On appeal, Barrios does not argue that he established any damages for mental anguish. 1

The jury was asked to determine the "sum of money, if paid now in cash, [that] would fairly and 2

reasonably compensate Lizandro Barrios for his injury, if any, that resulted from the occurrence in question"

for past and future "[p]hysical pain and mental anguish."

NUMBER 13-07-00469-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

LIZANDRO BARRIOS, Appellant,

v.

KING FISHER MARINE SERVICE, L.P., Appellee.

 

On appeal from the 197th District Court 

of Cameron County, Texas.

 

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Garza

Memorandum Opinion by Justice Yañez

Appellant, Lizandro Barrios, sued his employer, appellee King Fisher Marine

Service, L.P. ("King Fisher"), for an injury he sustained while working on a dredging vessel.

The jury awarded Barrios $130,000 for past medical expenses. It awarded zero damages,

however, for physical pain and mental anguish. By one issue, Barrios contends that the 1

jury's finding of no damages for "pain and suffering" was factually insufficient. We affirm. 2
 The issue of whether Barrios fractured his wrist was contested at trial. However, at trial, Barrios 3

chose to not submit the issue of the wrist injury to the jury.

2

I. BACKGROUND

Barrios worked for King Fisher as a boatman on the Shamrock, a dredging vessel.

As a boatman, Barrios's duties included, among other things, rigging lines, securing barges

to the Shamrock, and unloading barges. On February 19, 2005, Barrios reported that he

injured his left wrist. Barrios went to the Valley Day and Night Clinic (the "Clinic") in

Brownsville, Texas, and a cast was placed on his left arm. Barrios returned to work 3

wearing the cast with instructions that he was to "return to light duty."

On March 10, 2005, Barrios reported that he had fallen while walking down the

stairs on the Shamrock and injured his left side. According to Barrios, when he fell, he hit

his head, arm, and shoulder. After receiving treatment at the Clinic, Barrios began seeing

an orthopedic surgeon, Guillermo Pechero, M.D. Eventually, Dr. Pechero concluded that

Barrios had a tear in the annular ligament covering the disc in the C5-C6 level of his neck

and performed surgery on the area.

Barrios sued King Fisher for negligence. The trial court submitted liability questions

on negligence for the March 10 incident; however, Barrios waived submission of an issue

regarding the February 19 incident. The jury found that Barrios and King Fisher were each

fifty percent negligent. The jury awarded past medical expenses of $130,000 to Barrios;

however, the jury found zero damages for future medical care and past and future physical

pain, mental anguish, loss of earning capacity, disfigurement, and physical impairment.

Barrios filed a motion for new trial, which the trial court denied. This appeal ensued.

II. THE EVIDENCE

Barrios testified that x-rays revealed that he had fractured his wrist and that the

doctor ordered "very simple work" and restricted him from using his left hand. According

to Barrios, the "captain, the people in charge of the dredge" told him that he had to go back
 Tammy Boyd, the human resource manager for King Fisher, testified that after Barrios fell down the 4

stairs, he was being treated at the Clinic "for a sprained cervical area, which is the neck, and a sprained

shoulder." However, according to Boyd, Barrios ended the course of treatment with the Clinic when he

stopped showing up for his shift on March 17. Boyd stated that the physical therapy had not been "set up"

because Barrios did not return to work. Boyd stated that to her knowledge, Barrios had not undergone

physical therapy.

 Dr. Pechero explained that an MRI is a device utilizing large magnets that allows doctors to see 5

inside the patient's body.

3

to work and that he would be given "an easy job"; however, Barrios stated he was assigned

his former duties as a boatman. Barrios testified that as a boatman, he was told to move

the anchors and when he walked down the stairs to do so, he fell and was injured again.

Barrios stated that the stairs were wet and slippery.

Barrios testified that "they" ordered him to sit down for a while and "they" made a

report. Barrios went home to rest and then returned to work as scheduled. According to

Barrios, when he returned to work, he told "the people in charge" that he wanted to see a

doctor because he was "bruised where [he] had fallen." Barrios stated that his side hurt

because he hit his head, arm, and shoulder. Barrios sought treatment at the Clinic, where

a physician told him to go home, rest, and begin physical therapy. Eventually, Barrios 4

sought treatment from Dr. Pechero.

Dr. Pechero testified that he began seeing Barrios on March 22, 2005, and that

Barrios complained of pain in the neck and left shoulder. Barrios told Dr. Pechero that he

had injured his neck and left shoulder when he fell off a "ladder" while working as a

boatman for King Fisher. Dr. Pechero believed that the history provided by Barrios was

consistent with the injuries Barrios described. Dr. Pechero stated that he started Barrios

on physical therapy and pain medications. According to Dr. Pechero, Barrios continued

to complain of pain and that during the first six to ten months of treatment, Barrios did not

seem to be improving. Dr. Pechero was concerned because that meant that something

was "going on in his neck" and the treatment was not working.

Although Dr. Pechero recalled that an MRI had been performed on Barrios in April

of 2005, he did not recall the exact date or the results of the report. A second MRI was 5
 Dr. Pechero described that a bulging disc occurs when a ligament that normally holds the gelatinous 6

material of the disc is thinned out or has been torn.

 Dr. Pechero explained that a discogram is a procedure whereby a needle is used to inject dye into 7

the disc area to determine if there is a tear in the disc causing pain.

 Dr. Pechero stated that a torn disc means that "[t]he fibers that, that sustain the disc, that make up 8

the disc are torn, and the pain fibers in there in turn cause pain."

4

performed on June 1, 2005, allowing Dr. Pechero to view Barrios's neck and discern the

vertebral bodies, the discs, and spinal cord. Dr. Pechero opined that the MRI showed that

Barrios had a "[b]ulging disc at C5-C6 level." According to Dr. Pechero, a bulging disc can 6

be a problem and can cause pain in the neck.

After hearing Barrios describe pain in his neck and down his left arm and decreased

sensation and weakness in the left arm, Dr. Pechero became concerned that the clinical

examination was not consistent with the MRI. Dr. Pechero stated that he suspected that

something was irritating the nerve and that "[t]here was a progressive problem that wasn't

resolving itself," so he ordered a discogram. According to Dr. Pechero, the discogram

7

revealed that Barrios had a torn disc and that he was having pain.8

During cross-examination, the following colloquy occurred:

[King Fisher's counsel]: Now in these discograms that you've looked at,

in the majority of them, if not all of them, you

understand that they'll do what they call a

Marcaine challenge?

[Dr. Pechero]: Yes.

[King Fisher's counsel]: Can you tell us what a Marcaine challenge is?

[Dr. Pechero]: Well, to see how the patient reacts, we just inject

a numbing medication.

[King Fisher's counsel]: Okay. So first you might provoke pain in a

certain disc area, right?

[Dr. Pechero]: Correct.

[King Fisher's counsel]: And then in order to make sure that the

response is an accurate response, you'll then

inject a pain relief medication into the same

area, right?

[Dr. Pechero]: Well, they usually inject a dye. I'm not real
 Dr. Pechero explained that CT and CAT scans are "x-rays that are taken using the same way you 9

take conventional x-rays, but done at cross-sectional cuts, much thinner."

5

familiar with how each one of them do it. It may

be a little different.

[King Fisher's counsel]: But the Marcaine challenge assists the doctor

performing the discogram in making sure that the

pain response is a truthful pain response, right?

[Dr. Pechero]: Correct.

[King Fisher's counsel]: Because this is a provocation test, where you're

relying upon the subjective complaints of the

patient, right?

[Dr. Pechero]: I think part of it is. The other part is objective.

[King Fisher's counsel]: Okay. But there is a portion of it where you

inject dye into a disc area in an effort to provoke

pain, and if it does provoke pain then the patient

is relied upon to say, 'Yes, I'm experiencing

pain,' or 'No, I'm not,' correct?

[Dr. Pechero]: Correct.

[King Fisher's counsel]: And then to test whether that was a correct

response they'll also inject, then, the Marcaine,

which is a pain reliever, that should eliminate

that pain, right?

[Dr. Pechero]: Correct.

[King Fisher's counsel]: And so that's how you—that's one way that the

doctor doing the test can understand with some

greater degree of certainty whether the result of

the patient complaining about having pain was a

correct response, right?

[Dr. Pechero]: Correct.

Dr. Pechero agreed that no Marcaine challenge was performed on Barrios and that no

other test was performed to establish the accuracy of the discogram. When King Fisher's

counsel asked, "[The doctor performing the] discogram . . . relie[d] solely upon [Barrios]

stating that he was feeling and experiencing pain in a particular area after the injection?",

Dr. Pechero responded, "Correct."

A CT scan of Barrios's neck was taken after the discogram was performed. Dr.

9
6

Pechero opined that the CT scan showed leakage of the dye in the middle neck in the C5-

C6 level discs. Dr. Pechero explained that the dye leaking out of the disc meant that there

was a tear. Dr. Pechero then performed surgery to remove the affected disc. Dr. Pechero

stated:

The disc is removed all the way toward the back. There's a space that is left

in. That's replaced with a bone of appropriate height and width. Once the

bone is placed in there, the plate is placed on front to secure the bone graft

and the plate is held with the screws.

Dr. Pechero testified that although the bone placed in Barrios's neck has not completely

healed, Barrios has no more pain and "[n]eurologically, the arm is back" with no weakness

or numbness.

On further cross-examination, Dr. Pechero clarified that although Barrios initially

complained of shoulder pain and physical therapy was prescribed, that injury "eventually

resolved itself" as early as April or June of 2005. Dr. Pechero answered "correct" to the

following questions asked by King Fisher's counsel: (1) "[T]here's a difference between

objective and subjective right?"; (2) "Subjective, you have to rely to a large extent upon that

which is told you by the patient, right?"; and (3) "Whereas objective is something in the

form of a diagnostic study that's not reliant upon the patient saying anything; it's there in

black and white?" Dr. Pechero also acknowledged that the June 1 MRI did not objectively

substantiate Barrios's subjective complaints of pain.

On cross-examination, Dr. Pechero testified that the bulge he saw on the June 1

MRI was a minimum to moderate bulge, that many people have minimal bulges at their C5-

C6 level, and that such bulges usually do not impinge upon the nerve roots. Dr. Pechero

clarified that although the bulge does not impinge on a nerve, the patient may still suffer

from radicular pain—that is, pain radiating down the arm. Dr. Pechero therefore opined

that the bulge in Barrios's disc, even if it did not directly impinge the nerve, could have still

caused radicular symptoms from other pathology, such as chemicals within the disc leaking

out, causing irritation to the nerve.

Dr. Pechero stated that it was possible that the injury he observed on the CT scan
7

could have occurred before the March 10 incident and that he relied on Barrios's

description of events to determine the cause of the injury. Dr. Pechero agreed that the CT

scan was the first objective diagnostic test that substantiated Barrios's complaints of pain.

Dr. Pechero testified he believed that Barrios had an annular tear with an intradiscal

dysfunction. Although Dr. Pechero stated that he observed the annular tear on the CT

scan, he stated that the intradiscal dysfunction was not seen on any of the tests performed

on Barrios. Dr. Pechero explained that an intradiscal dysfunction is diagnosed based on

clinical findings. King Fisher's counsel asked, "And by 'clinical findings' you're referring to

the patient's subjective complaints of pain and how he responds during examination,

right?", to which Dr. Pechero responded, "Correct."

Dr. Pechero recalled that an MRI had been performed on Barrios in April of 2005;

however, no report of the MRI was included in his records. After reviewing a report from

the doctor who performed the April 12 MRI, Dr. Pechero testified that the report stated it

was a "[n]ormal MRI of the cervical spine," and the report did not reference a bulge. Dr.

Pechero agreed with the report's findings that there was no bulge or abnormality shown on

the April 12 MRI.

Arnulfo R. Garza-Vale, M.D., a neurological surgeon, testified by videotape

deposition for King Fisher. Dr. Garza-Vale stated, "Neurosurgery is a subspecialty of

surgery that deals with the diagnosis and treatment of conditions of the brain and spine,"

including traumatic conditions, non-traumatic conditions, brain tumors, spinal tumors,

herniated discs in the neck and back, and the entire spinal column. According to Dr.

Garza-Vale, a person who has an injury to his or her spinal column can have symptoms

in other locations of the body "depending on what's affected. If it's a nerve, for example,

in the case of a herniated disc, you can have symptoms that radiate [down] the arm."

Dr. Garza-Vale performed an "independent medical examination" of Barrios on

January 31, 2006, and also reviewed the medical records and diagnostic studies performed

in this case. Dr. Garza-Vale stated that he reviewed an MRI of Barrios's left shoulder,
8

which he and the radiologist who performed the MRI concluded was normal. Dr. GarzaVale stated that the only thing he found objectively wrong with Barrios's left shoulder was

degenerative changes, which are caused by the course of time and the use of and wear

and tear of the shoulder. When Dr. Garza-Vale conducted his independent medical

examination of Barrios, Barrios indicated that he could not completely raise either his right

or left shoulders up—Barrios could only lift his left shoulder one hundred degrees and his

right shoulder about 120 degrees. However, Dr. Garza-Vale was unable to find anything

wrong with Barrios's left shoulder from the diagnostic studies that were performed.

Dr. Garza-Vale did not believe that Barrios's complaints of pain to his shoulder were

consistent with the March 11 incident. Dr. Garza-Vale explained that Barrios first

complained of shoulder pain after the February 11 incident when he injured his wrist.

Therefore, because Barrios had symptoms before the March 11 incident, Dr. Garza-Vale

was not convinced that Barrios was experiencing "referred" pain to the shoulder from the

neck. Dr. Garza-Vale testified that referred pain occurs, for example, when you have an

injury to your hand and the pain radiates from your hand to your neck or shoulder. Dr.

Garza-Vale did not believe that Barrios suffered any referred pain because "typically

referred pain is a neurological pattern" going from proximal to distal and does not usually

go from the distal to the proximal. Dr. Garza-Vale explained that 

most nerves have a tendency to cause pain in the distal direction, away from

say the neck down the shoulder to the hand. But it's unusual to have pain

from the hand back to the neck. There are cases of that type of referred

pain, because nerves do have interconnections that go back and forth, but

the more typical pain is from proximal to distal.

Dr. Garza-Vale testified that the type of injury Dr. Pechero diagnosed Barrios with

is an annular tear with an intradiscal dysfunction. Dr. Garza-Vale explained that

means that the annulus, which is the ligament that covers the disc material

here (indicating), so it's a ligament that is 360 degrees around, and its sort

of like a cover, like a wrapping for the center portion of the disc called the

nucleus. So when you say that this round structure, the annulus, is broken,

now the central portion of the disc or the nucleus can come out and

compress cord or nerve root, but you have to have this tear of the annular

ligament.

According to Dr. Garza-Vale, Barrios did not suffer an annular tear and nothing was being
 Dr. Garza-Vale stated that "[t]he clinical picture is set forth by the patient's subjective symptoms"; 10

therefore, he relies on the patient's truthfulness.

9

compressed. Dr. Garza-Vale stated,

This gentleman had numbness throughout the arm. He had weakness

throughout the arm. In fact, he gave very little effort in his examination. He

just really didn't do much of anything. And so there was really no clinical

exam that correlated with a herniated disc, an annular tear, compressed

nerve, none of those features that you normally see in a herniated disc

syndrome.

Dr. Garza-Vale testified that the clinical picture that he gathered from Barrios did not match

a diagnosis of an annular tear or a diagnosis requiring further treatment or surgery.10

Dr. Garza-Vale explained that Barrios complained of bilateral pain and not pain only

to the left arm, which does not correlate with herniated disc syndrome. Dr. Garza-Vale

stated that Barrios "gave minimal effort" during the exam and had a weak grip. Dr. GarzaVale testified that there was no reasonable explanation for Barrios's weak grip. According

to Dr. Garza-Vale, that raises a "big red flag" that Barrios was "putting on symptoms that

[were not] there." Dr. Garza-Vale said that Barrios would not raise his arms above

shoulder level and that meant Barrios was not giving any effort. Dr. Garza-Vale stated,

"This gentleman had—had—he was well muscled, let's put it that way. He did not have tiny

arms. And a fellow that's that well muscled that can't raise his arms up, that's pretty

remarkable." According to Dr. Garza-Vale, that symptom was inconsistent with a herniated

disc, and if Barrios had a problem at the C5 or C6 level, "he would have had comfort by

lifting his arms up."

Dr. Garza-Vale opined that if a patient had a problem with the C5-C6, over time, one

would see atrophy of the muscles—the biceps would become weaker and would shrink.

However, in Barrios's case, Dr. Garza-Vale observed that Barrios's right and left muscles

were identical and there was no atrophy. Dr. Garza-Vale believed this meant that the

nerves were working fine on both sides. Dr. Garza-Vale said that he tested Barrios's

reflexes, which "basically test[s] the same nerve not once but really three or four times" for

sensation, motor function, reflex function, and for "any signs that the nerve is—is
10

compressed and you can't stretch that nerve." Dr. Garza-Vale stated that Barrios's reflexes

were normal, which did not correlate with Barrios's complaints of numbness, and the size

of his arm. On re-direct examination, Dr. Garza-Vale stated,

There was nothing that indicated a disruption of the annular ligament. On

the contrary, [Barrios] had pain only when he flexed his neck and not when

he extended his neck, which is just the opposite of—of a typical herniated

disc syndrome. They get pain going back, not forward. . . . He had initially

normal exams times two from his own treating doctor. And then suddenly,

all of a sudden he now has an abnormal exam. The doctor lists

abnormalities in certain muscle groups, but doesn't say if they're right side

or left side, doesn't say to what degree. We normally see weakness, for

example from zero to five. So if someone has weakness, you say four [over]

five, three over five, two over five or zero over five if they can't move at all.

But—but you specify, and then you put down it's left side or right side. He

just says there's weakness in the muscles blah, blah, blah, but doesn't say

where, which ones.

According to Dr. Garza-Vale, an annular tear is recognized by neurosurgeons as a

proper diagnosis; however, an annular tear can be seen in an MRI and will typically

correlate with appropriate clinical symptoms. Dr. Garza-Vale testified that the clinical

picture must correlate with the diagnostic studies and that a doctor must review them both.

Dr. Garza-Vale explained:

The reason you look at both is because they should correlate very closely.

If you have an annular tear, the annular tear typically will be lateralized to the

left or to the right. And so the patient should have symptoms therefore that

go to the left if the annular tear is on the left. If there's compression of nerve

on the left, you should therefore get symptoms on the left. And the

symptoms should go in the appropriate location, say C6 to the thumb, or at

least to the biceps area. It may not have to radiate all the way to—to the

thumb, but it should have very specific correlation.

Dr. Garza-Vale stated that he did not see an annular tear on the April 12 MRI

studies performed on Barrios. When asked what he found abnormal on the June 1 MRI

studies, Dr. Garza-Vale stated, "Nothing. There's the tiniest little bulge there. I would

admit it just bulges ever so slightly, but that's normal. Most people if you look at their MRIs

and look hard enough, you're going to see a bulge. . . . It's quite common to see a bulge

on normal asymptomatic people." Dr. Garza-Vale stated that he would not have performed

surgery on the bulge seen in the MRI. Dr. Garza-Vale opined that a doctor must be able

to separate a normal bulge from a pathologic abnormality. He stated, "The difference
 On cross-examination, Dr. Garza-Vale agreed that some annular tears would not be seen on the 11

MRIs taken in this case because of the quality of the image.

11

between the two is you need to see nerve compression, not a tiny bulge. If you go after

that, you might as well start operating on everybody, just line them up."11

Dr. Garza-Vale explained the discogram procedure as follows:

A discogram is a study where a needle is positioned into the disc, usually

with the patient in—in a supine position. So, in other words, he's laying down

on a table. And you're basically putting your hands here (indicating[)], and

moving the trachea and esophagus to one side as you put a needle on the

opposite side. You're basically trying to get the esophagus out of the way,

so you're going at an angle. Once you have localized the needle in the

appropriate place or discs that you want to study, you then inject them with

an iodine containing material. And the idea is to see if—if the ligaments, the

annular ligaments that we say cover that central portion of the disc have a

tear and produce a leak. So you'll see the dye go through the annular tear

and typically go again to one side or the other, but not centrally.

. . . 

You sometimes can get the dye to trail where you had the needle and so

you'll—you'll get dye to come out, but its coming anterior (indicating), this

way, instead of posterior. The tears we are looking for are posterior.

. . . 

You're injecting an iodine-containing material into the disc space under

pressure and then seeing does the patient get reproduction of symptoms, for

example, does he get relief of symptoms if you inject an anesthetic there,

and do you get extravasation of dye where the dye has come out through a

tear such that it lateralizes to the right or to the left consistent with the clinical

symptoms, left arm pain, right arm pain.

. . . 

In a normal discogram . . . . [t]he—the liquid would be contained just

centrally. It tends to get near the edge however, the posterior edge.

Depending on your age, it tends to get closer and closer to the posterior

edge because the annulus is thinnest on the back wall.

Dr. Garza-Vale testified that the North American Spine Association stated in its

journal that it did not recommend cervical discograms such as the one performed on

Barrios. That association only recommended lumbar discograms. But in either case, it

recommended against a discogram if the patient had a normal MRI. Dr. Garza-Vale

explained:
12

The difference [between a lumbar discogram and a cervical discogram] is

that you really don't have a spinal cord down in the lower end of the spinal

canal, so it's a lot safer to do a [lumbar] discogram. If it leaks, it leaks. It's

not going—going to harm the spinal cord. There is no spinal cord there. But

in the neck you have some very important venous structures that can

connect the disc to the venous circulation of the cord, and hence, you can

get the dye—if you inject it hard enough, you can get it into the cord. And

when you do that, you damage the cord.

Dr. Garza-Vale testified that he would never have recommended a cervical discogram for

Barrios.

Dr. Garza-Vale believed the discogram has several problems. First, there are many

false positive and negative results; and therefore, it is not a very reliable test. "The

discogram is reliant upon, first of all, the patient telling you, yes, I feel pain. Well,

sometimes you have a patient say ouch at every level. Sometimes he'll say, well, I don't

feel anything. So it just—there's too much variability and too little reproducibility to make

it a truly objective examination." Next, typically, as people age, discs become more porous

and leak, and that leak, according to Dr. Garza-Vale, means nothing. According to Dr.

Garza-Vale, a Marcaine Challenge may be performed to increase a discogram's reliability.

It is

a local anesthetic that is used, first of all, to determine if the patient says, oh,

that reproduced my symptoms when you inject [the dye] and put pressure on

that annulus by pushing on that syringe. You then take that syringe out,

change it and put in Marcaine, which is a local anesthetic, and should reduce

the pain from the annular tear when you inject the anesthetic. And the

patient would say, my pain is gone; I feel much better. It's a confirmation

that that is an abnormal disc and that it is the appropriate location of the

source of that person's pain.

Dr. Garza-Vale opined that if the patient continues to complain of pain, then the pain is not

in that location, the pain is from another source, or it is psychogenic. The fact that a

Marcaine challenge was not performed when Barrios had his discogram caused Dr. GarzaVale to believe that the discogram's reliability and objectivity were reduced.

Dr. Garza-Vale testified that he did not see any evidence of an annular tear on the

CT scan performed on Barrios after the discogram. Dr. Garza-Vale stated, "What I see is

the dye comes close in contact or is central where the annulus is the thinnest. And so you
Golden Eagle Archery, Inc. v. Jackson, 116 S.W .3d 757, 775 (Tex. 2003). 12

Monroe v. Grider, 884 S.W .2d 811, 820 (Tex. App.–Dallas 1994, writ denied). 13

Pool v. Ford Motor Co., 715 S.W .2d 629, 635 (Tex. 1986). 14

13

see a little knuckle of dye go right up to the edge centrally . . . . [Y]ou can see a little

knuckle of dye go right up to the edge and stay there. It doesn't come out, so its not

extruded." According to Dr. Garza-Vale, the CT scan showed a normal annular bulge just

as the MRI had shown and the dye was not coming through the ligament, but "staying right

at the edge of the ligament." When asked if there was anything on the CT scan that

suggested that Barrios had an annular tear, Dr. Garza-Vale replied, "Nothing." Dr. GarzaVale also stated that the first MRI and second MRIs, and the discogram all looked normal

to him.

III. STANDARD OF REVIEW AND APPLICABLE LAW

In considering the factual sufficiency of the evidence where as here, "only one

category of damages is challenged on the basis that the award in that category was zero

or was too low, a court should consider only whether the evidence unique to that category

is so against the great weight and preponderance of the evidence as to be manifestly

unjust, shock the conscience, or clearly demonstrate bias." We review the entire record 12

and consider evidence both favorable and contrary to the verdict to determine whether the

jury's negative finding is against the great weight and preponderance of the evidence.13

To reverse a judgment due to factually insufficient evidence, we must

detail the evidence relevant to the issue in consideration and clearly state

why the jury's finding is factually insufficient or is so against the great weight

and preponderance as to be manifestly unjust; why it shocks the conscience;

or clearly demonstrates bias. Further, [we], in [our] opinions, should state in

what regard the contrary evidence greatly outweighs the evidence in support

of the verdict.[ ]

14

IV. DISCUSSION

Barrios contends the jury's finding of zero damages for pain and suffering is against

the great weight and preponderance of the evidence. Barrios argues that the jury was not
 Outside the presence of the jury, at a charge conference with the trial court, Barrios's counsel 15

stated, "The plaintiff is not going to submit a separate or any question with regard to the first accident."

Question number one in the charge asked, "Did the negligence as defined above under the Jones Act, if any,

of those named below cause the incident of March 2005?" The jury was instructed to determine the amount

of damages if it "answered Question No. 1 . . . 'Yes' for King Fisher Marine, L.P." Specifically, the jury was

asked to award damages, if any, for past and future pain and mental anguish. W e note that throughout his

brief, appellant refers to the damages he complains of as "pain and suffering."

14

"free to disregard pain and suffering" because there was evidence that he sustained

objective injuries of a fractured wrist and "severe annular tears to a cervical disc." Although

Barrios points to evidence that he fractured his wrist, the jury was not asked to determine

damages based on that incident and was only asked to determine whether he sustained

damages from the March 11 incident wherein he allegedly sustained the neck injury.15

Barrios alleges that the evidence, including his medical records, substantiate an

objective injury. Dr. Pechero and Dr. Garza-Vale both relied on Barrios's description of his

symptoms, two MRI studies, a discogram, and a CT scan to formulate their opinions

regarding Barrios's injury.

The first MRI taken on April 12 was normal, according to Dr. Garza-Vale. Dr.

Pechero testified that the doctor who performed the MRI reported that it was a "[n]ormal

MRI of the cervical spine." Dr. Pechero acknowledged that the April 12 MRI did not show

a bulge or any other abnormality. Although Dr. Pechero found a bulge on the June 1 MRI,

he agreed that it was possible that the bulge could have occurred before or after the March

10 incident. Dr. Pechero stated that he based his opinion on when the injury occurred on

the information provided by Barrios. Dr. Garza-Vale admitted that there was a small bulge

visible on the June 1 MRI, but he asserted that it was normal to see those types of bulges

on MRIs, even in asymptomatic individuals.

Dr. Garza-Vale opined that one would see an annular tear in an MRI. However, no

evidence was presented that the annular tear could be observed on the MRIs taken of

Barrios's neck. Dr. Pechero testified that he could not "tell" whether Barrios had an annular

tear from the June 1 MRI and as stated above, found that the April MRI was normal. When

asked whether the bulge he observed on the June 1 MRI was what led him to order the
 Dr. Pechero testified that the intradiscal dysfunction could not be observed on the CT scan and 16

usually is visible on MRIs; however, no evidence was presented that the MRIs taken showed an intradiscal

dysfunction.

 Barrios's mother, father, and wife each testified that Barrios was still experiencing pain after his 17

neck surgery.

 W e note that on direct examination, Barrios did not describe the pain he has experienced as a result 18

of the alleged injury. The only reference to pain made by Barrios is when he stated that he was hurting after

the fall because he hit his head, arm, shoulder, and entire left side.

15

discogram, Dr. Pechero responded, "I think it was more the persistent pain that he had that

kind of led me to continue to work him up to see what was really causing his discomfort."

Dr. Pechero believed that he would have performed the discogram based on the clinical

findings alone, even if he had not seen the bulge on the MRI.

Barrios asserts that the discogram confirmed that he had an annular tear and that

it provided objective results that "could not be faked by subjective complaints of pain."

However, Dr. Pechero agreed that when performing a discogram, the doctor relies on the

patient's complaints of pain and that the doctor who performed the discogram on Barrios

relied solely on Barrios's statements that he felt pain in a particular area after the injection.

Dr. Garza-Vale testified that the discogram is highly unreliable because the test is based

on what a patient tells the physician regarding the pain he is experiencing; therefore, it is

not a truly objective examination. Dr. Garza-Vale opined that because a discogram is

based on subjective complaints of pain and is unreliable, doctors can perform a Marcaine

Challenge or pressure testing to confirm the patient's complaints of pain. However, no

such testing was performed to confirm Barrios's complaints that he felt pain during the

discogram.

Dr. Pechero stated that the CT scan was the first objective diagnostic test that

substantiated Barrios's complaints of pain due to an annular tear—a test Dr. Garza-Vale

testified contained no evidence of an annular tear. Although Dr. Pechero stated that the 16

CT scan was objective evidence of the annular tear, Dr. Garza-Vale disputed that

conclusion. The remaining evidence of Barrios's pain was of a subjective nature.17

Barrios argues that he "testified directly as to the pain he had experienced" and 18
Lamb v. Franklin, 976 S.W .2d 339, 341 (Tex. App.–Amarillo 1998, no pet.). 19

Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. App. 2008). 20

See Walker v. Ricks, 101 S.W .3d 740, 748 (Tex. App.–Corpus Christi, 2003, no pet.) (providing that 21

a jury may "disbelieve a witness, including a physician, even though his testimony is not contradicted"); Waltrip

v. Bilbon Corp., 38 S.W .3d 873, 882 (Tex. App.–Beaumont 2001, pet. denied) ("The judgments and inferences

of experts or skilled witnesses, even when uncontroverted, are not conclusive on the jury or trier of fact, unless

the subject is one for experts or skilled witnesses alone, where the jury or court cannot properly be assumed

to have or be able to form correct opinions of their own based upon evidence as a whole and aided by their

own experience and knowledge of the subject of inquiry. W e believe that the presence or absence of pain,

based on the subjective complaints of an individual, is not a subject for experts or skilled witnesses alone.")

(internal citations omitted).

See Walker , 101 S.W .3d at 750.

22

16

the fact that the surgery relieved his complaints of pain bolsters the existence of an annular

tear. However, Dr. Garza-Vale testified that Barrios was "putting on symptoms that [were

not] there." In addition, Dr. Garza-Vale stated that the clinical symptoms that Barrios

described did not correlate with an annular tear. Dr. Pechero testified that after the

surgery, Barrios's neck pain was gone and Barrios felt "good." Dr. Pechero stated that

neurologically, Barrios's "arm [was] back" and his weakness and numbness were gone.

However, Barrios testified on cross-examination that he feels "bad" and when asked if Dr.

Pechero was "wrong" when he stated Barrios was "pain free," Barrios replied, "Yes."

"To uphold a jury's finding that an injured party incurred no damages for past pain

and suffering, the jury must have found by a preponderance of the evidence that no pain

and suffering accompanied the injury." The jury is the sole judge of the credibility of the 19

witnesses and the weight to be given their testimony; therefore, "an appellate court must

give deference to a jury's decision regarding what weight to give contradictory testimonial

evidence because the decision is most likely based on an evaluation of credibility and

demeanor, which the jury is in the better position to judge." Here, the jury was free to

20

believe or disbelieve Barrios's subjective complaints of pain as well as the testimony of any

other witness, including Dr. Pechero—who, in this case, primarily relied on what Barrios

told him. We accept and will not interfere with the jury's resolution of any conflicts or 21

inconsistencies in the evidence in determining the sufficiency of the evidence.22

A jury finding that the plaintiff suffered no past pain and suffering is against the great
Monroe, 884 S.W .2d at 820 (citing Hammett v. Zimmerman, 804 S.W .2d 663, 664-65 (Tex. 23

App.–Fort W orth 1991, no writ)).

See Golden Eagle Archery, Inc., 116 S.W .3d at 775 (explaining and approving the court's 24

conclusion in Monroe that the "jury could not ignore uncontroverted evidence of injury in denying recovery for

past physical pain"); see also Luna v. Torres, No. 13-07-00471-CV, 2009 Tex. App. LEXIS 6972, at *12 (Tex.

App.–Corpus Christi Aug. 31, 2009, no pet.) (mem. op.) ("A jury may award 'zero damages' when the injuries

sustained are subjective in nature or there is both subjective and objective evidence of damages."); Biggs v.

GSC Enters., Inc., 8 S.W .3d 765, 768-69 (Tex. App.–Fort W orth 1999, no pet.) (stating that "[a]ppellate courts

are reluctant to overturn jury findings of no damages for pain and suffering when the indicia of injury and

damages are more subjective than objective").

See Monroe, 884 S.W .2d at 820.

25

17

and preponderance of the evidence when there is uncontroverted evidence of an objective

injury. However, in this case, evidence that Barrios suffered an objective injury—an 23

annular tear—was controverted by Dr. Garza-Vale's testimony that the CT scan was

normal, and the remaining evidence of Barrios's damages for physical pain were entirely

subjective—that is, based on Barrios's complaints of pain to Dr. Pechero and others.24

Therefore, after reviewing all of the evidence, we cannot conclude that the evidence

supporting the jury's finding of zero damages for physical pain is against the great weight

and preponderance of the evidence. We overrule Barrios's sole issue. 25

IV. CONCLUSION

We affirm.

 

LINDA REYNA YAÑEZ,

Justice

Delivered and filed the

27th day of May, 2010.