Duron v. Merritt

• Decision Date: 17 November 1992
• Docket Number: No. 13-91-561-CV,13-91-561-CV
• Citation: 846 S.W.2d 23
• Parties: Eliza DURON, Appellant, v. Gordon T. MERRITT, Appellee.
• Court: Texas Court of Appeals

Page 23

846 S.W.2d 23

Eliza DURON, Appellant, v. Gordon T. MERRITT, Appellee.

No. 13-91-561-CV.

Court of Appeals of Texas,

Corpus Christi.

Nov. 17, 1992.

Rehearing Overruled Jan. 14, 1993.

Gregory Herrman, Allison & Huerta, Corpus Christi, for appellant.

Van Huseman, David Herrman, Paul Dodson, White, Huseman, Pletcher & Powers, Corpus Christi, for appellee.

Before NYE, C.J., and DORSEY and GILBERTO HINOJOSA, JJ.

OPINION

NYE, Chief Justice.

This is a personal injury case. Eliza Duron sued Gordon T. Merritt for negligence after a vehicle driven by Merritt allegedly struck the vehicle she was driving. The jury found Merritt seventy-five percent negligent for Duron's injuries, and it found Duron twenty-five percent negligent for her own injuries. The jury awarded Duron $5,000 for past damages and $20,000 for future damages. By two points of error, Duron challenges the legal and factual sufficiency of the evidence to support the jury's calculation of damages. We affirm.

By point one, Duron complains that the trial court erred in not granting a new trial because the jury's award of damages was manifestly too small and inadequate and was so against the great weight and preponderance of the evidence that it was manifestly wrong and unjust. In reviewing a point of error asserting that a finding is "against the great weight and preponderance" of the evidence, we must consider and weigh all the evidence, both the evidence which tends to prove the existence of a vital fact as well as evidence which tends to disprove its existence. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Ford Motor Co. v. Nowak, 638 S.W.2d 582, 585 (Tex.App.--Corpus Christi 1982, writ ref'd n.r.e.). So considering the evidence, if a jury finding is so contrary to the great weight and preponderance of the evidence that it is manifestly unjust, the point should be sustained, regardless of whether some evidence exists to support it. Watson v. Prewitt, 159 Tex. 305, 320 S.W.2d 815, 816 (1959); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

In February 1987, Eliza Duron was driving on Highway 77 to her home in Calallen, Texas. As she entered the intersection of Highways 77 and 44, Gordon Merritt pulled his van up in front of her pickup, and the two vehicles collided. Her pickup received a light blow to its back end. Duron alleged that the impact caused her left jaw to hit the steering wheel. After the collision, she drove to the emergency room. A doctor examined her and noted that her left jaw was popping out of its socket and that she complained of pain in that jaw. After the exam, she went home.

Duron allegedly continued to have headaches and pain and a popping noise in her left jaw. Her attorney sent her to see Dr. Hallick, an oral surgeon, concerning her alleged problems. She saw Dr. Hallick in July 1987, and he diagnosed her as having a dislocation of the cartilage between her left jaw joint (TMJ) and the base of her skull. He tried to correct the problem by giving her medication and placing an orthotic device on her teeth. He testified that based on reasonable medical probability, Duron required surgery. He gave her the option to consult Dr. Auvenshine, a specialist in TMJ-nonsurgical treatment.

Duron saw Dr. Auvenshine in September 1988. He made the same diagnosis as Dr. Hallick and testified that when he last saw her in May 1989, there was a strong possibility that surgery was necessary. He did not recommend surgery. He stated that surgery was not a cure and that with or without surgery, she would continue to have pain and discomfort and depend on the orthotic device. Dr. Auvenshine testified, based on reasonable medical probability, that the collision caused her TMJ problem.

Duron testified that prior to the collision, she did not have jaw pain or a popping noise in her jaw. Since the collision, she has had severe jaw pain, and her jaw has gotten worse. She uses a TENS unit and a heating pad, along with relaxation in a noise-free room to relieve the pain. Prior to the collision, she was an active person who enjoyed sports, working out, aerobics, and taking part in outdoor activities with her husband. Her TMJ problem had limited these activities, prevented her from doing her housework, and kept her from spending much time with her husband and children.

Two other witnesses, her husband and her supervisor, testified that she had pain in her jaw.

Dr. Everett Dillman, a business economist and vocational expert, testified that Duron was 25.6 years old and had an average of 54.4 extra years of life. Based on her salary of $19,500 per year, she had a wage-earning capacity of $630,000 for her worklife ¹, or $742,000 to age 70. He also testified that Duron's TMJ problem had reduced her earning capacity roughly thirty-six percent, or $226,000 for her worklife, or roughly $267,000 to age 70. He stated that her present-day value of loss of household services based on ten hours per week was $93,000. He also testified that if she did not have surgery, the value of her future medical care was a little over $15,000, and if she had surgery, the cost of the surgery would be $8,000-$10,000. If she had a total joint replacement, present value of the surgery would be $15,000.

Drs. Hallick and Auvenshine testified that TMJ problems had many causes, including injury, long-standing muscle activity, stress-related problems, severe bite abnormalities, severe jaw malformation, growth and development problems within the jaw joint, and stretching of the mouth. Dr. Hallick testified, based on reasonable medical probability, that assuming Duron did not have pre-existing problems, the collision could have caused her TMJ problem. He also stated that the cause of her TMJ problem could have been consistent with long-term emotional stress. Dr. Auvenshine testified that other predisposing factors were involved in Duron's TMJ problem, such as her high stress levels and a growth and development component. He had recommended that she use a TENS unit to relax the muscles of her neck, shoulders, and jaw joint. He stated that she had not gone through with the TENS therapy.

Duron testified that at the present time (January 1991), she was not taking any prescription medication. She also testified that since the collision, she has not had any surgery on...