Reliance Steel & Aluminum Co. v. Sevcik

• Citation: 268 S.W.3d 65
• Decision Date: 09 March 2006
• Docket Number: No. 13-03-00407-CV.,13-03-00407-CV.
• Parties: RELIANCE STEEL & ALUMINUM COMPANY and Samuel Alvarado, Appellants, v. Michael L. SEVCIK and Cathy S. Loth, Appellees.
• Court: Texas Court of Appeals

268 S.W.3d 65

RELIANCE STEEL & ALUMINUM COMPANY and Samuel Alvarado, Appellants, v. Michael L. SEVCIK and Cathy S. Loth, Appellees.

No. 13-03-00407-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

March 9, 2006.

Rehearing Overruled April 13, 2006.

Chad Michael Forbes, The Wright Law Firm, Thomas C. Wright, Wright, Brown & Close, L.L.P., Houston, Russell H. McMains, Law Offices of Russell H. McMains, Corpus Christi, TX, for Appellants.

David W. Holman, Godwin, Gruber L.L.P., Ruth B. Downes, Holman & Keeling, Houston, Macklin K. Johnson, Hallettsville, TX, for Appellee.

Before Justices HINOJOSA, YAÑEZ, and GARZA.

MEMORANDUM OPINION

Memorandum Opinion by Justice HINOJOSA.

Appellees, Michael L. Sevcik and Cathy S. Loth, sued appellants, Reliance Steel & Aluminum Company and Samuel Alvarado,¹ for damages resulting from an automobile accident. Following a jury trial, the trial court signed a judgment in favor of appellees in the amount of $3,020,000. In four issues, appellants contend (1) the evidence is legally and factually insufficient to support the jury's findings that Cathy Loth sustained damages for (a) past and future medical care, (b) future loss of earning capacity, and (c) future pain and mental anguish; and (2) the trial court erred in admitting evidence of Reliance Steel's annual sales. We modify the trial court's judgment, and as modified, affirm.

A. FACTUAL BACKGROUND

On September 24, 1999, Cathy Loth was a passenger in a pickup truck driven by Michael Sevcik. The pickup truck was traveling westbound on Interstate Highway 10 in the right lane of traffic. At the same time, in the same vicinity, Samuel Alvarado was driving a Reliance Steel tractor trailer rig, also westbound on Interstate Highway 10, in the middle lane. While moving into the right lane of traffic, Alvarado hit the rear of the pickup truck. Sevcik and Loth sued Reliance Steel and Alvarado, claiming Alvarado's negligence caused the injuries they sustained from the accident.

B. STANDARD OF REVIEW

In reviewing the legal sufficiency of the evidence, we view the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex.2005). There is legally insufficient evidence or "no evidence" of a vital fact when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Id. (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497 (Tex.1995)). If the evidence is so weak as to do no more than create a mere surmise or suspicion of its existence, its legal effect is that it is no evidence. Haynes & Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 183 (Tex. 1995).

In reviewing the factual sufficiency of the evidence, we consider, weigh, and examine all the evidence presented at trial. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We set aside a finding for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam).

C. SUFFICIENCY OF EVIDENCE OF PAST AND FUTURE MEDICAL EXPENSES

1. Past Medical Expenses

In their first issue, appellants contend the evidence is legally and factually insufficient to support the jury's finding that Loth incurred past medical expenses of $40,000.00.

To recover for past medical expenses, a plaintiff must prove the actual amount of the expenses incurred and that those expenses were reasonable and necessary. See Doctor v. Pardue, 186 S.W.3d 4, 20 (Tex.App.-Houston [1st Dist.] 2006, pet. denied); Monsanto Co. v. Johnson, 675 S.W.2d 305, 312 (Tex.App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.). A plaintiff can prove reasonableness and necessity of past medical expenses by either (1) presenting expert testimony on the issues of reasonableness and necessity, or (2) presenting an affidavit prepared and filed in compliance with section 18.001 of the Texas Civil Practice and Remedies Code. See Doctor, 186 S.W.3d at 20; Walker v. Ricks, 101 S.W.3d 740, 746-47 (Tex.App.-Corpus Christi 2003, no pet.).

At trial, Loth introduced an exhibit into evidence that her costs for past medical treatment totaled $33,985.23, not $40,000. Appellees argue that the jury's damage award is supported by the record because the jury heard evidence that Loth incurred other medical expenses that were not included in the exhibit. They assert the exhibit does not include (1) any of the charges by Ralph Lilly, M.D. for his consultation and treatment of Loth; (2) the cost of care provided by Larry Pollock, Ph.D. for testing and evaluating Loth; and (3) at least two visits to Loth's psychologist, Laurel Graham. However, the record is devoid of any testimony or affidavits regarding the reasonableness and necessity of these expenses. See Doctor, 186 S.W.3d at 20. Accordingly, we hold the evidence is legally and factually sufficient to support a finding for past medical expenses of only $33,985.23.

2. Future Medical Expenses

In their first issue, appellants also contend the evidence is legally and factually insufficient to support the jury's finding that Loth incurred future medical expenses of $250,000.

Texas follows the "reasonable probability" rule for future damages arising from personal injuries. Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 828 (Tex.App.-Houston [1st Dist.] 1999, pet. denied); City of San Antonio v. Vela, 762 S.W.2d 314, 321 (Tex.App.-San Antonio 1988, writ denied). To recover for future medical expenses, a plaintiff must show there is a reasonable probability that such medical expenses will be incurred in the future. Rosenboom, 995 S.W.2d at 828; Whole Foods Mkt. Southwest v. Tijerina, 979 S.W.2d 768, 781 (Tex.App.-Houston [14th Dist.] 1998, pet. denied). The preferred practice for establishing future medical costs is through expert medical testimony, but there is no requirement that a plaintiff establish such costs in that manner. Tijerina, 979 S.W.2d at 781. Because no precise evidence is required, the jury may award damages for future medical care based on the nature of the injury, the medical care received prior to trial, and the condition of the injured party at the time of trial. Id.; Vela, 762 S.W.2d at 321.

It is within the jury's sound discretion to determine what amount, if any, to award in future medical expenses. Rosenboom, 995 S.W.2d at 828; Tijerina, 979 S.W.2d at 781. Issues such as life expectancy, medical advances, and the future costs of products and services are, by their very nature, uncertain, and therefore, appellate courts are particularly reluctant to disturb a jury's award of these damages. Brownsville Pediatric Ass'n v. Reyes, 68 S.W.3d 184, 191 (Tex.App.-Corpus Christi 2002, no pet.). However, this standard of review is "not so nebulous that a reviewing court will uphold a jury award for future medical expenses when there is no evidence." Harvey v. Culpepper, 801 S.W.2d 596, 599 (Tex.App.-Corpus Christi 1990, no writ).

Dr. Lilly, Loth's treating physician, testified that Loth sustained a closed head injury sufficient to cause traumatic brain injury as a result of the collision. He said that Loth sustained injuries to the frontal lobe and cerebellum. This injury has caused Loth to experience impaired concentration, change in personality, significant depression, traumatic headaches, and neck pain. Dr. Lilly has recommended and prescribed central nervous system stimulants to deal with concentration and attention, anti-epileptic medicine, and anti-depressants. Loth testified that she spends at least $137 per month on her medications. Dr. Lilly further testified that Loth's brain injury has caused a permanent deficit that Loth will have to deal with for the rest of her life. He recommended that she continue with neurological care and on-going therapeutic follow-up.

Dr. Pollock, a neuropsychologist, testified that Loth had a number of areas of normal and intact functioning that were not affected by her injury, but several important areas of functioning showed serious problems—the most serious being the area of verbal memory. He said that the impairments in Loth's memory and executive functioning are permanent. Dr. Pollock also testified that Loth would benefit from a rehabilitation program called Project ReEntry. He said the program costs approximately $3,000 per week, and he felt she could accomplish her maximum benefit from the program in about six months. The program is located in Houston, which would require Loth to relocate during that six-month period. Loth testified that relocating to Houston would cost her approximately $1,800 to $2,000 per month in living expenses, and in addition, she would need to obtain child care during this time.

Having viewed the evidence in the light most favorable to Loth, and crediting all evidence reasonable jurors could believe and disregarding all contrary evidence except that which jurors could not ignore, we hold the evidence is legally sufficient to support the jury's finding for future medical expenses. Furthermore, having weighed all the evidence, we cannot conclude that the award is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Accordingly, we hold the evidence is factually sufficient to support the jury's finding for future...