1

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-21-00008-CV

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IN RE CHASE TALBOT

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Original Proceeding

136th District Court of Jefferson County, Texas

Trial Cause No. D-199,314

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MEMORANDUM OPINION

Chase Talbot seeks mandamus relief from a post-verdict order granting a

motion for a mistrial. Talbot challenges the facial validity of the order setting aside 

a jury verdict and granting a mistrial and argues the record fails to support the trial 

court’s rationale for granting a mistrial. We conditionally grant mandamus relief.1

1 The Real Party in Interest, Gabriel Pearce, argues we should dismiss the 

mandamus petition because Talbot failed to diligently pursue a mandamus remedy. 

The Texas Rules of Appellate Procedure place no time limit on filing a petition for 

a writ of mandamus, but we may deny a mandamus petition under the equitable 

doctrine of laches if the relator fails to diligently pursue mandamus relief. See 

Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (orig. proceeding); 

In re Allstate Prop. & Cas. Ins. Co., No 09-20-00031-CV, 2020 WL 1879659, at *1 

(Tex. App.—Beaumont Apr. 16, 2020, orig. proceeding) (mem. op.). Generally, 

establishing laches requires showing an unreasonable delay and a good faith and 
2

Underlying Facts and Procedural History

The Real Party in Interest, Gabriel Pearce, sued Talbot for personal injuries 

sustained in a motor vehicle accident that occurred in December of 2015. Prior to 

trial, on June 11, 2019, Pearce filed a motion to exclude the testimony of Talbot’s 

expert, Dr. Anne Hayman, a board certified radiologist and a neuroradiologist. Dr. 

Hayman has over thirty years of experience interpreting images from patients with 

brain and spinal trauma, and she is currently a Professor Emeritus at MD Anderson. 

Prior to trial, Pearce obtained the oral deposition of Dr. Hayman. Pearce argued in 

his motion to exclude that Dr. Hayman’s opinions and the conclusions in her report2

detrimental change in position because of the delay. In re Laibe Corp., 307 S.W.3d 

314, 318 (Tex. 2010) (orig. proceeding). In this case, Talbot provided a reasonable 

explanation for the delay in seeking mandamus relief, and Pearce has not shown that 

the delay resulted in a detrimental change in his position. We conclude that the 

record in this case does not warrant the application of the doctrine of laches to the 

requested mandamus relief. 

2 Dr. Hayman’s written report described her professional background, 

education, and work history, identified the images she reviewed, and stated her 

opinions, which in part were as follows:

I have reviewed the radiology reports of the chart radiologists 

and the images of Mr. Pearce’s cervical and lumbar spine. They confirm 

the presence of degenerative spinal changes which are routinely seen in 

an active 31 year old m[a]n. There is no swelling, bleeding or fracture 

to indicate spinal trauma.

If there were spinal root compressions, each of them would 

produce a specific, immediate pattern of sensory and motor signs which 

could be traced back to a compressed sensory and/or motor roots. 

Without a matching neurological exam there is no evidence of 

traumatic injury.

I have rendered these opinions with a reasonable degree of 

medical certainty. I have [] relied on my training and experience in 
3

and in her deposition testimony were inadmissible. Pearce objected to Dr. Hayman’s 

testimony to the extent “it goes beyond the opinions” in her report. Pearce also 

objected to Dr. Hayman’s opinions and conclusions and argued she should be 

excluded as an expert witness because her opinion and conclusions were not relevant 

and not based on reliable foundations and the probative value of her testimony was 

outweighed by its prejudicial effect. Providing forty-eight specific examples from 

Dr. Hayman’s deposition testimony, Pearce argued such testimony was deficient, 

she lacked knowledge of matters discussed in her written report, her opinions and 

conclusions were not based on an independent understanding of what happened, and 

her opinions were based on inadequate data, were not adequately explained, and 

exposed too great an analytical gap between her methodology and her opinions.

Talbot argued that Pearce failed to make even a prima facie challenge to Dr. 

Hayman’s qualifications, and that plaintiff failed to sufficiently challenge the 

reliability of her opinions pertaining to Pearce or her reading of his MRIs. Talbot 

suggested that, considering the timing of the motion, he would tender Dr. Hayman’s 

testimony to the court outside the presence of the jury and the trial court could make 

its ruling at that time and assess her qualifications and the reliability of her opinions. 

Talbot further noted Dr. Hayman’s opinions were based on her experience and 

formulating this report. I reserve the right to alter my opinions should 

additional information become available. Should you require further 

assistance please feel free to contact me.
4

training in interpreting MRIs and imaging studies, and on her review of the actual 

images taken on Pearce, that Pearce’s complaints about Dr. Hayman were 

conclusory and failed to establish a basis for exclusion of her testimony, and that her 

findings and opinions about Pearce having degenerative changes were not unusual 

and were consistent with the many notations made by the radiologist who read the 

MRI at the hospital. The trial court deferred ruling on the motion to exclude Dr. 

Hayman. The case went to trial before a jury.

Jury Trial

On June 17, 2019, the trial court called the matter for a jury trial, and on June 

18, 2019, Plaintiff and Defendant rested their cases. During the trial, the defendant 

did not contest that his negligence caused the accident, and the Court granted the 

Plaintiff a Directed Verdict that Defendant's negligence proximately caused the

occurrence, and that Plaintiff was not contributorily negligent. Plaintiff verbally 

objected at the close of the defense expert’s testimony and moved for a mistrial based 

upon the alleged improper and prejudicial testimony from the defense expert. The 

Court took the matter under advisement, and the case was submitted to the jury. The 

Jury returned its verdict on June 20, 2019. The sole issue submitted to the jury 

concerned damages.

Question No. 1 and the jury’s response thereto was as follows:
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What sum of money, if paid now in cash, would fairly and reasonably 

compensate GABRIEL PEARCE for his injuries, if any, that resulted 

from the occurrence in question?

Consider the elements of damages listed below and none other. 

Consider each element separately. Do not award any sum of money on 

any element if you have otherwise, under some other element, awarded 

a sum of money for the same loss. That is, do not compensate twice for

the same loss, if any. Do not include interest on any amount of damages 

you find.

Do not include any amount for any condition existing before the 

occurrence in question, except to the extent, if any, that such other 

condition was aggravated by any injuries that resulted from the 

occurrence in question.

Answer separately, in dollars and cents, for damages, if any.

a. Medical expenses paid or incurred in the past

Answer: $33,200

b. Medical care and expenses that, in reasonable probability, 

GABRIEL PEARCE will sustain in the future.

Answer: $20,000

c. Physical pain sustained in the past

Answer: $0

d. Physical pain that, in reasonable probability, GABRIEL

PEARCE will sustain in the future.

Answer: $0

e. Mental anguish sustained in the past

Answer: $0

f. Mental anguish that, in reasonable probability, GABRIEL

PEARCE will sustain in the future.

Answer: $0

g. Physical impairment sustained in the past

Answer: $0

h. Physical impairment that, in reasonable probability, GABRIEL 

PEARCE will sustain in the future.

Answer: $0
6

During the trial, the defense argued that Pearce’s injuries and spinal problems 

were preexisting conditions from prior accidents and injuries, and that he had 

degenerative changes in his spine that were already present before this accident. 

Medical records that were admitted during the trial showed that several years before 

the accident at issue in this suit Pearce had prior treatment for head, neck, and back 

pain. In April of 2008, Pearce went to the hospital complaining of head pain, neck 

pain, mid back pain and low back pain following a motor vehicle accident where he 

was run off the road and his vehicle hit a tree or a pole. Other medical records showed 

that in January of 2010, he was involved in another motor vehicle collision and he 

was treated at the emergency room for neck pain and vertebral tenderness. The 

medical records from 2010 indicated he complained of neck pain and low back pain

at the hospital. In January of 2011, Pearce went to the emergency room again, 

complaining that he was hurting from the middle of his back upward, and that his 

arms and neck were hurting. In February of 2012, Pearce was seen at the emergency 

room complaining of mid and low back pain, and the records indicated he had been

walking on the road and he was hit by a car.

At trial, Pearce testified that he had neck and lower back pain and that he had 

received medical treatment in 2015 for his condition. Pearce’s complaints of pain 

are referenced in copies of his medical records from medical providers of treatment 

he received after the 2015 accident, and those records were submitted to the jury. 
7

Dr. Romero’s video deposition was played for the jury. Dr. Romero testified that he 

found that Pearce had cervical and lumbar spine symptoms consistent with stenosis 

at C5-6, C6-7 and L5-S1 and that Pearce’s symptoms and stenosis are consistent 

with the MRI findings, and Dr. Romero testified that Pearce needed a two-level 

surgery of the cervical spine, requiring removal of two discs and a fusion and

insertion of a plate and screws. The estimated recovery time would be nine to twelve 

months. On cross examination, Dr. Romero agreed that disc space narrowing like 

that seen on the images of Pearce’s cervical and lumbar spine can be a degenerative 

finding and the mild desiccation he observed could be consistent with degenerative 

processes or the accident. Dr. Romero did not review any pre-accident medical 

records and Pearce had told Romero he had no significant back or neck problems 

before the accident.

When Pearce testified at trial, he also agreed that during his deposition, he had 

been asked whether he had ever suffered any injury to his neck before the December 

5, 2015 accident, and he agreed that he said “No.” Pearce also agreed that during his 

deposition, he denied ever having been to a doctor complaining of any sort of neck 

pain before the December 5, 2015 accident. Pearce agreed that he only told his 

treating doctors in this case about the 2015 accident with Talbot, and he did not tell 

them about the other accidents or about the prior problems of neck and arm pain.
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Prior to allowing the defense to call Dr. Hayman to testify, the trial court 

allowed the plaintiff’s attorney to conduct a voir dire of Dr. Hayman outside the 

presence of the jury. Dr. Hayman stated that in preparing her report she reviewed a 

cervical MRI without contrast and a lumbar MRI without contrast prepared 

approximately one month post-accident and the radiology reports for those images. 

She agreed she had no patient history or emergency room records. She noted that the 

first radiologist reported degenerative diseases that included osteophytes, disc bulges 

and herniations, and mild decreased signal indicative of early dehydration and 

desiccation but found no fractures, dislocations, epidural hematoma, or neoplastic 

process. Dr. Hayman added that in her deposition she stated that the degenerative 

changes visible on Pearce’s MRIs can be seen on anyone of that age. According to 

Dr. Hayman, factors supporting a conclusion that the films showed degenerative disc 

disease include the lack of blood loss or blood collection in the surrounding soft 

tissues, and no fractures or malalignment. Dr. Hayman indicated that Pearce’s 

complaint of pain indicates possible musculoskeletal injury, but he had no injury that 

caused a fracture or dislocation, or any indication in the imaging associated with bad 

or permanent cervical trauma. In her report, Dr. Hayman stated that she saw no 

traumatic changes but there were mild degenerative changes present. The trial court 

warned the defendant that any opinion Dr. Hayman offered must be based on specific 

information that pertained to Pearce and more than mere theoretical speculation. The 
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trial court took under advisement Pearce’s objections to Dr. Hayman’s opinion 

testimony regarding degenerative disc disease, which had been disclosed in her 2018 

report, and Pearce’s complaint that Talbot had failed to respond to certain discovery 

requests in July 2017.

The trial court stated on the record:

THE COURT: Well, certainly to the extent that the witness is going to 

testify about general matters relating to medicine or radiology or things

within the medical field, certainly the witness is qualified to be able to 

do that.

[Plaintiff’s Counsel]: Could I ask the Court about some specific 

opinions? For instance, on one hand she’s saying there’s mild 

degenerative changes but then she says there’s no -- there’s no 

traumatic changes as if they’re mutually exclusive. If you can’t see 

trauma, then it must be degeneration. And I submit to the Court that’s 

not even the job of a radiologist to identify trauma because they -- that’s 

what doctors do with clinical examinations and history. And, so, if she’s 

going to testify about degenerative changes, that’s different than saying 

no trauma.

THE COURT: Well, my second part of what I was about to address was 

to the extent that this expert was going to opine any opinions as to the 

plaintiff or the plaintiff’s medical condition or status, I don’t know if

it’s sufficient to be able to render an opinion to say merely that it is 

possible. I think there’s got to be an opinion sufficient to say that what 

is probable and supported by the evidence and based upon reasonable

medical probability as to what the condition would be or what the cause 

of the condition is and then those opinions would need to be supported 

by the appropriate factual matters relating specifically to this plaintiff.

...

[Plaintiff’s Counsel]: I think I understand the Court’s ruling, your 

Honor. We won’t require anything further from a voir dire perspective.
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THE COURT: All right. What I’ll do is any opinion that is given as to 

the plaintiff, again, needs to be based on specific information that 

pertains to this plaintiff and needs to be an opinion that was more than

mere theoretical speculation. Would need to be one that is -- that can 

be properly articulated within a degree of medical probability. To have 

a person come in and say it theoretically could be this is not going to be 

sufficient. It needs to be something that is able to diagnose this within 

sufficient medical probability that said this is the condition and this is 

why and would not necessarily constitute mere conjecture.

So, I’ll allow you some leeway, Counselor, to be able to try and 

present that testimony. However, understand I’m basing these 

statements upon the answers in the voir dire examination that I’ve had. 

A lot of the responses to the question about these conditions, you know, 

related to it’s possible or it could be. And, again, I think for the opinion 

to be reliable it needs to have some matter of specificity or degree of 

probability to be of assistance to the jury. 

The other thing I’m going to instruct the witness as to any other 

physicians that may have treated this patient, certainly any statement as 

to that witness’ reputation or -- within the medical community, I don’t

know that it would be appropriate. Certainly if the -- if there’s an 

opinion that the physician has rendered that the expert disagrees with, 

they’ll be able to say that. But, certainly, I don’t find it to be appropriate 

to say that this physician has a reputation in the community to overread 

charts or to underread charts or to make whatever type of mistakes. I 

think that would be an improper impeachment of that physician and 

also possibly constitute -- probe into the realm of character evidence 

that, again, would not be relevant as to the physician. So, those matters 

we do not need to discuss in front of the jury.

With that being said, is there anything else that we need to 

address with this witness?

[Plaintiff’s Counsel]: No, your Honor.

[Defendant’s Counsel]: No.

THE COURT: Let’s bring in the jury.
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Dr. Hayman then testified before the jury. She described her professional, clinical,

and academic experience for the jury. She explained that she had held academic or 

clinical positions with Harvard Medical School, the National Institutes of Health, 

Baylor College of Medicine, Ben Taub Hospital, the University of Texas, and her 

current position is professor emeritus at MD Anderson Hospital.

In this case, she was hired by the defendant to review and read the images and 

provide her opinions. She explained that when she reads cervical and lumbar MRI 

“films” each consists of over a hundred images that are captured on the computer 

and it allows her to then see all angles of the spine. Dr. Hayman explained that on 

two occasions she read approximately 150 cervical spine images and 100 or 150 

lumbar spine images from Pearce’s 2016 MRIs. She prepared a report summarizing 

her findings where she compared the findings from the reading of an MRI done by 

radiologist, Dr. Farolan, with her opinions. Dr. Hayman stated that radiologists do 

not typically examine patients or review their other medical records and she did not 

review Pearce’s. She did not examine or speak with Pearce, but she indicated that 

typically a radiologist never actually sees or examines the patient.

She agreed that she based her opinions on reasonable medical probability.

According to Dr. Hayman, Dr. Farolan had noted that Pearce’s cervical MRI 

revealed straightening of the lordotic curvature. While that condition could possibly 

indicate a muscle spasm, it is normal in ten to fifteen percent of people and she would 
12

not expect to see muscle spasms one month post-accident. Dr. Farolan’s report also 

noted osteophytes anteriorly at C5-6 and C7, which she testified indicated 

degenerative changes, a slow process due to age causing neither stenosis nor pinched 

nerves. Dr. Farolan noted no fracture, dislocation, epidural hematoma, or neoplastic 

process, which Dr. Hayman testified meant he did not see any trauma. According to 

Dr. Hayman, all of Dr. Farolan’s findings described what she calls “degenerative”

changes. Dr. Hayman testified that the presence of degenerative changes in Pearce’s 

spine at thirty-one years of age was likely attributable to activity and, as indicated 

by the presence of changes to the bone throughout the spine, due to the aging process 

rather than trauma.

According to Dr. Hayman, throughout the lumbar spine Dr. Farolan found

degenerative changes that he referred to as disc herniation. She disagreed with Dr. 

Farolan’s finding of stenosis. Dr. Hayman found only mild degeneration and she 

found an annular fissure rather than a tear resulting from trauma. Dr. Farolan did not 

use the word “aging” in his report, but according to Dr. Hayman, what Dr. Farolan 

described as osteophytes and hypertrophic changes of the facet joints are 

degenerative changes. Dr. Farolan reported moderate to marked left inferior neural 

foraminal stenosis and slight right inferior foraminal stenosis. According to Dr. 

Hayman, the presence on both sides of the spine indicated a degenerative rather than 

a traumatic condition. She did not detect any traumatic injury in the images of 
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Pearce’s spine. Dr. Hayman noted that trauma can cause wear and tear that in 

reasonable medical probability will appear in an MRI taken years later but not as

soon as one month post-accident.

Under cross-examination, Dr. Hayman admitted that Dr. Farolan was the

treating radiologist and had a doctor-patient relationship with Pearce while she had 

been paid $1,300 to testify for the defense, and she agreed she owed no ethical, 

moral, or legal duties to Pearce. She agreed she had not seen Pearce’s records from 

the emergency room or from his treating physician. Dr. Hayman noted that her

experience in this case had caused her to possibly reconsider agreeing to review xrays without clinical records. She admitted that in her deposition she had agreed with 

plaintiff’s counsel that it was unfair to make opinions without knowing the patient’s 

clinical information. Although she prefers to clinically correlate the findings with 

the patient’s symptoms, she did not do so in this case. Her opinion was a radiological 

determination that the x-rays showed degeneration and not trauma.

Dr. Hayman stated that Pearce’s imaging did not reveal a condition for which 

Pearce would need surgery, but she expressed no opinion about whether his 

condition requires surgery, and she was unaware of the recommendations of Pearce’s 

treating physicians. Dr. Hayman disagreed with the portion of the chiropractor’s 

records that stated, “These findings correlate to the recent auto accident and are new 

and non-preexisting due to the lack of bone spur and acute bright signals within the 
14

disc material that’s been ruptured.” She admitted that she had not been given any 

records from which she could know what limitations Pearce experienced from the 

accident. Because she did not have the additional records, Dr. Hayman also could 

not offer an opinion about any of his previous conditions.

Dr. Farolan’s report stated that Pearce had a disc herniation at L5-S1, but Dr. 

Hayman said that condition can appear and be asymptomatic in normal people. She 

agreed that she could not prove a person would not be more susceptible to injury 

because that would require proving a negative. Dr. Hayman testified that Pearce’s 

x-rays suggest he should have a weak thumb on the left. She admitted that she was 

testifying without having the deposition or testimony of Pearce’s treating physician.

She was not saying that Pearce did not have neck pain after the accident or that any 

of his medical expenses were not reasonable or necessary. Her opinion was that the 

radiology does not support a traumatic injury. She agreed that as a radiologist, she 

does not treat nerve compression. When pressed on cross about whether she had any 

reason to dispute or doubt Dr. Romero’s opinion that Pearce is in chronic pain, Dr. 

Hayman answered that sitting in the courtroom Pearce did not look like he was in 

pain. She noted that Pearce was not hyperventilating, sweating, or rising to walk 

around. She agreed that she had no information about how he had been feeling in 

2013 through 2015.
15

After Talbot rested, Pearce moved for a mistrial on the ground that Dr. 

Hayman’s personal attacks against plaintiff’s counsel and her non-responsive 

answers and her refusal to make direct answers prejudiced the plaintiff. The trial 

court took the motion under advisement. Talbot’s attorney argued that Pearce waived 

any error by failing to request instructions to disregard. The trial court did not rule 

on the motion for mistrial and the case was submitted to the jury. The jury awarded 

past medical expenses of $33,200 and future medical expenses of $20,000, but 

awarded zero for past or future physical pain, past or future mental anguish, or past 

or future physical impairment.

Post-Trial Request for Ruling on Mistrial

On September 11, 2019, Pearce filed a written motion for a ruling on his oral 

motion for a mistrial. The trial court heard Pearce’s motion for mistrial several 

months after the jury returned its verdict.3 Pearce’s counsel argued that the 

derogatory comments Dr. Hayman made to Pearce’s counsel during her testimony 

caused the jury to dislike the lawyer and disbelieve that Pearce was hurt. Talbot’s 

counsel suggested that Dr. Hayman had been annoyed by a failure of counsel to 

provide all of Pearce’s records before her deposition, which counsel repeatedly 

3 The Jury Verdict was delivered on June 18, 2019. Pearce filed his written 

motion asking the trial court to rule on his verbal motion for a mistrial on September 

11, 2019. On October 28, 2019, the trial court then held a hearing on the request for 

a mistrial.
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pointed out in her deposition and at trial, and Dr. Hayman became frustrated when 

Pearce’s counsel repeatedly returned to the same subject before the jury.

Analysis

“Mandamus is the proper vehicle to review the granting of a mistrial.” In re 

Hightower, 580 S.W.3d 248, 253 (Tex. App.—Houston [14th Dist.] 2019, orig. 

proceeding [mand. denied]). The post-verdict order at issue here operates as the 

functional equivalent of an order granting a motion for a new trial. See id. An order 

granting a new trial must state a legally appropriate reason that is sufficiently specific 

to demonstrate that the trial court derived the articulated reason from the particular 

facts and circumstances of the case at hand. In re Bent, 487 S.W.3d 170, 173 (Tex. 

2016) (orig. proceeding). If the order is facially sufficient, the reviewing court 

conducts a merits review of the bases for the order and grants mandamus relief if the 

record fails to support rationale expressed in the order. Id.

Normally, mistrial is a remedy available only in extreme circumstances 

involving highly prejudicial and incurable errors. In re R.V., No. 07-19-00326-CV, 

2020 WL 897241, at *2 (Tex. App.—Amarillo Feb. 21, 2020, pet. denied) (mem. 

op.). Failure to request the trial court to instruct the jury to disregard the inadmissible 

testimony results in waiver of the alleged error where the instruction would have 

cured the error. State Bar of Tex. v. Evans, 774 S.W.2d 656, 658 n.6 (Tex. 1989). A 

mistrial is not an appropriate remedy for the introduction of inadmissible evidence 
17

before the jury if a limiting instruction to disregard the inadmissible evidence would 

cure the harm. Owens-Corning Fiberglass Corp. v. Malone, 916 S.W.2d 551, 563 

(Tex. App.—Houston [1st Dist.] 1996), aff’d, 972 S.W.2d 35 (Tex. 1998). 

In the trial court’s nine-page order granting Pearce’s motion for a mistrial, the 

trial court does identify specific instances where the trial court concluded that Dr. 

Hayman’s trial testimony “exceed[ed] the scope of her disclosed opinions,” and was 

“improper and/or unfairly prejudicial to” Pearce. Assuming without deciding that 

the trial court’s order is facially sufficient, after conducting a merits review of the 

bases for the order, we find the record fails to support the rationale and conclusions 

expressed in the order.

For example, in the first segment of testimony identified in the order, Pearce’s 

counsel objected that Dr. Hayman had made a derogatory comment about another 

doctor, and Dr. Hayman responded that she had been referring to counsel when she 

stated that if the word “degenerative” appeared in Dr. Farolan’s report, “he” would 

find it and she would have to “give in.” The trial court stated, “Let’s not have any 

other, again, statements that aren’t responses specifically to the questions. Let’s 

move forward.” The trial court did not rule on Pearce’s objection during the trial,

and Pearce did not object or request an instruction to disregard Dr. Hayman’s 

comment to counsel.
18

In the second segment of testimony identified in the order, when Pearce’s 

counsel showed Dr. Hayman the chiropractor’s report and asked her what limitations 

Pearce suffered from the collision, Dr. Hayman remarked that she had not been given 

any records and she wished he would stop asking the same question. Pearce failed 

to object to Dr. Hayman’s comment at trial, and he did not request an instruction to 

disregard.

In the third segment of testimony identified in the order, Dr. Hayman and 

Pearce’s counsel sparred over whether there was evidence that a person is or is not 

more susceptible to injury and Dr. Hayman answered at some point, 

A: Well, there we go again. There we go again. If it’s not ever 

been reported, you want to say that it’s true because there’s no data on 

it but there is data. There’s an absence of data which means it isn’t true. 

But you’ve got me back again with that how do I prove a negative. You 

can’t prove a negative. I can’t prove you’re not cheating on your wife. 

You can’t prove you’re not cheating on your wife.” 

Counsel did not object to the answer but continued:

Q: Ma’am, I’m sorry. That is an offensive comment to me.

A: I’m so sorry.

Q: It’s personal. It’s too personal. I don’t appreciate it.

A: Thank you for taking my apology like a gentleman.

At no time did counsel for Pearce object to the answers or statements in this 

exchange as nonresponsive nor did he request an instruction to disregard.
19

In the fourth segment of testimony cited in the trial court’s order, the trial 

court references testimony where Pearce’s counsel asked Dr. Hayman, “Dr. Romero 

has the opinion that Mr. Pearce is in chronic pain. Do you have any reason to dispute 

that?” Dr. Hayman replied, “Well, just looking at him, he doesn’t look like he’s in 

pain to me.” Pearce’s attorney did not object to the answer. Instead, Pearce’s counsel 

asked, “Beyond that, as a doctor.” Dr. Hayman replied, “As a doctor, I’m looking at 

him. He isn’t hyperventilating. He’s not sweating. He’s not uncomfortable. He 

hasn’t moved from his position in his chair. He hasn’t had to stand up and walk 

around for back pain problems. I mean, looking at him from across the room, I 

wouldn’t guess that I could tell him from anybody else.” Counsel asked, “So you 

would be saying nobody in the room is in any kind of pain?” Dr. Hayman replied, 

“Well, I’m in pain.” Pearce made no contemporaneous objection to any of this 

testimony, nor did he request an instruction to disregard.

Fifth, the trial court listed a segment of the testimony after Pearce’s attorney

mentioned that Dr. Hayman was being paid a thousand dollars per hour to testify, to 

which Dr. Hayman replied, “It’s not worth it.” Pearce made no contemporaneous 

objection to this testimony, nor did he request an instruction to disregard. 

Sixth, the trial court noted that after asking Dr. Hayman on re-direct 

examination if Pearce’s counsel went beyond the scope of Dr. Hayman’s report 

during her three-hour deposition, Talbot’s counsel asked, “Well, did you feel like it 
20

was fair to you to ask you questions that went beyond the scope of your report and 

beyond the scope of the information you were provided?” Dr. Hayman replied, 

“Right. I was only hired to be a radiologist, and I was being beaten and browbeaten 

over that.” Pearce objected, “I object. That’s not -- nobody’s ever complained about 

that.” Pearce’s counsel added “That’s not appropriate.” The trial court did not rule 

on the objection, but admonished Dr. Hayman in front of the jury to refrain from 

making snide remarks, to maintain a professional composure, and to try to limit her 

responses to very specific answers to questions. Dr. Hayman explained to the court 

that in her deposition she had stated that it was unpleasant, and she felt unfairly 

treated when Pearce’s counsel went beyond that scope of her report and asked her to 

provide opinions about matters on which she had not been provided information. 

She agreed that it was fair for her as a radiologist to review MRI images and provide 

her radiological opinions about what those images show.

In its order granting Pearce’s motion for a mistrial, the trial court identified 

nine instances when the trial court instructed Dr. Hayman to limit her answers to the 

specific question asked. In the hearing on Pearce’s motion to exclude Dr. Hayman’s 

testimony, the trial court found Dr. Hayman to be qualified to testify about general 

matters relating to medicine or radiology but noted an expert’s opinion must be 

based on reasonable medical probability and supported by appropriate factual 

matters and it would not be sufficient to render an opinion that is merely possible.
21

The trial court did not, at that time, admonish Dr. Hayman to only answer the 

question she was asked. As the hearing on the admissibility of Dr. Hayman’s 

testimony concluded, the trial court indicated counsel would be allowed leeway but 

indicated the witness should refrain from mentioning another physician’s reputation 

in the community. Again, the trial court did not admonish Dr. Hayward concerning 

confining her answer to the question she was asked. In the course of Dr. Hayman’s 

testimony before the jury, the trial court instructed the witness to give 

straightforward answers to specific questions seven times, but in only one of the nine

instances mentioned in the order granting Pearce’s motion for a mistrial did the trial 

court sustain an objection from Pearce that Dr. Hayman’s answer had been 

nonresponsive to the question asked, and in that instance Pearce did not request an 

instruction from the court telling the jury to disregard the answer.

In the order granting the mistrial, the trial court found that Dr. Hayman 

ignored the trial court’s instructions and admonitions, but during the trial, the trial 

court never instructed the jury to disregard any of Dr. Hayman’s nonresponsive 

answers or testimony. In the order granting the motion for a mistrial, the trial court 

made a specific finding that Dr. Hayman’s improper conduct is attributable entirely 

to Dr. Hayman alone, not to Talbot or his attorney. The trial court also stated in his

order

The Court finds that Hayman’s undisclosed, nonresponsive and/or 

improper testimony referenced herein unfairly prejudiced the Plaintiff, 
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including by the Jury’s award of zero damages, on various elements, 

including for past physical pain, past mental anguish and past physical 

impairment even after the Jury awarded some of Plaintiff’s past and 

future medical expenses, which was necessarily based upon a finding 

that Plaintiff was injured in the collision after Defendant admitted to 

negligence in causing the collision. 

The Court finds that due to Hayman’s improper, prejudicial[,] and

inflammatory testimony referenced herein, the Jury did not correctly 

apply the Plaintiff’s burden of proof of a preponderance of the evidence 

in reaching a verdict of zero damages for past physical pain, past mental 

anguish and past physical impairment, in light of the presence of 

uncontroverted testimony to the contrary. 

In this case, Pearce failed to object and request an instruction to disregard each 

time Dr. Hayman provided a non-responsive answer that the trial court described in 

its order granting the motion for a mistrial. The trial court then notes that the nonresponsive answers “embroil[ed] Plaintiff’s counsel into various confrontations of a 

personal natur[e].” The well-settled law concerning motions for mistrial allows for 

a mistrial only where an instruction to disregard would have been ineffective. See 

Malone, 916 S.W.2d at 563. A trial court abuses its discretion if it grants a new trial 

to a party based upon error that has been waived. See In re Toyota Motor Sales, 

U.S.A., Inc., 407 S.W.3d 746, 760-61 (Tex. 2013); In re United Servs. Auto. Ass’n, 

446 S.W.3d 162, 175 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding), 

mand. denied sub nom, In re Bent, 487 S.W.3d 170 (Tex. 2016).

Here, the trial court made findings in the order granting a mistrial that the 

cumulative effect of Dr. Hayman’s “undisclosed, nonresponsive and/or improper 
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testimony referenced herein unfairly prejudiced the Plaintiff[]” and due to such 

testimony the jury “did not correctly apply the Plaintiff’s burden of proof of a 

preponderance of the evidence in reaching a verdict of zero damages for past 

physical pain, past mental anguish and past physical impairment, in light of the 

presence of uncontroverted testimony to the contrary.” The trial court identified the 

zero-damage awards for non-economic damages as proof that Dr. Hayman’s nonresponsive testimony prevented a proper verdict from being rendered.

We conclude that the trial court improperly applied the applicable law. Juries 

have great discretion in deciding whether the evidence supports an element of 

damages, and the mere fact of injury does not necessarily entitle the plaintiff to 

damages for pain, mental anguish, or physical impairment. In re Tex. Farm Bureau 

Mut. Ins. Co., No. 01-19-00742-CV, 2020 WL 573249, at **3-4 (Tex. App—

Houston [1st Dist.] Feb. 6, 2020, orig. proceeding) (mem. op.). Further, the mere 

fact that the jury did not award non-economic damages after it has already awarded 

medical damages also cannot be a valid basis for granting a new trial. In re Orren, 

533 S.W.3d 926, 930 (Tex. App.—Tyler 2017, orig. proceeding). 

“The amount of evidence necessary to support the jury’s verdict is far less 

than that necessary to warrant disregarding the jury’s verdict.” In re Zimmer, Inc., 

451 S.W.3d 893, 906 (Tex. App.—Dallas 2014, orig. proceeding). In this case, the 

mandamus record provides a valid basis on which the jury could have based its 
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verdict. While we agree that there is some evidence from Pearce, his medical 

records, and his treating physicians showing Pearce complained of pain and further 

that such evidence might have supported a jury finding for such non-economic 

damages, the jury in this case awarded no such damages. The jury could have 

disbelieved Pearce’s testimony or the other evidence and could have found it was 

not credible, or perhaps could have believed that his complaints were related to his 

preexisting conditions and other accidents. See In re Tex. Farm Bureau Mut. Ins. 

Co., 2020 WL 573249, at *3 (“Appellate courts have upheld zero-damage awards 

for physical pain, even when the jury found the plaintiff was entitled to damages for 

past medical expenses, when the jury heard conflicting evidence regarding the cause 

of the injury or alternative explanations for the plaintiff’s pain.”). Further, although 

Pearce’s testifying expert, Dr. Neil Romero, recommended surgery for treatment for 

disc herniations that he believed were caused by the motor vehicle collision with 

Talbot, he also agreed that his opinions were based on Pearce’s denial that he had

any previous history of significant symptoms. And Pearce agreed that he had not 

informed Dr. Romero and his doctors that he had been in other accidents before. The 

jury saw medical records that Pearce had been in several previous accidents, and that 

he had presented in an emergency room on several occasions before 2015

complaining of neck and back pain. Pearce admitted he failed to disclose his prior 

injuries in his deposition.
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The record in this case simply does not support the trial court’s finding that 

Dr. Hayman’s testimony deprived the plaintiff of a fair trial, nor does it support the 

trial court’s conclusion that Dr. Hayman’s non-responsive answers caused the jury 

to “improperly apply the plaintiff’s burden of proof.” The trial court improperly 

applied the “zero damages” rule which has been rejected by this court. See Waltrip

v. Bilbon Corp., 38 S.W.3d 873, 880 n.2 (Tex. App—Beaumont 2001, pet. denied); 

see also In re Allstate Prop. & Cas. Ins. Co., 09-20-00031-CV, 2020 WL 1879659, 

at *4 (Tex. App.—Beaumont Apr. 16, 2020, orig. proceeding) (mem. op.) (grant of 

new trial not supported by record where jury found zero damages for future pain and 

suffering). We conditionally grant Talbot’s petition for a writ of mandamus. A writ 

shall issue only in the event the trial court fails to vacate its order of January 21, 

2020.

PETITION CONDITIONALLY GRANTED.

PER CURIAM

Submitted on February 3, 2021

Opinion Delivered May 20, 2021

Before Kreger, Horton and Johnson, JJ.