### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00724- CV

Texas Depart m ent of Transp ortat ion, App ellant

v. Atanasio Ban da, App ellee

F ROM CO UNTY COURT AT LAW NO . 1 O F TRAVIS CO UNTY NO. C-1 -CV- 07- 0094 68, H ONO RAB LE J. DAVID P HI LLIP S, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellee Atanasio Ba

nda sued appellant Texas Depa rtment of Transpor

tation (“the Depa rtment”) for injuries he sustained when the car in which he was a passeng er coll i d ed wi t h a

v ehicle owned by the Depa rtment and driven by its employ ee. A jury found the Depa rtment’s employ ee neg lige nt a

nd awa rded Ba nda damag es. The trial court denied the Depa rtment’s motion for judgme nt notwithstanding the verdic t o r, i n t h e alterna tive, a new trial. On appea l, the Depa rtment asser

ts that (1) there was leg ally and fac tually i n s u fficient evidenc e to prove that the

acc ident cause d Ba

nda’s damag es due to the lack of require d expert-witness testimony ; (2) the trial
court er re d i n excluding evidenc e showing that Ba nda’s medical provider ag ree d to acc ept less money for its service s than the amount it orig inally billed; and (3) the trial court abused its discretion in admitting (a) Ba

nda’s medical bills, g iven the otherwise leg ally insufficient evidenc e of causa tion, (b) medical rec ords purporting to be expert opinion testimony without first qualify ing the author asan expert, and (c) cer tain lay opin i o n t est imony on causa tion. Concluding that expert-witness testimony was require d to prove that the acc ident cause d some of Ba nda’s damag es, we will reve rse the judg ment and re mand the ca use for a new trial.

F ACTUAL AND P ROCEDURAL BACK GR OUND Ba nda was a passeng er in a small pickup truck driven by J uan Antonio Cantu. Whil e trave ling on U.S. Hig hway 59 near the junction of I nterstate 37, Cantu’s vehicle “t-bone d” into the side of the Depa

rtment’s pickup truck at approximately 35 to 40 miles per hour. Photogra phs of the vehicles taken afte r the acc ident show that the front of Cantu’s vehicle suffe red “moder ate to sever e” front-e nd damag e.

Ba nda was taken by ambulance to a local emer g ency room complaining of pain in his chest and rig ht big toe. Doctors diag nosed him with bruised ribs and a broken big toe. Ba nda followed up two day s later with a chiropra ctor complaining of pain in his neck, back, toe, and chest. Although Ba

nda testified at trial that he experience d pain in his back and neck immediately afte r the

acc ident, the ambulance and emer g ency room rec ords document only the complaints of pain in his chest and big toe. Ba

nda continued to see the chiropra ctor reg ularly for about four months following his init ial visit. Ba

nda sued Cantu and the Depa rtment asser

ting that the neg lige nce of Cantu and the Depa rtment’s employ ee cause d his injuries. He settled with Cantu and proce eded to trial ag ainst the Depa rtment. At trial, Ba

nda testified throug h a translator that, afte r the acc ident, “[A]l l my body was hurting

. My [bi g toe] g ot broken, an d my ribs wer e hurting , and also rig ht here on my back I g ot hit.” Asked if any portion of his body hit any thing on the inside of the truck, Ba nda responde d that
2“I t hit me here [i ndicating his chest], but y o u k n o w how the impact is. I t’s very hard. So I don’t

know if it hit me there .” On further questioning, he could not say for cer tain if his chest injury was the result of a collision with the dashboar d or from the seatbe lt. Ba nda d es cribed the impact as “strong ” and said that immediately fol l o wi n g the acc ident “I couldn’t see at that moment and

ever y thing was hurting me.” He testified that afte r the acc ident his ribs wer e very tender —a nine out of ten on a pain scale —and that his rig ht foot was a seven out of ten. Ba nda also testified that both his neck a nd back a lso hurt after

the ac cident, but was not a sked to descr ibe his level of pa in. Ba nda testified that he wa s ta k e n b y a mb u la nce to a local emer g ency room, examined, g iven pain medication, and rele ased. He stated that the pain medication he rec eived at the hospital helped him “a littl e bit beca use I had a lot of pain.” Ba n d a n ex t t est ified about his phy sical impairment and his four- month long tre atment with the chiropr actor : Q. During the time that [ t h e chiropractor] trea ted y ou, what ty pe of phy sical activities wer e y ou having difficulty doing a t that time? A. Every

thing. I couldn’t do any

thing. Q. When y ou said y ou couldn’t do any thing, why

couldn’t y ou? A. Be cause ever

y thing was hurting , I could bare ly g et out of bed. And I was like that for a bout six months. Q. How did it affe ct y our sleep? A. A lot. I couldn’t sleep. I had a lot of pa in.

Ba nda also testified that he had difficulty driving due to the specia l shoe his doctor presc ribed to trea t his broken big toe.

3As to his pain, Ba nda testified that, afte r wea ring the shoe for three months, he had

no more toe pain. He testified that his side rib p ai n h ad cl eared up afte r about a y ear , but that his back hurt him approximately once ever y wee k to two wee ks, an d t h at when it hurt, the pain was about a five on a ten-point scale

. Ba nda testified that his neck pain was more fre quent, usually

occur ring about two day s a wee k. The front part of his chest also g ave him pain about once a wee k. To trea t his pain he took over- the-c ounter pa in medication.

Ba nda testi fied about how hi s injuries aff ecte d his daily

life and a bout his phy sical condition before the ac cident:
Q. Are there any activities that y ou used to do but y ou have difficulty doing now as a r esult of these injuries? A. Well, no, I can’ t do any thing. Q. Do y ou have a

tendenc y —for instanc e, ca

n y ou do any

lifting? A. No. Q. Have y ou tried? A. Yes, but I

can’ t. Q. And what ha

ppens whe n y ou try ? A. I don’t do any

thing. Q. Have y ou ty

pically been pr etty

healthy ? A. Yes. Q. Had y ou ever

had proble ms with y our nec k befor e? A. Be fore , no.

4Q. Had y ou ever had any problems with y our bac k befor e this acc ident? A. None. Q. What ty

pes of problems had y ou ever had with y our ribs befor e this acc ident? A. None. Q. What about y our chest? Have y o u ever had any problems with y our chest befor e this acc ident? A. None.

Ba nda explained that he g ot short of brea th and had chest pain on occa sion afte r the acc ident and that he did not have tha t problem prior to the a ccide nt.

Ba nda als o te s ti f

ied about a prior on-the-job injury to his ankle that he sustained about

a y ear befor e the acc ident. He t est ified that he suffe red impairment afte r that injury , stating that, afte r t he inj ury , “I [co u l d n ’t ] do any thing.” Ba

nda also testified t hat he was not able to lift things afte r hi s ankle injury

“B eca use I could bar ely

walk with my

foot. Iwas wa lking with a cane and I

was walking with crutc hes.” He answe red “y es” to whether he “wa s able to g et around okay ” rig ht befor e the car acc ident and said that, by then, he was walking with just a brac e. Finally , Ba n da testified, over the Depa

rtment’s objection, that his difficulty in lifting at the time of trial was cause d by the ca r ac cident. The Depa rtment made two objections to Ba nda’s documentar

y ev i dence , both of which the trial court over ruled. The first conce rned bill ing rec ords from the chiropractor

. Be fore trial, Ba nda’s counsel settled the chiropra ctor’s bill for less than the amount orig inally char g ed. The Depa rtment asser

ted that s ection 41.0105 of the civil prac tice and reme dies code require d

5evidenc e of any such reduc tion to be prese nted to the jury

. See T ex. Civ. Prac. & Rem. Code

Ann. § 41.0105 (West 2008) (“I n addition to any other limit ation under law, rec overy of medical or health care expenses incurre d is limit ed to the amount ac tually paid or incur

red by or on behalf of the claimant.”)

. Second, the Depa rtment objected to a portion of the chiropra ctor’s medical rec ords that contained a narr ative statement purporting to opine as to the cause of Ba nda’s injuries as expert witness testimony

for whic h the prope r founda tion had not been laid. The jury found Cantu 40% neg lige nt and the Depa rtment 60% neg lige nt. I t awa rded Ba nda $6,000 for past pain and mental anguish; $12,000 for future pain and mental ang uish; $16,000 fo r p as t phy sical i mpairment; $32,000 for future phy sical i mpairment; and $8,412.51 for past medical expenses. As Ba nda had not worke d for some time befor e the acc ident, he did not seek past or future lost wag es. The D epar tment moved for judgment notwit hstanding the verdict or, in the alterna tive, a new trial. The court d enied the Depa rtment’s motion and rende red judgme nt consistent with the jury ’s verdic t, reduc ing Ba nda’s awa rd by the amount of Cantu’s settlement and the diffe renc e betwe en the c hiroprac tor’s billed c harg es and the amount B anda a ctually paid. The Depa rtment appe als.

STANDARD OF REVIEW I n revie wing a jury verdic t for leg al sufficie ncy , we consider the evidenc e in the light
most favor able to the verdic t, cre diting evidenc e favor able to the verdic t if rea sonable jurors could and disrega rding contra ry evidenc e unless rea sonable jurors could not. City of Keller

v. W ilson , 168 S.W .3d 802, 827 (Tex. 2005). We reve rse the court’s judgme nt only if the evidenc e prese nted at t ri al would not allow rea sonable and fair- minded jurors to rea ch the finding under
6revie w. Id. We will sustain a leg al-suff ici en cy challeng e if the rec ord reve als: (1) the complete absenc e of evidenc e of a vital fac t; (2) that the court is barr ed by rules of law or evidenc e from g iving weig ht to the only evidenc e offe red to prove a vital fac t; (3) that the evidenc e offe red to prove a vital fac t is no more than a mer e scintilla; or (4) that the evidenc e conc lusively establishes the opposite of a vital fac t. Id. at 810. More than a scintilla of evidenc e exis ts when rea sonable and fair- minded people could differ in their conclusions based on the evidenc e in the rec ord. Forbes, Inc. v. Granada Bioscience

s , 124 S.W .3d 167, 172 (Tex. 2003). “When revie wing a jury verdic t to deter mine the fac tual sufficie ncy of the evidenc e, the court of appea ls must consider and weig h all the evidenc e, and should set aside the verdic t only if it is so contra

ry to the overw helming weig ht of the evidenc e as to be clea rly wrong and unjust.” Cain v. Bain , 709 S.W .2d 175, 176 (T ex . 1 9 8 6 ). “The court of appea ls is not a fac t finder. Acc ordingl y , the court of appea ls may not pass upon the witnesses’ cre dibilit y or substitut e its judgme nt for that of the jury , even if the evidenc e would clea rly support a differ ent result.” Maritime Ove rseas Corp. v. Ellis , 971 S.W .2d 402, 407 (Tex. 1998).

DISCUSSIO N I n its first and third issues, the Depa rtment arg ues that the j u ry ’s verdic t was not supported by leg ally and fac tually sufficie nt evidenc e beca use Ba nda failed to prese nt e xp e r t-witness testimony linking his damag es to the car acc ident. Specifica lly , it arg ues that expert testimony was require d to prove (1) that Ba nda’s ne ck and ba ck injuries we re c aused by the accident, and (2) the likely duration of all of his injuries. Although acknow ledg ing that he did not prese nt expert witness

7testimony , Ba nda arg ues that his lay testimony was sufficie nt to prove that his damag es wer e cause d by the ca r ac cident. “The g ener al rule has l o n g been that expert testimony is nece ssary to establish

causa tion as to medical conditions outside the common knowled g e and experience of jurors.” Guev ara v. Ferrer , 247 S.W .3d 662, 665 (Tex. 2007). L ay testimon y ca n , “in limit ed circ umstances,” prove “the exis tence and nature of cer tain basic conditions,” g iven “proof of a logic al sequenc e of events, and temporal proxi mity betwee n an occur renc e and the conditions.” Id. at 667. I n the context of an automobile acc ident, lay testimony “esta blishing a sequenc e of events which provides a strong , logic ally trac eable connec tion betwee n the ev en t and the condition” can support a finding of ca

usation, provided that such c onditions (1) are within the common knowledg e and experience of lay persons, (2) did not exis t befor e the a ccide nt, (3) appe are d afte r and close in time to the acc ident, and (4) are within the common knowledg e and experience of lay persons, cause d by automobile acc idents.

Id. Temporal p ro x imity betwee n an acc ident and an injury does not usually , by itself, support an infere nce of medical causa tion. Id. Tempora l proxi mity ca n s u p p o rt an infere nce of medical causation, however, for i njuries of a “basic nature,” including, for example, cer tai n t y pes of pain and bone fra cture s that are within a lay person’s gen er al experience and common-sense understanding as being cause d by automobile acc idents. Id. at 668. Thus, “it would be withi n the g ener al experience an d co m mon knowledg e of lay persons that [an automobile] acc ident cause d [a plaintiff] to be transporte d to a medical car e fac ility and to be car ed for medically to some deg ree .”
8Id. at 6 6 7

. Acc ording ly , a jury could find a causa l link betwee n a car acc ident and a person’ s

“immediate post-acc ident condition which resulted in his being t ra n s p o rted to an emer g ency

room and examined in the emer g ency room” without needing expert testi m o n y . Id

. at 669. Such a conc lusion

acc ords wi t h human experience , [t he supreme court’s] prior case s, and the law in other states wher e courts have held that causa tion as to cer tain ty pes o f p ain, bone fract u res, and simil ar basic conditions following an automobile collision can be within the common experience of lay jurors.

Id. at 668. I n the p re s en t ca se, Ba nda testified that the impact was “strong ” and that afte r the

acc ident he felt pain i n his toe, chest, back, and neck. The medical rec ords show that he was transporte d by ambulance to a hospital complaining of pain in his toe and chest. He was diag nosed with a broken toe and bruised ribs. Two day s later, Ba nda prese nted at the chiropra ctor’s office complaining of pain in his neck, back, toe, and chest. He wa s diag nosed with a stra in or sprain to his back a nd neck. The Depa rtment admits that Ba

nda’s broken toe and chest injuries are t h e t y p e of injuries for which causa tion can be supported by lay testimony in light of the nature of the acc ident, the temporal proxi mity of the injuries, and Ba nda’s testimony that he had no injuries to his chest and
toe prior to the acc ident. I t arg ues, howeve r, that his neck and back injuries are not “over t”—which

we take to mean obvious and manifested immediately afte r the acc ident—and thus require d expert testimony to show causa tion. Contrary to the Depa rtment’s arg ument, Guev ara does not require that injuries be “over

t” for their cause to be p ro v en by lay testimony

. Although Guev ara uses broken
9bones and lace rations as examples of injuries that logic ally result from car acc idents and can be

supported solely by lay testimony , we believe that back and neck pain—including the kind of delay ed

sorene ss Ba

nda had here —can also be within the experience and knowledg e of lay persons as being

cause d by car acc idents. See id. (“[C] ausation as to cer tain ty pes of pain, bone fra cture s, and simil ar basic conditions following an automobile collision can be within t h e common experience of lay jurors.”) ; see, e.g. , State Office of Risk Mgmt. v. Larkins , 258 S.W .3d 686, 691 (Tex. App.—Waco 2008, no pet.) (bac k injuries from phy sical assault within common knowledg e of jury ); Metropolitan Transit Auth. v. Harris County , No. 14-06-00513- CV, 2008 W L 4354503, at *8 (Tex. App.—Houston [14t h Dist.] Aug

. 26, 2008, no pet.) (mem. op.) (lay testimony sufficie nt to establish

causa tion for damag es fr om injuries arising afte r collision with bus).

Thus, we conclude that Ba nda’s t es t i m o n y about the acc ident, the trea tment he

rec eived, and the pain and incapa city he had immediately there afte r is leg ally sufficie nt evidenc e to prove that the injuries he complained of at that time wer e cause d by the acc ident. Be cause “it would be within the g ener al experience and common knowledg e of lay persons that [an automobile]

acc ident cause d [a plaintiff] to be transporte d to a medical car e fac ility and to be car ed for medically
to some deg ree ,” Ba

nda’s testimony supports at least part of the jury ’s awa rd of past medical
trea tment, pain and suff

ering , and phy sical impairment. Id. at 667. The probable duration of such injuries, howeve r, is not within the g ener al experience and common knowledg e of lay persons. Whil e a lay

person’ s experience and knowledg e can log ically link Ba nda’s injuries—and thus at l east some of hi s initial damag es—to th e ac ci d ent, a lay person can only specula te about how long a bac k or neck strain, fra cture d toe, or bruise d ribs take to hea l

10or, i n some case s, whether they are likely to heal at all. Ba nda’s testim ony alone c annot establish the ex tent or s ev er i t y of t he pain or i mpairment t hat he would, with medical probability , continue
to suffe r as a result of those injuries afte r his initial trea tment phase is complete. Consequently , the jury lacke d leg ally

sufficie nt evidence on which to base its damag e aw ards a s to those injuries. Ba nda arg ues, and we ag ree , that non-ec onomic damag es cannot be deter mined with mathematica l prec ision and, acc ording ly , a jury i s gi v en latitude in awa rding such damag es. See Bentley v. Bunton , 94 S.W .3d 561, 605 (Tex. 2002). The e vidence , howeve r, m ust justify the
amount awa

rded. Id. “A jury

may not simpl y pick a number and put it in the blank, but must find

an amount that ‘would fairly and rea sonably compensa te’ for the loss.” Rentec h Steel, L.L.C

. v. Teel , 299 S.W .3d 155, 165 (Tex. App.—Eastland 2009, pet. dism’d) (quoting Saenz v. Fidelity & Guar. Ins. Underwriters , 925 S.W .2d 607, 614 (Tex. 1996) ). Absent the require d expert testimony here , the jury had leg ally insufficient evidenc e from whi ch t o deter mine the proper amount of some of Ba nda’s da mag es. Concluding that expert testimony w a s r e q u ir e d to e s ta

b li s h s o me o f B anda’ s damag es,

we sustain the Depa

rtment’s first and third issues. “Or dinarily , we rende r judgme nt when we sustain

a no evidenc e issue. Howeve r, when there is some evidenc e of damag es, but not enoug h to support the full amount, it is inappropria te to rende r judgme nt. ” Akin, Gump, Strauss, Hauer & Feld, L.L.P.

v. National Dev

. & Researc h Corp. , 299 S.W .3d 106, 124 (Te x . 2 0 0 9 ). W e have the option of sug g esting a remittitur or rema nding to the trial co u rt fo r a n ew trial. Id. Ba sed on the prese nt

rec ord, we are unable to sug g est an appropriate amount for a remittitur; conseque ntly , we remand the cause to the trial court for a new trial on all issues. See Tex. R. App. P. 44.1(b) (“The court may

11not order a separ ate trial solely on unliquidated damag es i f l i ab i l ity is contested.” ). Be cause we

rema nd the ca use for a new trial, we ne ed not re ach the Depa rtment’s other issues.

CONCLUSION We reve rse t h e t ri al court’s judgme nt and rema nd the cause to that court for a new tria l.

J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pury ear and Pember

ton Reverse d and Remande d Filed: De cembe r 22, 2010

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