Opinion issued July 21, 2015.

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-01068-CV

———————————

DIAMOND OFFSHORE SERVICES LIMITED AND DIAMOND 

OFFSHORE SERVICES COMPANY, Appellants

V.

WILLIE DAVID WILLIAMS, Appellee

On Appeal from the 164th District Court

Harris County, Texas

Trial Court Case No. 2011-31922

O P I N I O N

In this Jones Act case, Willie David Williams sued Diamond Offshore 

Services Limited and Diamond Offshore Services Company (collectively, 

“Diamond Offshore”) for negligence and unseaworthiness arising out of an 
2

incident in which Williams allegedly injured his back while trying to repair a piece 

of machinery on board an offshore oil rig owned and operated by Diamond 

Offshore. The trial court rendered judgment on the verdict in favor of Williams, 

awarding Williams, once all applicable credits and offsets had been applied, 

approximately $8.5 million in compensatory damages, $235,381 in pre-judgment 

interest, and post-judgment interest. In three issues, Diamond Offshore contends 

that (1) the trial court erroneously excluded a post-incident surveillance video 

depicting Williams performing various outdoor activities; (2) the trial court 

erroneously excluded evidence that Diamond Offshore paid Williams 85% of his 

pre-incident salary for three years before trial; and (3) the jury’s damages awards 

for past and future disfigurement, future medical expenses, loss of future earning 

capacity, future pain and mental anguish, and future physical impairment were 

excessive.

We affirm.

Background

Diamond Offshore owned and operated the Ocean Lexington, a drilling rig 

located off the coast of Egypt in 2007–08. Williams, who had worked for 

Diamond Offshore on two different occasions and in various capacities for 

approximately a decade, was a mechanic on the rig. He worked on the rig in 
3

alternating “hitches”: twenty-eight days on the rig, followed by twenty-eight days 

off.

On the afternoon of January 7, 2008, the day before Williams was scheduled 

to return to the United States, one of the drillers informed him that a set of 

elevators on the rig had failed and that he needed to repair it.1Specifically, the 

driller told Williams that the rig was “going down” unless Williams repaired the 

elevators. Williams testified that, to him, this directive meant, “By any means 

necessary, fix it.” 

Williams worked on the elevators for about thirty to forty minutes. Williams

bent over at the waist to maneuver the elevators, which weighed several hundred 

pounds, into his work area. Williams did not lift the elevators; instead, he 

“scoot[ed]” them around on the floor of the shop. While he worked on the 

elevators, Williams felt a “sharp pain in [his] lower back after a few minutes.” 

After he finished working, Williams saw the doctor onboard the rig, who advised 

him to rest. The next morning, Williams bent over while sitting on his bed and felt 

discomfort in his back. 

Because his back continued to hurt after he arrived home, Williams saw Dr. 

Patrick Barrett, an orthopedic surgeon, ten days after the incident. Although he is 

an independent physician and not a company doctor, Dr. Barrett has “seen patients 

 

1 An “elevator” is a piece of machinery that lowers pipes into the drilling hole on a 

rig.
4

off and on over the years for” Diamond Offshore, and Diamond Offshore referred 

Williams to Dr. Barrett after his injury in this case. Williams reported that he had 

leg pain in addition to back pain. Williams also told Dr. Barrett that he had injured 

his back on a rig in 2006, approximately two years before the incident at issue 

here. Williams acknowledged at trial that he had had ongoing back pain since the 

first incident, but that pain had “never stopped [him] from doing [his] job.”2 

Upon seeing Williams, Dr. Barrett ordered an MRI of Williams’s lumbar 

spine. The MRI revealed a “small central herniation” at the L4-L5 vertebrae, 

“degenerative changes at multiple levels,” and a “very small central bulge” at the 

L5-S1 vertebrae. Dr. Barrett saw Williams again in March 2008 after 

approximately six weeks of physical therapy. Williams had “rather significant pain 

in the mid to lower lumbar area,” and another MRI revealed a herniation at L1-L2, 

a central disc protrusion at L4-L5, and another disc protrusion at L5-S1. In April 

2008, Dr. Barrett performed a micro discectomy at L5-S1 to relieve Williams’s

lingering leg pain. Dr. Barrett testified that this surgery alleviated Williams’s leg 

pain, but Williams’s back pain remained unchanged and “continue[d] to be a major 

problem.” Dr. Barrett’s notes reflected that Williams was “simply unable to bend

 

2

The trial court also admitted MRI records dated December 5, 2005, before either 

of Williams’s two onboard back injuries had occurred, which revealed 

“[d]egenerative dis[c] disease of the lumbar spine.” 
5

or stoop or lift more than about 20 pounds without his back bothering him quite a 

bit.” 

In an attempt to relieve Williams’s back pain, Dr. Barrett performed a fusion 

surgery in February 2009. This surgery involved inserting screws and rods into 

Williams’s back. Dr. Barrett, who testified via video deposition taken in April 

2012, nearly a year and a half before trial, stated that he had seen Williams one 

month prior to his deposition and that Williams still had problems with the nerve 

located next to the L5 vertebrae, which caused Williams’s foot to drop and resulted 

in Williams’s inability to raise his toes. Dr. Barrett testified that, in his opinion, 

further surgery would probably not help relieve Williams’s lingering back pain. 

Dr. Barrett acknowledged Williams’s pre-existing degenerative changes in his 

back but testified that the incident at issue caused all of Williams’s current medical 

problems. Dr. Barrett stated that he would not release Williams to return to his 

former career on an offshore rig, and he opined that Williams “would have a hard 

time maintaining any kind of gainful employment due to his chronic pain, his 

chronic neurological findings; and I would professionally consider him totally 

disabled at this point.” He further opined that, as a result of his chronic pain,

Williams would likely “have a hard time even sustaining sedentary type work 

where he had to sit.” 
6

Dr. Jose Rodriguez, another orthopedic surgeon, testified that he reviewed 

Williams’s medical records but did not treat Williams. Dr. Rodriguez stated that, in 

his opinion, “[t]he repetitive work that [Williams] was doing with some type of

lifting associated with it caused his ruptured disc.” Dr. Rodriguez testified that, 

after the fusion surgery, even if Williams was pain free, he would still restrict 

Williams to lifting not more than thirty pounds regularly and fifty pounds 

infrequently to avoid damaging the fusion. Dr. Rodriguez would also place 

restrictions on standing, sitting, and walking for long periods of time, as all of 

these actions place stress on the lumbar spine. Dr. Rodriguez agreed with Dr. 

Barrett that Williams could not return to his pre-incident offshore work. He stated 

that Williams could “do light-duty work if the tolerance to his [pain] allows him to 

function through a whole day of work.” 

Dr. Rodriguez testified that Williams could potentially undergo another 

surgery in the future to remove the screws and rods currently implanted in his 

back, which would hopefully improve his pain by at least fifty percent. He 

estimated that this procedure could cost up to $100,000. Dr. Rodriguez also 

testified that, even if Williams undergoes this “hardware removal” surgery, he 

would still have the same functional restrictions as before. He stated that Williams 

will need pain medications and some kind of physical exercise regimen daily for 
7

the remainder of his life, which could range in cost from $5,000 to $10,000 per 

year. 

Dr. Kenneth McCoin testified as Williams’s economics expert. He testified 

that he calculated Williams’s past lost earning capacity, measured from the date of 

the incident to the trial date, at $557,793 and his future lost earning capacity at 

$2,254,275. Dr. McCoin based his calculations on Williams’s pre-incident annual 

salary of $134,000, the growth rate in wages, the fringe benefits, such as health 

insurance, the fact that Williams had received as a result of being employed, and 

Williams’s work-life expectancy. Dr. McCoin stated on cross-examination that the 

“implicit assumption” in his calculations was that Williams would never return to 

any kind of work. He acknowledged that if Williams did return to work, his 

calculations would need to be reduced by the amount of Williams’s new salary. 

Williams no longer had tingling and numbness in his right leg after the first 

surgery in April 2008, but he testified that his back pain had never gone away. He 

stated that he had also developed a “foot drop problem,” where one of his feet 

drags and he can no longer walk straight even on carpeted floors. Williams 

testified that, since the incident, he had tried to “live [his] life and do things,” but 

that he had not “held a job where [he] receive[s] a check from anyone.”

In July 2011, Williams underwent a “Functional Capacity Evaluation” that 

concluded that Williams could perform “medium level work.” Diamond 
8

Offshore’s counsel asked Williams about this evaluation and about Dr. 

Rodriguez’s testimony that Williams could “lift 30 pounds on a frequent basis and 

50 pounds on an occasional basis” and whether Williams had attempted to find a 

job within those particular restrictions. Williams responded that he had not and 

further testified:

[I’ve] been going through back surgery, two back surgeries. I get 

injections all the time. My back hurts constantly. I just saw the 

doctor three weeks ago. He wants to do exploratory surgery on my 

back. It’s not just my back. Over the last year the—they have the 

documentation to show you this—the nerves between my back and 

my foot are not communicating anymore; and I can’t move my toes, 

just my big toe. My toes are curling up under me. It’s letting my foot 

drop down, and it’s progressively getting worse and worse. So, I’ve 

just been talking to the doctors. They—I’m really not wanting to have 

any more surgery. They can’t really promise me it’s going to do me 

any good, but that’s where we’re at at this time. 

Williams also testified that he can bend over, sit for a long period of time, stand for 

a long period of time, and work on cars, but that it hurts him to do all of these 

things. 

Williams further stated that he tries to work on his property with an 

excavator that he owns. He testified that, for the most part, working with the 

excavator is stable and that he uses it for about thirty minutes at a time. He stated:

I never said I couldn’t work at all. That was the doctors or those other 

people. I’ve never stated I couldn’t work at all. Anytime I said 

anything about that, I just said it hurts. I still do these things, all of 

these things. It just hurts me. 
9

Williams testified that this type of work is not strenuous and that there is minimal 

vibration with the excavator, although his back will start to hurt if he sits in the 

excavator’s seat for long periods of time.

Diamond Offshore’s counsel asked Williams what kind of work he thought 

he could do after the incident. Williams responded:

I don’t know. If you’re talking about me getting a job, I don’t know 

how I would get a job. I take pain medication and muscle relaxers, 

and nobody’s going to give you a job with that. I have bolts and rods 

in my back, and it hurts me. I don’t know why anybody would hire 

me.

Williams testified that he “feel[s] terrible” and that he cannot enjoy life the way he 

used to because he cannot do things like ride motorcycles and race cars and boats 

and jet skis the way he did before the incident. 

Several of Williams’s friends and family members testified concerning the 

impact that the incident had had on Williams. Williams presented testimony from 

multiple witnesses that he had formerly been very active outdoors and with his 

fourteen-year-old daughter, who often wants to do things that Williams can no 

longer do, such as waterskiing and attending softball games. These witnesses 

testified that there is “a lot of stress” on Williams’s family after the incident. The 

witnesses agreed that Williams tries to engage in the same activities that he used to 

enjoy, but that he cannot participate for very long, and that he often looks 

“defeated.”
10

Williams’s wife testified that since the incident Williams had been angry and 

depressed “a lot” and “[r]eal agitated,” that they argue, and that Williams “feels 

like he’s not worth what he used to be worth” because he can no longer provide for 

the family or do the things he used to enjoy doing. She also testified that Williams 

“still is miserable” and that Williams’s injuries have affected his sleep schedule. 

Now, Williams hardly ever sleeps at night and instead sleeps “all day.”

Thomas Meunier, a vocational rehabilitation counselor, testified that he met 

with Williams, performed several tests and evaluations of Williams, and reviewed 

Williams’s medical records, including the July 2011 functional capacity 

evaluation, in arriving at a conclusion concerning whether Williams would be able 

to return to work. Meunier testified that Williams’s past work history involved 

semi-skilled to skilled mechanic work, but that Williams did not have any 

transferrable skills given the postural and other work restrictions now in place on 

him after the incident. Meunier stated:

I don’t think [Williams] has a residual capacity to maintain 

employment even at a lower-exertional level because of chronic pain 

of the medicals that I read from his treating physician. He, I believe, 

is motivated. I think he would be working if he could, but I don’t 

think he’s going to be able to successfully compete for employment. 

And I think the bigger problem he would have, even if he were able to 

secure some type of employment, would be able to maintain the 

employment, show up every day. So, I—I think that he has lost 

access to the competitive labor market, and he has a corresponding 

loss of earning capacity. 
11

Meunier disagreed with the conclusion reached in the functional capacity 

evaluation that Williams could do “medium level” work, pointing out that 

Williams’s ability to “stand and walk, bend, [and] stoop, are limited to an 

occasional basis.” Meunier also did not agree that Williams could return to 

performing any skilled work, such as heavy equipment operation or mechanics, on 

a stable and consistent basis. Furthermore, Meunier discounted the functional 

capacity evaluation on the basis that it was two years old at the time of trial and 

medical testimony indicated that Williams’s condition had worsened since that 

evaluation had been performed.

Bruce Brawner testified as Diamond Offshore’s vocational rehabilitation 

counselor. Brawner relied upon the functional capacity evaluation and opined that 

Williams could likely seek employment as a dispatcher, a job involving light 

mechanic work, or perhaps car sales or customer service. He researched the 

median pay in Mississippi, where Williams lives, for these professions and 

concluded that, if Williams found one of these jobs, Williams could potentially

make around $38,600 per year. Brawner testified that each of these jobs is 

consistent with the physical restrictions that Dr. Rodriguez testified needed to be 

applied to any of Williams’s future jobs. 

Dr. Kenneth Boudreaux, an economist, testified for Diamond Offshore 

concerning potential economic loss sustained by Williams. Dr. Boudreaux testified 
12

that he calculated Williams’s past lost earning capacity as $504,045. With respect 

to loss of future earning capacity, Dr. Boudreaux stated that Diamond Offshore’s 

counsel asked him to assume that Williams could earn roughly $38,600 per year in 

the future. He calculated Williams’s lost future earning capacity at $760,435.3 Dr. 

Boudreaux clarified that the figure for past plus future lost earning capacity 

equaled $1.264 million. 

Dr. Christopher Cenac, an orthopedic surgeon in Louisiana, testified as

Diamond Offshore’s medical expert. Dr. Cenac reviewed Williams’s medical 

records and evaluated him in person in February 2012. Dr. Cenac agreed that 

further relief from Williams’s symptoms was not likely, even if he did undergo a 

hardware-removal surgery in the future, and that Williams had reached maximum 

medical improvement. Dr. Cenac noted that Williams has “post-surgical 

scarring . . . in the midline [of Williams’s back] near the incision.” Dr. Cenac also 

testified, however, that based on the July 2011 functional capacity evaluation and 

Williams’s responses on the Oswestry pain questionnaire, which were consistent 

with “patients that are either bed bound or exaggerating their symptoms,” Williams 

was employable in the future. He ultimately concluded that “hardware removal” 

would be appropriate and that Williams “was employable with a medium level of 

 

3 Dr. Boudreaux stated that the $760,000 figure represents the midpoint of a 

“reasonable” range of lost future earning capacity figures, with $668,000 at the 

lower end and $853,000 at the upper end. 
13

physical activity based upon the findings noted on the [functional capacity 

evaluation], subsequent to extensive vocational rehabilitative efforts.” 

At a pre-trial hearing and in written objections, Williams objected to the 

admissibility of two pieces of evidence offered by Diamond Offshore. Williams 

first objected to evidence that Diamond Offshore had, “during the first couple of 

years of [Williams’s] disability,” paid Williams approximately eighty-five percent 

of his former salary, totaling over $260,000. Williams argued that these payments 

were part of a Diamond Offshore procedure “whereby the employee is paid a 

portion of his salary as an ‘advance’ against any future settlement 

agreement . . . and then given the remaining 15% to ‘make him whole’ when he 

recovers from his disability and returns to work.” Williams argued that evidence of 

these payments was inadmissible pursuant to Texas Rule of Evidence 408. 

Williams stated that he would be willing to stipulate that Diamond Offshore was 

entitled to a “post-verdict credit or offset of these payments.” 

Diamond Offshore argued that the payments did not constitute a settlement, 

that it did not make the payments in attempt to persuade Williams to release any 

claims against it, and that these payments were part of its standard procedure 

whenever an employee suffered an injury. Diamond Offshore’s counsel stated that 

the company would “advance wages on [the employee’s] salary to the point that 

they receive 85 percent of whatever they were making before they got hurt.”
14

Diamond Offshore argued that these payments were not classified as a settlement, 

but rather as earnings upon which Williams paid taxes. 

The trial court ruled that the evidence was inadmissible. The court agreed to 

give Diamond Offshore a corresponding offset in the judgment, if the jury found in 

favor of Williams, but it refused to let Diamond Offshore present evidence that it 

had made these payments to Williams.

Williams also sought to exclude a post-incident surveillance video of him 

taken in 2012, nearly five years after his injury occurred, by an investigator hired 

by Diamond Offshore. Williams stated:

Along with showing him driving and walking in several locations, 

these surveillance videos contain views of the plaintiff engaged in 

various activities near and around his residence, including performing 

various repairs on his four-wheeler vehicle, operating his miniexcavator to clear some debris near his home, and certain activities 

involving some bending and lifting, activities which he has never 

denied, under oath or otherwise, that he has attempted and was able to 

perform (nor are inconsistent with his medical limitations). 

He argued that the video has no impeachment value because he has never asserted 

that he cannot do any of the activities depicted in the video. Williams further 

argued that the prejudicial effect of the video far outweighed any probative value 

that it might have and that the video could not serve as substantive evidence “since 

such a minimal and random view of plaintiff’s life cannot possibly be a fair 

representation of his disabilities or abilities since his injury.”
15

Diamond Offshore argued that the video consisted of surveillance footage 

taken on three consecutive days in December 2012 and depicted Williams “with 

evident ease to be seen bending, stooping, reaching, and throwing as he manually 

picks up debris on his property and puts it in the back of a trailer. He gets back in 

his trailer, hauls it off. He’s apparently disposing of stuff.” In the video, Williams 

operates machinery “for an extended period of time” and repairs vehicles.

Diamond Offshore argued that the video was admissible for both impeachment 

purposes and as substantive evidence relating to Williams’s post-incident physical 

condition. 

The trial court ruled that Diamond Offshore “can keep [the video] in your 

reserve bank for impeachment, and that’s it. So, if [Williams] opens the door, then 

we’ll take a look at it.” Diamond Offshore requested that the trial court revisit this 

ruling on several occasions throughout the proceedings, including during Dr. 

Rodriguez’s testimony and after cross-examination of Williams, both of which, 

Diamond Offshore’s counsel argued, contradicted the contents of the video. The 

trial court refused to admit the surveillance video. 

The jury found that both Diamond Offshore and Williams were negligent 

and that Diamond Offshore failed to furnish a seaworthy vessel. The jury 

apportioned 30% fault to Diamond Offshore, 60% fault to the vessel Ocean 

Lexington, and 10% fault to Williams. The jury awarded Williams $500,000 in 
16

past physical pain and mental anguish, $3.4 million in future physical pain and 

mental anguish, $557,793 in loss of past earning capacity, $2,254,275 in loss of 

future earning capacity, $250,000 in past physical impairment, $1.7 million in 

future physical impairment, $250,000 in past disfigurement, $325,000 in future 

disfigurement, and $440,000 in future medical care expenses. 

The trial court entered judgment on the verdict in favor of Williams. The 

final judgment stated:

Plaintiff Willie David Williams recover from Defendants Diamond 

Offshore Services Limited and Diamond Offshore Services Company, 

jointly and severally, the total sum of $8,512,068 as actual damages 

(which represents the total recovery less the ten percent (10%) of fault 

attributed to Willie David Williams by the jury, then less an offset of 

$197,293 reduction for the net advances paid by Defendants) . . . . 

The trial court also awarded Williams pre- and post-judgment interest. This appeal 

followed.

Exclusion of Evidence

In its first issue, Diamond Offshore contends that the trial court erroneously 

excluded a post-incident surveillance video taken by an investigator hired by 

Diamond Offshore that depicted Williams performing various outdoor activities 

over the course of three days in December 2012. In its second issue, Diamond 

Offshore contends that the trial court erroneously excluded evidence that, for 

several years before trial, it paid Williams 85% of his pre-incident salary.
17

A. Standard of Review

The admission or exclusion of evidence “is committed to the trial court’s 

sound discretion.” Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000). 

A trial court abuses its discretion when it acts without reference to any guiding 

rules or principles. U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 

2012); City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995). A trial 

court does not abuse its discretion simply because the appellate court would have 

ruled differently under the same circumstances. See E.I. DuPont de Nemours & 

Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). We uphold a trial court’s 

evidentiary ruling “if there is any ground for doing so, even if the trial court did not 

rely upon the proper ground and even if the defendant did not assert a proper 

ground for excluding the evidence.” K.J. v. USA Water Polo, Inc., 383 S.W.3d 

593, 610 (Tex. App.—Houston [14th Dist.] 2012, pet. denied); see also State Bar 

of Tex. v. Evans, 774 S.W.2d 656, 658 n.5 (“[E]ven where the trial court errs in 

sustaining a specific untenable objection, an appellate court should uphold the 

ruling if there is any other ground for doing so, even though not urged below.”).

For the exclusion of evidence to constitute reversible error, the complaining 

party must demonstrate (1) that the trial court committed error, and (2) that the 

error was reasonably calculated to, and probably did, cause rendition of an 

improper judgment. Hahn v. Love, 394 S.W.3d 14, 34 (Tex. App.—Houston [1st 
18

Dist] 2012, pet. denied). “[A] successful challenge to evidentiary rulings usually 

requires the complaining party to show that the judgment turns on the particular 

evidence excluded or admitted.” Able, 35 S.W.3d at 617. We generally do not 

reverse a judgment based on an erroneous ruling on evidence admissibility when 

the evidence in question is cumulative and is not controlling on a material issue 

dispositive to the case. Id. In determining if the excluded evidence probably 

resulted in the rendition of an improper judgment, we review the entire record. Id.; 

Hahn, 394 S.W.3d at 35.

B. Exclusion of Surveillance Video

Diamond Offshore first challenges the trial court’s decision to exclude its 

proffered post-incident surveillance video, an eighty-minute video that depicted 

Williams performing various outdoor tasks, such as using his excavator to haul 

debris and working on a vehicle, over the course of three days in December 2012. 

It argues that the trial court erroneously determined that the surveillance video 

could be used solely for impeachment purposes and that, instead, the video was 

admissible as both substantive evidence relevant to the extent of Williams’s

injuries and as impeachment evidence. Williams, however, contends that the 

prejudicial effect of the “heavily edited” video substantially outweighs any 

probative value, and it is, therefore, inadmissible under Rule 403. He also argues 

that Diamond Offshore did not establish the authenticity of the video, as required 
19

by Texas Rule of Evidence 901(a). See TEX. R. EVID. 901(a) (“The requirement of 

authentication or identification as a condition precedent to admissibility is satisfied 

by evidence sufficient to support a finding that the matter in question is what its 

proponent claims.”). Finally, he argues that this evidence was cumulative. See

TEX. R. EVID. 403.

Texas courts have admitted post-accident surveillance videos depicting the 

activities of injured plaintiffs in personal injury cases, but no Texas case addresses, 

as a specific point on appeal, the admissibility and propriety of this evidence. See 

Huston v. United Parcel Serv., Inc., 434 S.W.3d 630, 642 (Tex. App.—Houston 

[1st Dist.] 2014, pet. denied) (considering post-accident surveillance video in 

factual sufficiency review of damages award; appellant plaintiff did not challenge 

admissibility of video on appeal); Nat’l Freight, Inc. v. Snyder, 191 S.W.3d 416, 

424 (Tex. App.—Eastland 2006, no pet.) (upholding exclusion of six-second 

portion of surveillance video in which plaintiff made obscene gesture; appellant 

did not challenge trial court’s admission of remainder of video); Dunn v. Bank-Tec 

S., 134 S.W.3d 315, 329 & n.7 (Tex. App.—Amarillo 2003, no pet.) (addressing 

whether surveillance video had been properly authenticated and stating that 

appellants waived any argument that prejudicial effect of video substantially 

outweighed video’s probative value); Home Ins. Co. v. Garcia, 74 S.W.3d 52, 56–

57 (Tex. App.—El Paso 2002, no pet.) (considering surveillance video in factual 
20

sufficiency review; plaintiff did not challenge admissibility of video). Both 

Diamond Offshore and Williams thus rely on case law from other jurisdictions to 

support their contentions.

In Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993), the 

Fifth Circuit considered whether a post-accident surveillance video constituted 

substantive evidence in addition to merely impeachment evidence in a personalinjury case. The Fifth Circuit defined “substantive evidence” as evidence that “is 

offered to establish the truth of a matter to be determined by the trier of fact.” Id.

at 517. The plaintiff, Chiasson, claimed that as a result of her injury she had 

suffered “great physical and mental pain and anguish,” and she sought damages to 

“loss of enjoyment from the activities of her normal life.” Id. The court therefore 

noted that “the severity of [Chiasson’s] pain and the extent to which she has lost 

the enjoyment of normal activity are among the key issues a jury must decide in 

calculating her damages.” Id. The court concluded that evidence that “would tend 

to prove or disprove such losses” should be considered “substantive” evidence. Id. 

The court also noted that Chiasson had testified at trial that she is able to engage in 

her usual daily activities, but that she cannot do so “for too long of a period of 

time” before she starts to feel pain. Id. The court doubted whether the surveillance 

video at issue “discredits her testimony at all,” but still ultimately held that, not 
21

only did the video constitute substantive evidence, instead of merely impeachment 

evidence, but that the importance of the video was “obvious.”4

The Fifth Circuit affirmed its reasoning in Chiasson in Baker v. Canadian 

National/Illinois Central Railroad, 536 F.3d 357, 369 (5th Cir. 2008). After the 

his accident, Baker alleged that his injuries and post-accident limitations included 

“the inability to count money, make change, or be in crowds.” Id. Illinois Central 

offered a surveillance video that depicted Baker “spending long periods of time in 

casinos,” and Baker argued, among other things, that the video “informed jurors 

that he engaged in activities many people consider immoral.” Id. The Fifth Circuit 

held, pursuant to Chiasson, that this video constituted substantive evidence. Id. 

The court also noted that the issue of Baker’s “post-accident quality of life was 

hotly disputed” and that Baker’s witnesses “testified in details regarding the 

allegedly severe post-accident limitations Baker face[d].” Id. The court ultimately 

concluded that the probative value of the video that contradicted Baker’s witnesses 

“weighs heavily against a hypothetical juror’s moral aversion to gambling.” Id. 

 

4

The precise issue in Chiasson was whether the trial court erred in admitting the 

surveillance video solely as impeachment evidence when, pursuant to Federal 

Rule of Civil Procedure 26(b)(1), which allows the “non-disclosure of evidence to 

be used solely for impeachment,” Zapata had not disclosed the existence of the 

video to Chiasson pre-trial. 988 F.2d 513, 514 (5th Cir. 1993). Because the 

surveillance video at issue constituted substantive evidence, instead of simply 

impeachment evidence, the Fifth Circuit held that the trial abused its discretion 

“by allowing non-disclosure and admitting the tape into evidence.” Id. at 518.
22

The court held that the trial court did not abuse its discretion by admitting the 

surveillance video. Id.

In James v. Carawan, 995 So.2d 69 (Miss. 2008), the Mississippi Supreme 

Court addressed whether the trial court abused its discretion in excluding a postaccident surveillance video of the plaintiff, who had injured her back, riding 

rollercoasters at a Six Flags amusement park. In concluding that the trial court did 

abuse its discretion in excluding the video, the court noted that “[a] reasonable 

juror could conclude that the Six Flags video casts doubt on the severity of 

Carawan’s injuries,” that “a reasonable juror might conclude that the Six Flags 

video has a tendency to show that Carawan may not have been as weakened or 

vulnerable as she indicated to her doctors or as her medical treatments suggest,” 

that “[t]he video also could have been relevant to whether or not she truly had been 

unable to work,” that the video was relevant to the question of appropriate 

damages for pain and suffering, and that “this video might shed doubt upon the 

merits of Carawan’s case as a whole.” Id. at 76. The court concluded,

We already have determined that the video was relevant. Aside from 

its damaging effect to Carawan’s case, we are unable to determine 

how its admission would unfairly prejudice Carawan. A reasonable 

juror could understand that the video calls into question the severity of 

Carawan’s injuries prior to July 29, 2003, and therefore challenged the 

necessity of at least some of her medical expenses, the validity of her 

lost wages, the extent of her pain and suffering, and the legitimacy of 

her entire claim.
23

Id. at 77–78; see also Zegarelli v. Hughes, 814 N.E.2d 795, 798 (N.Y. 2004) 

(holding that trial court committed reversible error in excluding post-accident 

videotape of injured plaintiff shoveling snow after plaintiff testified that he took 

“two or three swipes” of parking area with shovel); Sweet v. Pace Membership 

Warehouse, Inc., 795 A.2d 524, 528 (R.I. 2002) (reversing trial court’s decision to 

exclude post-accident surveillance video and directing trial court, on remand, to 

evaluate admissibility of video under Rule 403).

Williams, in contrast, cites cases from other jurisdictions holding that the 

trial court did not abuse its discretion in excluding post-accident surveillance 

videos. In one line of cases from Illinois, the appellate court, in concluding that 

the danger of unfair prejudice outweighed the probative value of the surveillance 

videos, focused on the facts that the videotapes were edited and only showed the 

plaintiff outside, “giv[ing] the impression that [the] plaintiff’s activity is constant” 

and that the plaintiff “can sustain labor-intensive activities over a period of time 

without rest or without experiencing pain.” See Carroll v. Preston Trucking Co., 

812 N.E.2d 431, 435–36 (Ill. Ct. App. 2004); see also Donnellan v. First Student, 

Inc., 891 N.E.2d 463, 478 (Ill. Ct. App. 2008) (relying on Carroll to affirm

exclusion of surveillance video and stating, “Despite defendant’s contention that 

[the videographer] testified that the video was not edited to demonstrate only the 

period plaintiff was working and that he filmed every moment that he could, the 
24

video leaves the impression that plaintiff was working for extended periods of 

time”). Williams also cites Quinn v. Wal-Mart Stores, Inc., 774 So. 2d 1093, 1098 

(La. Ct. App. 2000), for the proposition that the trial court properly excludes a 

post-accident surveillance video when the injured plaintiff testifies that she can 

perform the activities depicted in the video and when the video does “not fairly 

indicate whether [the plaintiff] did experience pain after engaging in these 

activities.” See also Orgeron v. Tri State Road Boring, Inc., 434 So. 2d 65, 68–69 

(La. 1983) (noting, in holding that workers’ compensation carrier had “no 

reasonable basis for terminating benefits” even though videotape existed of 

claimant performing physical labor at construction sites after injury, that “evidence 

in the form of moving pictures or videotapes must be approached with great 

caution because they show only intervals of the activities of the subject, they do 

not show rest periods, and do not reflect whether the subject is suffering pain 

during or after the activity”).

Here, Diamond Offshore offered a surveillance video that depicts Williams 

performing various activities outside his house, including using his excavator to 

haul away scrap materials and repairing a vehicle. The hour-long video contains

footage obtained over three consecutive days in December 2012. The video only 

reflects Williams’s outside activities and does not reflect what he did when he was 

not outside or whether he was in pain as a result of his activities. During his 
25

testimony, Williams acknowledged that he could perform the activities depicted in 

the surveillance video, although he emphasized that he could only engage in these 

activities for short periods of time before he felt pain and that he would be in pain 

later after engaging in these activities. Williams’s friends and family members 

testified to essentially the same facts.

A trial court’s evidentiary rulings are committed to the court’s “sound 

discretion,” and we must uphold the court’s ruling if there is any basis for doing so. 

See Able, 35 S.W.3d at 617; USA Water Polo, 383 S.W.3d at 610. Here, the trial 

court did not state a reason for its ruling; instead, it merely stated at the pre-trial 

hearing that Diamond Offshore could “keep [the surveillance video] in your 

reserve bank for impeachment” and that, if Williams “opens the door, then we’ll 

take a look at it.” When Diamond Offshore offered the video after Dr. Rodriguez’s 

testimony, the court stated, “Ruling stands the same,” and when Diamond Offshore

offered the video after cross-examination of Williams, the court stated, “No, not 

admitting,” without providing a rationale. No Texas case squarely addresses the 

issue present here—the admissibility of post-accident surveillance videotapes as 

either substantive or impeachment evidence—and cases from other jurisdictions 

have emphasized the trial court’s discretion in ruling on the admissibility of such 

evidence, upholding trial courts’ rulings admitting post-accident surveillance 

videos and upholding rulings excluding this evidence. In the absence of authority 
26

binding on this Court, we cannot conclude that the trial court abused its discretion 

in excluding the post-accident surveillance video offered by Diamond Offshore. 

The trial court could have reasonably determined that the proffered video, which 

contained clips from three different days of surveillance edited together into one 

continuous hour-long video and depicted Williams performing activities that he 

admitted that he could do, albeit with pain later, created an impression that 

Williams could engage in physical activity for long periods of time without 

needing rest and without apparent pain and thus that the prejudicial effect of the 

video outweighed the video’s probative value. See Donnellan, 891 N.E.2d at 478; 

Carroll, 812 N.E.2d at 435–36; Quinn, 774 So. 2d at 1098; see also USA Water 

Polo, 383 S.W.3d at 610 (stating that we uphold trial court’s evidentiary rulings “if 

there is any ground for doing so, even if the trial court did not rely upon the proper 

ground and even if the defendant did not assert a proper ground for excluding the 

evidence”). We therefore hold that the trial court did not abuse its discretion in 

excluding the surveillance video proffered by Diamond Offshore.

We overrule Diamond Offshore’s first issue.

C. Exclusion of Salary Payments

Diamond Offshore also challenges the trial court’s exclusion of evidence 

that, for several years pre-trial, Diamond Offshore paid Williams 85% of his preincident salary, totaling over $260,000. Diamond Offshore argues on appeal that 
27

excluding this evidence left the erroneous impression with the jury that Williams 

had no income to provide for his family during the years between the incident and 

the trial, that Diamond Offshore “left [Williams] high and dry during his 

recovery,” and that Diamond Offshore did not care about its employees, which 

caused the jury to use the compensatory damages awards to punish Diamond 

Offshore. The trial court excluded the evidence but noted on the record that, if the 

jury returned a verdict in Williams’s favor, the court would offset the damages 

award by the amount that Diamond Offshore had previously paid to Williams. The 

trial court ultimately discounted the award to Williams by $197,253 as a result of 

“net advances” paid to Williams by Diamond Offshore.

Assuming, without deciding, that the trial court erred when it excluded 

evidence that Diamond Offshore had paid Williams 85% of his pre-incident salary, 

Diamond Offshore has not demonstrated that this exclusion constitutes reversible 

error. See Able, 35 S.W.3d at 617 (holding that successful challenge to evidentiary 

ruling generally requires complaining party to show judgment turned on excluded 

evidence); Hahn, 394 S.W.3d at 34 (stating that, to be reversible, error must be 

reasonably calculated to, and probably did, cause rendition of improper judgment). 

As Diamond Offshore acknowledges, the trial court offset the ultimate damage 

award in the final judgment to account for the amounts paid to Williams. 
28

Diamond Offshore’s arguments of harm as it relates to the exclusion of these

payments are, however, entirely speculative. There is no indication in the record 

that the jury inflated one of the damages awards in an attempt to punish Diamond 

Offshore for a misperception that Diamond Offshore abandoned Williams and left 

him in a precarious financial situation prior to trial. Instead, the record reflects that 

Williams underwent two surgeries as a result of the incident, that he suffers from 

“constant” back pain and likely will for the rest of his life, that he suffers from 

progressive “foot drop,” that he can no longer engage in outdoor activities and 

activities with his daughter due to his chronic pain, and that he will likely be 

unable to work even in “light” or sedentary jobs in the future due to his pain, all of 

which, as we explain further below, justifies the jury’s damages awards. We 

conclude that Diamond Offshore has not demonstrated that the trial court’s 

exclusion of evidence that Diamond Offshore paid Williams 85% of his preincident salary “was reasonably calculated to, and probably did, cause rendition of 

an improper judgment.” Hahn, 394 S.W.3d at 34. We hold that the trial court did 

not commit reversible error by excluding this evidence.

We overrule Diamond Offshore’s second issue.

Sufficiency of the Evidence of Damages

In its third issue, Diamond Offshore challenges the sufficiency of the 

evidence to support the jury’s awards for past and future disfigurement, future 
29

medical care expenses, loss of future earning capacity, future physical pain and 

mental anguish, and future physical impairment.5

Texas courts of appeals have the power to review the excessiveness of 

damage awards and to order remittitur in Jones Act cases. Maritime Overseas 

Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1998). We must make our own 

“detailed appraisal of the evidence bearing on damages.” Id.

The standard of review for an excessive-damages complaint in a Jones Act 

case is factual sufficiency of the evidence. Id. In reviewing a challenge to the 

factual sufficiency of the evidence, we “must consider and weigh all of the 

evidence and should set aside the judgment only if it is so contrary to the 

overwhelming weight of the evidence as to be clearly wrong and unjust.” Arias v. 

Brookstone, L.P., 265 S.W.3d 459, 468 (Tex. App.—Houston [1st Dist.] 2007, pet. 

denied) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam)); see 

also Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (same). The 

fact-finder is the sole judge of the witnesses’ credibility, and it may choose to 

believe one witness over another, and a reviewing court may not impose its own 

opinion to the contrary. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 

2005); Arias, 265 S.W.3d at 468; see also Lanier v. E. Founds., Inc., 401 S.W.3d 

 

5 We note that Diamond Offshore does not challenge on appeal the sufficiency of 

the evidence to support the jury’s finding that Diamond Offshore was negligent 

and that its negligence “was a cause, in whole or in part,” of Williams’s injuries.
30

445, 455 (Tex. App.—Dallas 2013, no pet.) (“When we review the evidence, we 

may not reweigh it and set aside the verdict merely because we feel a different 

result is more reasonable.”). Because it is the fact-finder’s province to resolve 

conflicts in the evidence, we assume that it resolved all such conflicts in favor of 

the verdict if reasonable people could do so. City of Keller, 168 S.W.3d at 819; 

Arias, 265 S.W.3d at 468.

The jury generally has great discretion in considering the evidence relevant 

to the issue of damages. See Lanier, 401 S.W.3d at 455 (citing McGalliard v. 

Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986)); Tagle v. Galvan, 155 S.W.3d 510, 

518 (Tex. App.—San Antonio 2004, no pet.) (“In assessing personal injury 

damages, the jury has wide latitude in determining the amount of the award.”). 

“The process of awarding damages for amorphous, discretionary injuries such as 

pain and suffering is inherently difficult because the alleged injury is a subjective, 

unliquidated, nonpecuniary loss.” Id. The element of pain and suffering is “not 

subject to precise mathematical calculations or objective analysis and is 

particularly within the province of the jury to resolve and to determine appropriate 

amounts.” Id. “Once the existence of some pain, mental anguish and 

disfigurement has been established, there is no objective way to measure the 

adequacy of the amount awarded as compensation, which is generally left to the 

discretion of the fact finder.” Figueroa v. Davis, 318 S.W.3d 53, 62 (Tex. App.—
31

Houston [1st Dist.] 2010, no pet.) (quoting Pentes Design, Inc. v. Perez, 840 

S.W.2d 75, 80 (Tex. App.—Corpus Christi 1992, writ denied)).

Issues such as physical impairment are necessarily speculative, “and it is 

particularly within the jury’s province to resolve these matters and determine the 

amounts attributable thereto.” Lanier, 401 S.W.3d at 455; Figueroa, 318 S.W.3d 

at 62 (“The amount of damages awarded for pain and suffering and disfigurement 

are necessarily speculative and each case must be judged on its own facts.”). To 

recover damages for physical impairment, “the effect of any physical impairment 

must be substantial and extend beyond any pain, suffering, mental anguish, lost 

wages or diminished earning capacity.” Doctor v. Pardue, 186 S.W.3d 4, 18 (Tex. 

App.—Houston [1st Dist.] 2005, pet. denied) (quoting Golden Eagle Archery, Inc. 

v. Jackson, 116 S.W.3d 757, 772 (Tex. 2003)). The jury may consider “loss of 

enjoyment of life” as a factor in assessing damages for physical impairment. Id.

Courts have defined disfigurement as “that which impairs the appearance of 

a person, or that which renders unsightly, misshapen or imperfect, or deforms in 

some manner.” Figueroa, 318 S.W.3d at 64 (quoting Pardue, 186 S.W.3d at 18). 

The fact that the disfigurement, such as a scar, is located underneath clothing and 

may not generally be visible, does not render disfigurement non-compensable. See 

Wal-Mart Stores, Inc. v. Tinsley, 998 S.W.2d 664, 673 (Tex. App.—Texarkana 

1999, pet. denied) (holding that “small” surgical scar located on plaintiff’s lower 
32

back and hip that was covered by clothing was compensable). Future 

disfigurement is “necessarily speculative,” and “there is no mathematical yardstick 

by which one can measure damages for it.” Figueroa, 318 S.W.3d at 64 (quoting 

Tri-State Motor Transit Co. v. Nicar, 765 S.W.2d 486, 494 (Tex. App.—Houston 

[14th Dist.] 1989, no writ)). Proof of additional scarring or deforming is not 

required to recover damages for future disfigurement, although it may be 

considered as a factor in determining damages. Hopkins Cnty. Hosp. Dist. v. Allen, 

760 S.W.2d 341, 344 (Tex. App.—Texarkana 1988, no writ). Recovery for future 

disfigurement includes recovery for future embarrassment caused by the 

disfigurement. Id.

The Texas Supreme Court has defined “mental anguish” as a “relatively high 

degree of mental pain and distress” that is “more than mere disappointment, anger, 

resentment or embarrassment.” Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 

(Tex. 1995). To survive a sufficiency challenge, the plaintiff must have introduced 

direct evidence of the nature, duration, and severity of his mental anguish, 

establishing a substantial disruption in his daily routine. Id.; Finley v. P.G., 428 

S.W.3d 229, 235 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (“[A]n award of 

mental anguish damages may be supported by some evidence of ‘a high degree of 

mental pain and distress’ that is ‘more than mere worry, anxiety, vexation, 

embarrassment, or anger.’”). If compensable mental anguish has been established, 
33

fixing the exact amount of damages is “generally left to the discretion of the fact 

finder,” although the amount must be “fair and reasonable compensation.” Finley, 

428 S.W.3d at 235 (quoting Figueroa, 318 S.W.3d at 62). The injured party can 

establish mental anguish through his own testimony explaining how he felt and 

how the injury disrupted his life. Tagle, 155 S.W.3d at 519.

Loss of future earning capacity is the plaintiff’s diminished capacity to earn 

a living after trial. Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21, 35 (Tex. 

App.—Tyler 2003, pet. denied). Proof of lost earning capacity is always uncertain 

and is left largely to the jury’s discretion. Rigdon Marine Corp. v. Roberts, 270 

S.W.3d 220, 232 (Tex. App.—Texarkana 2008, pet. denied). To support an award 

of damages for loss of future earning capacity, the plaintiff must introduce 

evidence sufficient to allow the jury to reasonably measure earning capacity in 

monetary terms. Tagle, 155 S.W.3d at 519. The plaintiff can introduce evidence 

of past earnings; his stamina, efficiency, and ability to work with pain; the 

weaknesses and degenerative changes that will naturally result from the plaintiff’s 

injury; and the plaintiff’s work-life expectancy. Id. The plaintiff must introduce 

some evidence that he had the capacity to work prior to the injury and that his 

capacity was impaired as a result of the injury. Id.

Similarly, courts have held that the award of future medical expenses rests 

within the jury’s sound discretion. Rosenboom Mach. & Tool, Inc. v. Machala, 
34

995 S.W.2d 817, 828 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). The jury 

can make its determination of the amount of future medical expenses based on the 

injuries suffered, the medical care rendered before trial, the progress toward 

recovery under the treatment received, and the condition of the injured party at the 

time of trial. Id. To sustain an award of future medical expenses, the plaintiff must 

present evidence establishing that, in all reasonable probability, future medical care 

will be required and the reasonable cost of that care. Id.; see Nat’l Freight, Inc. v. 

Snyder, 191 S.W.3d 416, 422 (Tex. App.—Eastland 2006, no pet.). The plaintiff is 

not required to establish such costs through expert testimony. See Snyder, 191 

S.W.3d at 426. Because “‘an award of future medical expenses . . . lies largely 

within the factfinder’s discretion,’ appellate courts are especially hesitant to disturb 

a fact-finder’s conclusion in this regard.” Finley, 428 S.W.3d at 234; Antonov v. 

Walters, 168 S.W.3d 901, 908 (Tex. App.—Fort Worth 2005, pet. denied) 

(“Because issues such as life expectancy, medical advances, and the future costs of 

products and services are, by their very nature, uncertain, appellate courts are 

particularly reluctant to disturb a jury’s award of these damages.”).

A. Disfigurement

Diamond Offshore contends that legally insufficient evidence supports the 

jury’s award of $575,000 for past and future disfigurement, or, in the alternative, 
35

that the award is excessive. Diamond Offshore contends that no witness testified 

about any external scarring and thus no evidence supports the disfigurement award.

As Williams points out, however, Diamond Offshore’s own medical expert, 

Dr. Cenac, testified that, as a result of his two back surgeries, Williams has some 

“post-surgical scarring” near the incision on his back. The fact that this scar is in a 

location of the body that is usually covered up by clothing does not preclude a 

disfigurement award. See Tinsley, 998 S.W.2d at 673 (holding that evidence of 

“small” surgical scar located on plaintiff’s back and hip constituted compensable 

disfigurement award).

Furthermore, “disfigurement” is not limited to scarring, but instead 

constitutes anything that “impairs the appearance of a person, or that which renders 

unsightly, misshapen or imperfect, or deforms in some manner.” Figueroa, 318 

S.W.3d at 64 (quoting Pardue, 186 S.W.3d at 18). Multiple witnesses, including 

Williams himself, testified that he now suffers from “foot drop” due to nerve 

damage from the injury, which has impaired his ability to extend several of his toes 

and raise his right foot when he walks. As a result, his foot “drags” when he 

walks, and he walks with a noticeable limp. Dr. Barrett testified that Williams’s

“foot drop” problem is “progressive.” We conclude that this testimony supports the 

jury’s decision to award damages for past and future disfigurement. See USX Corp. 

v. Salinas, 818 S.W.2d 473, 489 (Tex. App.—San Antonio 1991, writ denied) 
36

(holding that sufficient evidence supports disfigurement award when plaintiff 

presented evidence that he “cannot stand straight” and, due to injury, walks “with a 

flat-foot stiff gait”).

Diamond Offshore also cites three cases for the proposition that the 

disfigurement award in this case was “too high by an order of magnitude,” but, in 

each of the three cases Diamond Offshore cited, the appellate court simply 

affirmed the damages award. See Allen, 760 S.W.2d at 344 (affirming $50,000 

future-disfigurement award); Nw. Mall, Inc. v. Lubri-Ion Int’l, Inc., 681 S.W.2d 

797, 804 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.) (affirming 

$25,000 past-disfigurement award and $30,000 future-disfigurement award); 

Pedernales Elec. Co-op., Inc. v. Schulz, 583 S.W.2d 882, 886 (Tex. Civ. App.—

Waco 1979, writ ref’d n.r.e.) (affirming $4,000 disfigurement award). The fact 

that the appellate courts in each of these cases did not find a smaller disfigurement 

awards to be excessive does not support the conclusion that the disfigurement 

awards in this case—$250,000 in past disfigurement and $325,000 in future 

disfigurement—are excessive. Awarding damages for future disfigurement is 

“necessarily speculative,” and “there is no mathematical yardstick by which one 

can measure damages for it.” Figueroa, 318 S.W.3d at 64. Due to the speculative 

nature of a disfigurement damages award, courts generally leave the adequacy of 

the amount of the award to the discretion of the jury. See id. at 62. We conclude 
37

that the evidence supporting past and future disfigurement is not so weak as to 

render the disfigurement awards excessive or manifestly unjust.

B. Future Medical Expenses

Diamond Offshore next contends that the jury’s award of $440,000 for 

future medical expenses is excessive because evidence of future medical expenses 

that Williams “could or might incur is no evidence of recoverable expenses that he 

‘will require in the future.’”

Dr. Barrett, Williams’s treating physician, testified that he does not have any 

future surgeries scheduled for Williams, and Williams testified that he is “really 

not wanting to have any more surgery” because none of his doctors can promise 

him that another surgery will help him. However, Dr. Rodriguez testified that 

Williams was a candidate for further surgery to remove the screws and rods in his 

back, and Dr. Cenac, Diamond Offshore’s medical expert, testified that this 

hardware-removal surgery “would be appropriate.” Dr. Rodriguez testified that 

medical bills for this surgery could range from $80,000 to $100,000. Williams 

testified that he saw his doctor three weeks before trial and that his doctor wanted 

to perform exploratory surgery on his back, although he had not committed to 

having any additional surgeries. Dr. Rodriguez also testified that Williams will 

need daily pain medication and physical therapy for the rest of his life, and he 

estimated that costs for this care would range from $5,000 to $10,000 per year. 
38

The jury thus had evidence before it that, even though Williams’s preference 

at the time of trial was not to have another surgery, a hardware-removal surgery 

was medically indicated and “would be appropriate.” Williams was not required to 

establish his future medical expenses with absolute certainty; instead, he needed to 

present evidence “that in all reasonable probability, future medical care will be 

required and the reasonable cost of that care.” See Machala, 995 S.W.2d at 828. 

The jury, in its sound discretion to award damages for future medical expenses, 

could have reasonably concluded that, given the degenerative nature of Williams’s

conditions, Williams, “in all reasonable probability” will require pain medication 

and physical therapy for the remainder of his life and may elect to undergo further 

surgery to alleviate his pain. See id. (holding that award of future medical 

expenses “rests within the sound discretion of the jury”). We hold that the jury’s 

award of $440,000 in future medical expenses was not excessive.

C. Lost Future Earning Capacity

Diamond Offshore next contends that the jury’s award of $2,254,275 for lost 

future earning capacity is excessive because it rests on the assumption that 

Williams will never be able to work again, and factually insufficient evidence 

supports that assumption.

Dr. Kenneth McCoin, Williams’s economic expert, testified that he arrived 

at his calculation of $2,254,475 for Williams’s loss of future earning capacity 
39

based on the assumption that Williams will not return to work in the future. Dr. 

Barrett testified unequivocally that Williams could not return to his pre-incident 

offshore work, a conclusion with which all of the other experts agreed. Dr. Barrett 

further testified that, as a result of his chronic pain, Williams likely would not be 

able to maintain any type of gainful employment, even sedentary-type work, and 

he also stated that he considered Williams to be “totally disabled.” Dr. Rodriguez 

testified that Williams might be able to perform “light duty” work, but he also 

provided the caveat that this was true only if “the tolerance to [Williams’s pain] 

allows him to function through a whole day of work.” Thomas Meunier, a 

vocational rehabilitation counselor, testified that even if Williams could secure 

employment, he likely would not be able to maintain it given his chronic pain. In 

reaching his conclusion, Meunier considered the functional capacity evaluation 

that Williams had undergone, which indicated that Williams could perform 

“medium” level work, but he ultimately discounted it because it was two years old 

and evidence indicated that Williams’s condition had worsened since that 

evaluation. Williams himself testified that he tries to do work around his property, 

including using his excavator and repairing vehicle, and he can engage in these 

activities to an extent, but it hurts him to do so, and he doubted his ability to 

perform a full day of work every day. He did not believe that any employer would 
40

hire him given his pain levels and the pain medication and muscle relaxers that he 

must take. 

To support its contention that factually insufficient evidence supported the 

assumption that Williams could not return to work, Diamond Offshore focuses on 

the functional capacity evaluation, Williams’s testimony that he could still work 

but that it hurt him to do so, and Williams’s testimony concerning activities that he 

undertakes even after the incident. As stated, however, Williams presented the 

testimony of three expert witnesses—two doctors and a vocational rehabilitation 

counselor—that Williams would probably not be able to sustain employment at 

even a light or sedentary level due to his chronic pain problems. We conclude that 

factually sufficient evidence supports the assumption that Williams will not be able 

to return to the workforce and thus supports Dr. McCoin’s calculation of 

$2,254,475 in loss of future earning capacity damages. See Rigdon Marine Corp., 

270 S.W.3d at 232 (holding that loss of future earning capacity is “always 

uncertain” and is “left largely to the jury’s discretion”).

D. Future Pain and Mental Anguish

Diamond Offshore also challenges the jury’s award of $3.4 million in 

damages for future pain and mental anguish, focusing primarily on the fact that the 

jury was instructed that it could only award damages for the “portion of the 

plaintiff’s condition resulted from the aggravation” of a pre-existing condition, and 
41

the medical evidence indicated that Williams, at the time of the incident, already 

had a “diseased” back.

Diamond Offshore is correct that the record includes evidence that Williams 

had injured his back prior to the incident at issue in this case and that the MRI 

Williams underwent when he first saw Dr. Barrett after the incident in January 

2008 revealed degenerative problems with the discs in his back. However, Dr. 

Barrett testified that the January 2008 incident on the Ocean Lexington caused all 

of Williams’s current medical problems, including his foot drop and ongoing back 

pain, and necessitated both of the surgeries that Williams has needed since the 

incident. Specifically, Dr. Barrett testified:

I think all of [Williams’ current medical conditions] are caused by the 

injury that [Williams] described to me occurring 10 days or so before 

I first saw him. He certainly undeniably had preexisting degenerative 

changes but, also, in my opinion, undeniably there was a significant 

damage that led to the evaluations which led to the micro discectomy 

which led to basically a disruption of his back mechanics which led to 

our decision to try to improve those with the fusion. And all of this, 

in my opinion, relates back to this [in]jury. 

Williams testified that he gets pain injections “all the time,” that his back “hurts 

constantly,” and that his foot drop is “progressively getting worse and worse.” 

Both Dr. Barrett and Meunier characterized Williams’s pain as “chronic.” Several 

of Williams’s friends and family members testified about seeing Williams in pain 

after the incident. Multiple witnesses, including Williams’s wife, testified that he 

is “depressed” and “miserable” since the incident, that he has experienced a loss of 
42

self-worth, and that Williams hardly ever sleeps through the night and instead 

sleeps “all day.” 

As it did in attacking the disfigurement award, Diamond Offshore compares 

the future pain and mental anguish award in this case to the award in other personal 

injury cases and argues that “[i]n light of other verdicts,” the award in this case is 

“plainly excessive.” Diamond Offshore contends that when an award of future 

pain and mental anguish exceeds $1 million, “the injury is usually catastrophic.” 

Once again, however, in all of these cases, the appellate courts found the damage 

awards to be within the jury’s wide discretion in awarding damages and affirmed

the awards. Diamond Offshore cites no cases in which an appellate court found the 

future pain and mental anguish award to be excessive. Simply because an 

appellate court affirmed a $1 million future pain and mental anguish award as not 

excessive in a “catastrophic” injury case does not mean that the jury’s award in this 

case is excessive or falls outside the jury’s wide discretion in awarding damages. 

See, e.g., Rentech Steel, L.L.C. v. Teel, 299 S.W.3d 155, 165–67 (Tex. App.—

Eastland 2009, pet. dism’d) (affirming, among other awards, award of $1 million 

for future pain and suffering and award of $300,000 for future mental anguish in 

case in which sixteen-year-old boy’s hands were “degloved” following accident 

with steel roller machine).
43

Here, Williams presented evidence that he is in constant pain, that his 

condition, particularly his “foot drop,” is getting worse, that he is likely to be in 

pain for the rest of his life, that he suffers from depression and a loss of self worth 

following the incident, and that he can no longer engage in the activities he used to 

enjoy to the extent and with the frequency that he used to engage in them before 

the incident. We conclude that the jury’s award of $3.4 million for future pain and 

mental anguish is not excessive. See Figueroa, 318 S.W.3d at 62 (noting that 

damages for pain and suffering are “necessarily speculative” and that each case 

should be judged on own facts); Tagle, 155 S.W.3d at 518 (stating that pain and 

suffering is “not subject to precise mathematical calculations or objective analysis 

and is particularly within the province of the jury to resolve and to determine 

appropriate amounts”).

E. Future Physical Impairment

Finally, Diamond Offshore challenges the jury’s $1.7 million award for 

future physical impairment as excessive.

One of the primary considerations in awarding damages for future physical 

impairment is the plaintiff’s loss of enjoyment of life. See Pardue, 186 S.W.3d at 

18. Here, Williams explicitly testified:

I am, in fact, hurt real bad. I hurt on a daily [basis]. . . . I know I feel 

terrible. Just doing the little things I do hurts me. I can’t enjoy life 

like I used to. I mean, I was always active. I’ve had motorcycles and 

race cars and boats and jet skis. I was [into] everything. You know, a 
44

lot of that is—I still—still do those things—or some of those things 

but not—not at the extent I used to. 

Williams testified that he tries to keep up with his favorite activities, such as 

working with his excavator, repairing vehicles, hunting, being outdoors with his 

daughter, and going to his daughter’s softball games, but that it causes him pain to 

engage in these activities and that he can no longer do these activities like he used 

to do. Several of his friends and family members testified and related specific 

examples, and they also testified concerning the changes in Williams’s personality 

as a result of being unable to participate in and enjoy life the way he used to do. 

Williams also presented medical testimony that his condition is likely to get 

progressively worse as he ages, further limiting his ability to be active.

Testimony at trial indicated that Williams, who was forty-four at the time of 

trial, was expected to live another thirty-four to thirty-five years. Diamond 

Offshore has again cited case law in which plaintiffs with “debilitating injuries” 

did not receive as high an award for future physical impairment as Williams did, 

but, again, these cases do not support the proposition that the jury’s award in this 

case was excessive. We conclude that, in this case in which there is clear evidence 

that Williams cannot live his life the way that he used to, the jury’s award of $1.7 

in damages for future physical impairment is not excessive.

We overrule Diamond Offshore’s third issue.
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Conclusion

We affirm the judgment of the trial court.

Sherry Radack

Chief Justice 

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

Justice Keyes, dissenting.