr. 

Berry took an x-ray of her neck, but the results were not admitted into evidence. Dr. Berry eventually 

referred Roberts to Dr. Harris, a spine specialist. Roberts first saw Dr. Harris on October 2, 1998. Dr. 

Harris prescribed physical therapy two to three times a week, which Roberts continues to receive. In 

addition, every four to six weeks for approximately a year after the collision, Roberts received various 

injections from Dr. Harris for her pain. In November 1998, Roberts had an MRI; however, the results did 

not change Dr. Harris=s recommendations.

Roberts admitted that after seeing her physician on the day of the collision she did not go 

back for three weeks. At this second visit, Dr. Berry noted that Roberts=s neck was better and she had 
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regained full range of motion. Roberts further admitted that she was referred to Dr. Harris nearly two and a 

half months after the collision for back pain related to a pregnancy injury, not for the neck pain or headaches 

which were the basis of this lawsuit. In addition, another doctor to whom she was referred by Dr. Harris 

found no neurological problems.

On November 3, 1999, Roberts broadsided a car that had pulled out in front of her. 

Roberts testified that she was traveling about thirty miles per hour when she hit the other car, causing 

substantial damage to her car. Roberts said that her pain increased for several weeks after this second 

accident but eventually dissipated, leaving only the pain she had experienced after the July 1998 collision. 

In February 2000, Dr. Wasserburger, another spine specialist assumed treatment of 

Roberts. Roberts underwent numerous diagnostic tests (some of which were painful) to identify the source 

of her neck pain and headaches. According to Dr. Wasserburger, Roberts=s neck was slightly pulled 

forward and she had a lot of tightness in the muscles on the left side of her neck. The MRI done in 1998 

showed only normal degenerative (wear and tear) changes. In 2000, Roberts had another MRI which 

showed osteophytesCbone spurs on the spine. Osteophytes are common wear and tear changes which 

might be expected as result of the degenerative changes shown in the 1998 MRI. Dr. Wasserburger 

admitted that no diagnostic test has pinpointed the cause of Roberts=s neck pain but the osteophytes could 

be a possible explanation for her pain. In 2001, Roberts finally had surgery to fuse her third and fourth 

vertebra. Roberts=s surgery reduced her headaches but the pain in the left side of her neck was still present 

at the time of trial.
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DISCUSSION

Roberts argues that the jury=s answers to the six parts of Question No. 2 are against the 

great weight and preponderance of the evidence and are manifestly unjust. Question No. 2 and the 

attendant pertinent instructions, as well as the jury=s answer to each part, are listed below:

What sum of money, if paid now in cash, would fairly and reasonably compensate Mary 

Ann Roberts for her injuries, if any, that resulted from the occurrence in question?

Do not include any amount for any condition not resulting from the occurrence in 

question.

a. Physical pain and mental anguish in the past: $ -0-

b. Physical pain and mental anguish which in reasonable probability

will be sustained in the future: $ -0-

c. Physical impairment sustained in the past: $ -0-

d. Physical impairment that, in reasonable probability, will be

sustained in the future: $ -0-

e. Reasonable and necessary medical care in the past: $ 1,322

f. Reasonable and necessary medical care that, in reasonable

probability will be sustained in the future: $ -0-

The court rendered judgment on the verdict that Roberts recover $1,322.00 plus interest 

and court costs. Roberts=s motion for new trial complaining of factual insufficiency to support the jury=s 

answers was overruled by operation of law. 
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In considering a challenge that the verdict is against the great weight and preponderance of 

the evidence, we must weigh all the evidence; we will set aside the verdict only if it is so contrary to the 

overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 

176 (Tex. 1986); In re King=s Estate, 244 S.W.2d 660, 661 (Tex. 1951). The jury=s findings are entitled 

to great deference and will not be reversed unless the record indicates the jury was influenced by passion, 

prejudice, improper motive, or something other than conscientious conviction. Herbert v. Herbert, 754 

S.W.2d 141, 143 (Tex. 1998). A jury=s failure to find a fact need not be supported by affirmative 

evidence, but the jury cannot refuse to find a fact in the face of overwhelming evidence of the existence of 

the fact. Russell v. Hankerson, 771 S.W.2d 650, 653 (Tex. App.CCorpus Christi 1989, writ denied). 

We are mindful that the jury must determine the credibility of the witnesses and the weight to be given their 

testimony. Leyva v. Pacheco, 358 S.W.2d 547, 549 (Tex. 1962). The jury may believe one witness and 

disbelieve another and resolve inconsistencies in any witness=s testimony. McGalliard v. Kuhlmann, 722 

S.W.2d 694, 697 (Tex. 1986). We cannot substitute our judgment for the jury=s merely because we would 

have weighed the evidence differently or reached another conclusion. Cropper v. Caterpillar Tractor 

Co., 754 S.W.2d 646, 651 (Tex. 1988); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). 

Much of Roberts=s direct testimony was contradicted by her testimony on crossexamination. On direct examination, Roberts testified at length about having to change jobs because her 

neck pain prevented her from working the long hours in overtime necessary at the position she held prior to 

the accident. Roberts testified that she worried about having to change jobs because she felt it would 

diminish her chances of advancing her career. In addition, her family is dependent on her paycheck. On 
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cross-examination she admitted that her salary at her new job is almost $10,000 per year more than her old 

salary and she works fewer hours. Further, Roberts testified that she had never filed a personal injury 

lawsuit before the present one. However, when presented with the petition and pleadings from a personal 

injury suit she had filed in 1995, Roberts testified that she had forgotten about it. Roberts=s inconsistencies 

may have diminished her credibility and thus the jury may not have felt inclined to believe her testimony that 

the July 1998 collision was the cause of her reported headaches and neck pain.

The jury was free to disbelieve, and apparently did disbelieve, Dr. Wasserburger=s opinion 

that the treatment received by Roberts was necessary and due to injury sustained in the 1998 collision. 

Uncontradicted testimony of expert witnesses must be taken as true insofar as it establishes facts; but 

opinions about deductions from those facts are not binding on the jury. See Gregory v. Texas Employers 

Ins. Ass=n, 530 S.W.2d 105, 107 (Tex. 1975). Dr. Wasserburger did not even meet Roberts until a year 

and a half after Roberts=s collision with Ogletree; the doctor testified that she relied on other doctors= notes 

to inform her about Roberts=s medical history after the July 1998 collision. The jury could have found that 

Dr. Wasserburger was too far removed from Roberts=s medical care following the July 1998 collision to 

accord her testimony much weight. Further, Dr. Wasserburger=s inability to correlate Roberts=s subjective 

complaints with objective diagnostic test results left the jurors free to draw their own conclusions about the 

cause and extent of Roberts=s pain, if any. 
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The jury generally has great discretion in considering evidence on the issue of damages. 

McGalliard, 722 S.W.2d at 697. When uncontroverted, objective evidence of an injury is presented and 

the causation of the injury has been established, courts are more likely to overturn jury findings of no 

damages for past physical pain and impairment. Morse v. Delgado, 975 S.W.2d 378, 381 (Tex. 

App.CWaco 1998, no pet.); Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801, 805 (Tex. 

App.CDallas 1988, no writ). On the other hand, the jury may properly award zero or nominal damages 

where there is both subjective and objective evidence of injury so long as the main indicia of the injuries are 

subjective in nature. Lamb v. Franklin, 976 S.W.2d 339, 341 (Tex. App.CAmarillo 1998, no pet.); see 

Morse, 975 S.W.2d at 381; Sanchez v. King, 932 S.W.2d 177, 181-82 (Tex. App.CEl Paso 1996, no 

writ); Hammett v. Zimmerman, 804 S.W.2d 663, 666 (Tex. App.CFort Worth 1991, no writ); Blizzard,

756 S.W.2d at 806.

All of Roberts=s diagnoses were based on her subjective complaints. Objective diagnostic 

tests did not reveal any abnormalities that correlated to the neck pain and headaches she described. 

Roberts initially went to her family doctor who recorded that she suffered from a limited range of motion and 

pain, as reported by Roberts. The range of motion returned to normal but Roberts still reported headaches 

and neck pain. Roberts underwent numerous diagnostic tests, including two MRIs and an EMG, but none 

of these test results explained Roberts=s pain. Roberts=s doctors had to rely on her descriptions of the pain, 

but no test revealed a physical explanation for the pain Roberts described. Thus, the existence and extent of 

Roberts=s pain was based solely on Roberts=s own reports.
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The jury=s award of zero damages for past and future physical impairment, past and future 

physical pain and mental anguish, and future medical bills is not inconsistent with its award of past medical 

costs. The jury could easily have inferred that Roberts did not suffer any injury but that it was reasonable 

for Roberts to see a doctor and have an MRI taken to determine if she had received an injury. Question 

No. 1 posed to the jury was simply, ADid the negligence, if any, of Jan Ogletree proximately cause the 

occurrence in question?@ The jury was not asked whether Ogletree proximately caused the injuries in 

question. The jury=s answer to Question No. 1 only constitutes a finding that Ogletree=s negligence 

proximately caused the collision. It was Roberts=s burden to prove not only that Ogletree=s negligence 

caused the collision, but also that the collision caused Roberts=s neck pain and headaches. Roberts failed to 

carry that burden. 

The jury was also entitled to believe that Roberts=s complaints were the result of other 

unrelated conditions or injuries. Biggs v. GSC Enters., Inc., 8 S.W.3d 765, 768-69 (Tex. App.CFort 

Worth 1999, no pet.); Campos v. Saide Co., 957 S.W.2d 168, 169 (Tex. App.CSan Antonio 1997, no 

pet.); Hilland v. Arnold, 856 S.W.2d 240, 242-43 (Tex. App.CTexarkana 1993, no writ). The jury 

could have reasonably believed that Roberts=s subjective pain was stress-induced, or was a result of the 

ongoing back problem Roberts developed during a previous pregnancy or Roberts=s second car accident. 

Complaints of nagging neck pain and headache do not figure prominently in the medical records until months 

after the July 1998 collision. Also, Roberts=s second car accident was more serious than the first, and 

Roberts=s doctors visits and medical costs increased markedly after the second car accident. Based on the 
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testimony at trial, the jury could have reasonably drawn the conclusion that Roberts=s pain was not a result 

of the July 1998 collision but was perhaps the result of other, unrelated events.

CONCLUSION

Considering all the evidence in the record, we conclude that the jury=s findings are not 

against the great weight of the evidence and are not manifestly unjust. We affirm the trial court=s judgment.

 

David Puryear, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: October 31, 2002

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