Farmers Tex. Cnty. Mut. Ins. Co. v. Pagan

• Decision Date: 16 December 2014
• Docket Number: NO. 14–13–00048–CV,14–13–00048–CV
• Citation: 453 S.W.3d 454
• Parties: Farmers Texas County Mutual Insurance Company, Appellant v. Ashlee Elizabeth Pagan, Appellee
• Court: Texas Court of Appeals

453 S.W.3d 454

Farmers Texas County Mutual Insurance Company, Appellant

v.Ashlee Elizabeth Pagan, Appellee

NO. 14–13–00048–CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinions Filed December 16, 2014.

Mitchell Wayne Templeton, Beaumont, TX , for Appellant.

Jon B. Burmeister, B. Adam Terrell, Beaumont, TX, for Appellee.

Panel consists of Justices McCally, Busby, and Donovan

OPINION

J. Brett Busby, Justice

AppellantFarmers Texas County Mutual Insurance Company appeals from a final judgment following a jury trial in which the only contested issues were the cause and extent of the personal injuries appelleeAshlee Elizabeth Pagan suffered in a car wreck.Farmers contends the trial court abused its discretion when it excluded evidence regarding an incident Pagan had with a horse, which Farmers alleged was a potential cause of the personal injuries at issue here.Farmers also argues the evidence regarding the cause and extent of Pagan's injuries is factually insufficient to support the judgment.Because we conclude that Farmers did not establish that the trial court abused its discretion when it excluded Farmers' proffered evidence and that the admitted evidence is factually sufficient to support the judgment, we overrule Farmers' issues and affirm the trial court's judgment.

Background

In March 2008, Pagan's truck struck another car that had turned in front of her.The impact was hard enough that Pagan's truck bounced off the other car and struck a fence in a nearby parking lot.Pagan alleged that the crash injured various parts of her body, including her neck and left shoulder.Pagan filed suit alleging the driver of the other car was negligent and caused the crash that resulted in her injuries as well as property damage to her truck.Seeking coverage under her underinsured motorist insurance policy, Pagan added Farmers as a defendant in the lawsuit.After settling with the other driver, the case proceeded to a jury trial in which the only disputed issues were the cause and the extent of Pagan's alleged personal injuries.¹

Before trial, the court granted Pagan's motion in limine requiring Farmers to approach the bench before referencing in any manner (1) any injuries Pagan may have suffered after the 2008 car crash, or (2) a specific incident in April 2009 when a horse spooked as Pagan was leading it into a barn, pushing her down.

At trial, Pagan testified about the car crash and said that she started feeling the physical effects of the accident the same evening when her neck, back, and shoulder started hurting.Pagan also testified that she went to the hospital the day after the crash, where she reported the problems she was having with her neck, back, and left foot as a result of the crash.²The hospital's records confirmed Pagan's report of back, neck, and collarbone pain and documented point-tenderness and limited range of motion in her back and neck.Pagan testified that she continued having pain in her neck and shoulder and that she reported those issues to personnel at the office of Dr. Faseler, her family doctor, during most, if not all, of her subsequent appointments even though those reports are not noted in her records.The records do reflect, however, that Dr. Faseler prescribed pain medication for Pagan.Pagan also testified regarding the negative impact the injuries she suffered during the crash have had on her life activities.

Pagan's boyfriend, Josh McFarland, confirmed that Pagan began experiencing a great deal of pain and discomfort in her neck and shoulder the evening of the crash.McFarland also testified regarding the negative impact the injuries caused by the crash have had on Pagan's ability to participate in her normal activities.

Finally, the jury heard from Dr. Carl Beaudry, an orthopedic surgeon treating Pagan.Dr. Beaudry testified that Pagan sought treatment for longstanding pain in her neck and left shoulder.Dr. Beaudry further testified that Pagan had a degenerative disk in her neck as well as chronic bursitis, tendinitis, and a rotator cuff problem in her left shoulder.Because there had been no history of shoulder problems before the crash, Dr. Beaudry opined that Pagan's current problems with her shoulder were caused by the crash.Dr. Beaudry further opined that, based on reasonable medical probability, Pagan would need arthroscopic shoulder surgery in the near future.In Dr. Beaudry's opinion, the purpose of that surgery would be to treat problems caused by the March 2008 crash, and it would cost between $20,000 and $25,000.

Before the case was submitted to the jury, Farmers made an offer of proof in an effort to admit five items of evidence it argued were related to the April 2009 horse incident.First, Farmers sought to introduce Pagan's answer to Interrogatory 13, which asked her to list any injuries she sustained during the prior ten-year period as well as any medical providers she saw as a result.Pagan answered that she“went to Diagnostic Health in Port Arthur, Texas in April of 2009 after I fell off a horse.”Farmers argued it should be allowed to read that answer to the jury because the horse incident was at least partially responsible for the injuries Pagan claimed were caused entirely by the March 2008 crash.

Second, Farmers sought the admission of Pagan's April 2009 medical records from Diagnostic Health, Port Arthur.The Diagnostic Health records documented x-rays taken of Pagan's shoulders and spine in response to a referral by Dr. Faseler, her family doctor, soon after the 2009 horse incident.In addition to reporting Pagan's spine and shoulders were normal, the records contained the following: “Clinical History: Trampled by horse, contusions.”

Third, Farmers sought to introduce additional excerpts of her records from Dr. Faseler.Farmers sought to admit these excerpts because they did not show Pagan complaining about a sore neck and shoulder until April 7, 2009, which was after the horse incident.Farmers argued the proffered medical records should be admitted because they were relevant to its contention that the 2009 horse incident was at least partially responsible for the injuries Pagan claimed were the exclusive result of the March 2008 crash.

Fourth, Farmers cross-examined Pagan outside the presence of the jury as part of its offer of proof.Farmers asked Pagan about the notation in the Diagnostic Health records that she had been trampled by a horse.While Pagan admitted Dr. Faseler had referred her to Diagnostic Health for x-rays in the wake of the 2009 horse incident, she denied that she had been trampled.Instead, she explained that the 2009 horse incident occurred when she was walking her horse inside a barn.According to Pagan, the horse spooked as she was trying to lead it through a narrow door; the horse then darted forward, pushed her, and she fell down.Pagan denied that the horse stepped on her during the incident.Pagan admitted she went to see her family doctor after the incident at the insistence of her parents.When asked if she had any explanation why the Diagnostic Health records described the incident as being trampled by a horse, Pagan offered that the physician's assistant she frequently saw in Dr. Faseler's office often did not write a lot of things down during her visits and that the physician's assistant had probably heard something about a horse accident and mistakenly assumed Pagan had been trampled by a horse.Pagan also admitted that five months after the 2009 horse incident she returned to Diagnostic Health for an MRI of her left shoulder.Finally, Pagan testified that she did not believe the 2009 horse incident was related to the injuries she was complaining about in her lawsuit against Farmers.

Fifth, Farmers offered additional deposition testimony by Dr. Beaudry, her treating orthopedic surgeon.Farmers offered this additional deposition testimony as one entire package.³The proffered deposition testimony included Dr. Beaudry's concessions that he had not seen any medical records containing a reference to Pagan being trampled by a horse—even though such records were in his own files—and he was not otherwise aware that she had been trampled by a horse.He also testified that he had no reason to question the accuracy of the Diagnostic Health records noting that Pagan had been trampled by a horse.Dr. Beaudry said this would be an important piece of a patient's medical history that he would want to know before treating that patient.In addition, Dr. Beaudry said he would want to know when the horse trampling occurred relative to the 2008 car crash.Dr. Beaudry also testified it is “possible” that a horse trampling its rider “could cause an injury similar to the one that Ms. Pagan is complaining about and seeking treatment for.”Finally, Dr. Beaudry testified that if Pagan had been trampled by a horse, it would be prudent for a doctor to perform the same type of diagnostic testing that she had been undergoing to confirm whether the trampling had injured her.

In addition to the questions related to the 2009 horse incident, the proffered deposition testimony also included questions regarding other injuries and illnesses experienced by Pagan unrelated to either the 2008 crash or the 2009 horse incident.These included a 2003 car accident in which Pagan injured a finger.They also included questions regarding a separate 2003 horse incident in which Pagan was bucked off a horse and suffered contusions.The questions revealed that Pagan was sent for a CAT scan that discovered she had a defective kidney which led to her having kidney surgery.The questions also revealed that Pagan had difficulty with anxiety and depression and had been prescribed medication to address those issues.The proffered deposition questions also addressed medical records from M.D. Anderson from August 2009; these lacked any mention that Pagan was experiencing neck and shoulder issues but did reveal that she was to receive a “colposcopy.”

Pagan objected that there was no...