Thrailkill v. Montgomery Ward and Co., Inc.

• Citation: 670 S.W.2d 382
• Decision Date: 05 April 1984
• Docket Number: No. 01-83-302-CV,01-83-302-CV
• Parties: Barbara THRAILKILL, Appellant, v. MONTGOMERY WARD AND CO., INC. et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 382

670 S.W.2d 382

Barbara THRAILKILL, Appellant, v. MONTGOMERY WARD AND CO., INC. et al., Appellees.

No. 01-83-302-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

April 5, 1984.

Rehearing Denied May 10, 1984.

George Payne, Tom R. Letbetter, Garrett, Letbetter & Payne, Houston, for appellant.

William J. Dyer, Baker & Botts, James Barker, Talbert, Giessel, Stone, Barker & Lyman, Houston, for appellees.

Before COHEN, WARREN and BASS, JJ.

OPINION

COHEN, Justice.

The appellant was a customer in a Montgomery Ward store who was injured when an elevator door closed upon her. She sued Montgomery Ward and Company and Montgomery Elevator Company, an unrelated entity, alleging negligence in failing to properly maintain the elevator. A jury found that each defendant was 50% negligent in causing the appellant's injuries and found damages of $8,468.50 for past medical expenses and, in addition, $15,000.00 in general damages.

The appellant executed a Mary Carter agreement with Montgomery Elevator Company prior to trial in exchange for $7,500.00.

The first two points of error argue that the court erred in excluding, as speculative, expert testimony from the appellant's treating physician, Dr. Richard Moiel, regarding the likelihood for future surgery. Most of the doctor's videotape deposition was admitted before the jury; however, the court sustained the appellee's objection that the excluded evidence was speculative because surgery was not shown, by reasonable medical probability, to be necessary in the future. The appellant contends that the testimony, when taken in context and considered as a whole, indicated a reasonable probability of future surgery, and, in addition, was admissible to show her present physical condition and to prove damages for future pain and suffering and loss of future earning capacity.

The accident occurred on October 13, 1980, and the appellant underwent a cervical laminectomy in November, 1980, performed by Dr. Moiel. The trial occurred in January, 1983, and Dr. Moiel's deposition was given approximately thirteen months before. He testified that, in reasonable medical probability, the surgery performed on the appellant in November, 1980, was necessitated by the elevator accident at Ward's, and that the surgery was an attempt to treat cervical nerve root pressure from which the appellant was suffering. In 1981 and 1982, the appellant underwent physical therapy in response to continuing complaints of pain, numbness in her fingers, and inability to extend her arm and shoulder normally.

Dr. Moiel testified by deposition before the jury that the appellant probably would have some future pain caused by the accident. His testimony was excluded that there was a "strong possibility" of future surgery due to appellant's persistent and continuing complaints of pain, and that "if we're true in what we believe is wrong with her, that it would probably lead to a (surgical) fusion of her neck." The prerequisite to future surgery, Dr. Moiel testified, was the appellant's continued pain, and the appellant testified at trial that she was still in pain.

We observe that, "as pointed out in Otis Elevator Co. v. Wood, 436 S.W.2d 324, the rule of 'reasonable medical probability' relates to the showing that must be made to support an ultimate finding of fact and not to the standard by which the medical expert must testify. ... If the witness were permitted to state his opinion only in terms of medical probabilities, moreover, the court and jury would have no opportunity to decide the case on the basis of the substance rather than the form of his testimony." Lenger v. Physicians General Hospital, Inc., 455 S.W.2d 703, 707 (Tex.1970). In Lenger it was held error to exclude the doctor's testimony about "possible" causes of the injury, even though the doctor admitted he did not "know" which of the possible causes did, in fact, cause the injury.

We note that Dr. Moiel's excluded testimony was not offered to support an "ultimate finding of fact", because in the instant case, there were no special issues regarding whether future surgery would be performed, nor were there issues on future medical expenses. Dr. Moiel had already testified that future pain and future surgery, if necessary, to relieve the appellant's condition would, "in reasonable medical probability", be attributable to the elevator accident. Thus, the cause of the appellant's future pain and future surgery, if any, was proved in reasonable medical probability. Only the evidence concerning the probability of future surgery to alleviate the pain is at issue in this appeal.

It has been frequently held that, "Reasonable probability ... is determinable by consideration of the substance of the testimony of the expert witness and does not turn on semantics or on the use by the witness of any particular term or phrase." Insurance Company of North America v. Myers, 411 S.W.2d 710, 713 (Tex.1966).

Two recent decisions have affirmed judgments awarding future medical expenses based on expert medical testimony very similar to that in the case at bar, and in both cases the court rejected contentions that the evidence was both wrongly admitted and insufficient to support a damage award because it was speculative. In Keller Industries, Inc. v. Reeves, 656 S.W.2d 221, 227 (Tex.App.--Austin 1983, writ ref'd n.r.e.), the doctor testified that if a good result came from the surgery already performed on the right wrist, and if the plaintiff had continued difficulty with the left wrist, the next step would be to perform similar surgery on the left wrist. If there was not a good result on the operated wrist, then a more significant surgical procedure, fusion, was "probably suggested" for both wrists. The court held that, "the clear import of this testimony is that there is a reasonable probability that O.O. Reeves will require future surgical procedures ...". In Keller, supra, only the sufficiency of the evidence, not its admissibility, was challenged. The result is significant, however, because it indicates that evidence similar to that in the instant case constitutes a reasonable probability of future surgery.

In Hughett v. Dwyre, 624 S.W.2d 401 (Tex.App.--Amarillo 1981, writ ref'd n.r.e.), the court affirmed the plaintiff's judgment and rejected contentions that the doctor's testimony regarding future consequences of the injury was inadmissible because it was speculative. The doctor testified that surgery might be required to determine the unknown cause of the plaintiff's back pain. He proposed to hospitalize the plaintiff for one to two weeks for therapy and thorough examination, and stated that, if the plaintiff did not improve during that period, surgery would probably be necessary. On cross-examination, the doctor stated that he could not say "in reasonable medical probability" that the plaintiff would "have to have surgery". The court held:

Texas follows the "reasonable probability" rule for future damages for personal injuries (all citations omitted) Adhering to the "reasonable probability" rule, the Texas courts have also consistently held that the award of future medical expenses is a matter primarily for the jury to determine. No precise evidence is required. The jury may make its award based upon the nature of the injuries, the medical care rendered before the trial, and the condition of the injured party at the time of trial....

The pragmatic effect of Edens-Birch [Lumber v. Wood, 139 S.W.2d 881 (Tex.Civ.App.--Beaumont 1940, writ dism'd judgment correct] and its progeny is that to sustain a finding on future medical expenses, the plaintiff is not required to establish the future medical consequences of his injury by expert medical testimony grounded on "reasonable medical probability". (emphasis supplied)

The appellee in Hughett v. Dwyre, supra, relied on Fisher v. Coastal Transport Co., 149 Tex. 224, 230 S.W.2d 522 (1950), as does the appellee herein. Fisher held that it was error to submit special issues permitting recovery for future suffering which the plaintiff "may" undergo, because "may" indicates a mere possibility, whereas "reasonable probability" is required. Four justices dissented vigorously, arguing that the defendant was adequately protected by the usual jury instruction to award damages only for future suffering which was proved by a preponderance of the evidence. The dissent quoted Dean Charles McCormick's treatise on damages:

"The chief reliance for reaching reasonable...