Date: 04-26-2012

Case Style: Marquette Transportation Company Gulf-Inland, LLC v. Lorne Jackson

Case Number: 01-10-01025-CV

Judge: Keyes

Court: Texas Court of Appeals on appeal from the 55th District Court, Harris County

Plaintiff's Attorney: Sean Patrick Tracey, Scott Clayton Greenlee, Craig Depew, John C. Schwambach Jr. and Michael P. Fleming for Lorne Jackson

Defendant's Attorney: Levon G. Hovnatanian and Bruce E. Ramage for Marquette Transportation Company Gulf-Inland, LLC

Description: Lorne Jackson, appellee, sued the appellant, Marquette Transportation Company Gulf-Inland, LLC (“Marquette”), under the Jones Act for personal injuries he sustained while employed on one of Marquette’s vessels. Following a bench trial, the trial court entered judgment in Jackson’s favor. In three issues, Marquette argues that (1) the evidence and findings of fact do not support the conclusion that Marquette and its pilot were negligent; (2) the evidence conclusively established that Jackson was negligent; and (3) the findings of damages for pain and mental anguish, future medical expenses, physical impairment, and physical disfigurement are not supported by factually sufficient evidence.

We affirm.

Background

Marquette hired Jackson in January 2009. Jackson subsequently received approximately ninety minutes of training, including watching a training video on the safe handling of lines and an hour of classroom training. Jackson also received on-the-job training for several weeks aboard Marquette marine vessels. On February 18, 2009, Marquette assigned Jackson to the St. Andrew, a push boat, where he sustained his injury ten days later. Jackson sued Marquette for negligence under the Jones Act for his personal injury. See 46 U.S.C. § 30104.Jackson also alleged that the St. Andrew and its crew were unseaworthy. However, the trial court found that the vessel and crew were seaworthy, and this determination of the trial court is not challenged on appeal.

At trial, the evidence revealed that, on the evening the injury occurred, it was dark or “pitch black” on the deck of the barge. Jackson and pilot John King were the two crew members on duty, and King was the officer on duty. Two other crew members, Captain Carl Royce and First Mate John Bartholomew, were off duty, and Bartholomew was sleeping below deck. At this time, Jackson had been a Marquette employee for a little more than a month, and it is undisputed by the parties that Jackson was an inexperienced, “greenhand” seaman.

The St. Andrew received instructions to retrieve a barge from a dock at the Houston Ship Channel and transport it to a nearby staging area. The barge was moored to the dock by six mooring lines, and King assisted Jackson in “facing up” the St. Andrew to the barge and removing five of the lines mooring the barge to the dock with no problems. At some point, King left the deck of the barge to return to the wheelhouse on the St. Andrew, leaving Jackson on the deck of the barge by himself, in spite of Marquette’s policy providing, “If possible, never go on the tow alone at night.”Jackson attempted to remove the last mooring line—a rope approximately 75 feet long and three inches in diameter—but he was unable to do so because the line was “fouled” on the timberhead—the post where the mooring line was attached at the dock.

King testified that before he left the barge he told Jackson that he would have to return to the St. Andrew before the last line was removed so that he could steer the boat. He testified that he told Jackson to try to remove the final line the same way they had removed the first five, and if he could not do that, they would try something else. He testified that, from his position in the wheelhouse, he could see Jackson on the deck of the barge, but he could notsee Jackson’s lower body, which was apparently obscured by piping. He saw that Jackson was unable to remove the line, and when Jackson appeared to try to climb up onto the dock, King told him over the radio to stop, based on a concern that Jackson might fall between the dock and the barge. King testified that he told Jackson “to put the eye back on the cavel[1] . . . and that I would pull it free with the boat, to just stand back and get out of the way and I’ll move it.” He testified that Jackson returned the eye back to the cavel and backed away to a location that appeared to be free of the line.

Jackson, in contrast, testified that King told him only that he was going back to the wheelhouse, but he did not say anything else about what was going to happen. Jackson testified that he was confused about the process of removing the mooring lines, and he did not understand what King was trying to do. He testified that he communicated with King over the radio, and King told him that he was moving the St. Andrew, which, at that time, Jackson did not realize was attached to the barge—he thought the St. Andrew was attached to the dock. Jackson testified that he did not know that the line was going to move and that he never received any instructions from King to stand clear of the line, which was about 75 feet long. It is undisputed that the barge was approximately 54 feet wide. Edward Webster, an expert on liability who testified on Jackson’s behalf, testified that the amount of rope was significant “because 50 feet [of rope] just not even coiled up and laying on the deck fills a pretty large area of that deck space” and because the length made the rope more likely to “snag the timberhead.” He testified that a few feet of the rope would have been looped in a figure eight around the cavel, but the rest would have been splayed out on the deck in the forward area where Jackson was standing.

As King used the St. Andrew to attempt to move the final line, the line moved suddenly andJackson’s left leg became tangled in the line and was severely injured. Jackson testified that the “line came quick and it . . . hooked my boot” and pulled him into the cavel where the line was looped on the barge’s deck. Jackson testified that he did not run after the line to try to catch it, but instead, the line was pulling him. King, on the other hand, testified that when the barge started moving, Jackson “began to run towards the dock itself. It appeared that he was taking off running.” At that point, King ordered Jackson over the radio to not “chase the line” and then saw him collapse and lost sight of his body.

Less than a week after Jackson’s injury, Marquette filed a “Report of Marine Accident, Injury, or Death” with the United States Coast Guard. This report stated that as King, the pilot, was attempting to pull the line free from the dock, he “looked up to the bow of the barge and it appeared that [Jackson] had become entangled in the line and could not get free. While pulling away from [the] dock the line tightened and drew [Jackson’s] left leg toward the cavel,” resulting in severe injury to Jackson’s left knee and lower leg. That report also stated that King “was unable to see the accident due to the piping on the barge obstructing his view.” This report contains no mention that Jackson failed to follow King’s instructions, nor does it indicate that Jackson “chased” the line.

Regarding his injury, Jackson testified that he realized he was injured when he hit the cavel on the barge deck. He experienced “excruciating pain,” “pain like [he had] never felt before in [his] life.” Shawn Best, a deck mate on another ship who came to Jackson’s aid, described Jackson’s injuries immediately following the accident: he stated that he could “see that [Jackson was] in pain,” that “his foot was hanging off of his leg at . . . a 90-degree angle,” and that there was “blood everywhere.” Jackson and Dr. Lionberger, one of Jackson’s treating physicians and expert witnesses, testified regarding the extent of Jackson’s injuries and the numerous surgical procedures Jackson required as a result. Jackson, Lionberger, Jackson’s mother, and Marquette’s medical expert, Dr. Sassard, among others, all testified regardingthe nature and extent of Jackson’s injury and subsequent recovery.

The trial court made the following findings of fact, among others:

Pilot John King (“King”) was an employee of Marquette and the presiding officer of the operation at the time of the accident.

On February 28, 2009, Jackson had been on the job 37 days. Jackson was a “greenhand” or inexperienced seaman.

Captain Carl Royce and Deck Mate John Bartholomew were on board. They were both in their quarters and Bartholomew was asleep.

King did not wake up Bartholomew to assist Jackson on the barge.

Sunset on the day of the accident was 6:20 p.m. The accident happened at 6:45 p.m.

On the deck of the barge it was “night,” “dark” or “pitch black.”



. . . .



King left Lorne Jackson alone on the deck of the barge at night while he returned to the wheelhouse and Jackson attempted to free the sixth, or last line on the barge. . . .

At the time of the accident King was in the wheelhouse 240 feet away from Jackson on the deck of the barge. Pilot King was in visual contact with Jackson, but could not see his legs or feet. Pilot King was in verbal contact with Jackson through a walkie-talkie. . . .

When King left Jackson on the deck of the barge, he did not know the line was fouled and could not be removed from the timberhead. After Pilot King returned to the wheelhouse he decided to free the line by moving the barge away from the dock.



. . . .



King instructed Jackson to release the line from the cavel and he would pull the long end around the timberhead on the dock. . . .

When King started to pull away from the dock, Jackson was positioned in the center of the bow of the barge.

This was the first time Lorne Jackson performed this operation.

Jackson appeared to chase the line.

Jackson’s foot was caught in the line dragging his left leg under the barge’s cavel causing injury.



. . . .



Jackson was taken by ambulance to the nearest hospital and transferred to Memorial Hermann where he had surgery to repair a Grade IIIA open fracture of the left distal tibial diaphysis with open reduction and application of an external fixator.

Jackson has had six surgeries to date on his left leg which resulted in reconstruction of the left leg and ankle with right latissimusdorsi free flap, dissection of posterior tibial vessels and split thickness skin graft.

Jackson suffered a degloving of his lower left leg.

Jackson has a permanent malrotation of his left ankle.

Jackson will likely suffer injury to his left knee over time.

Jackson continues to suffer from lymphedema which leads to swelling and pain in his lower leg.

Jackson’s lower left leg shows significant scarring. Jackson has scarring on his upper leg and side from skin and muscle harvesting.

Jackson cannot stand or walk for more than one hour a day.



The trial court concluded that Jackson was a Jones Act seaman employed by Marquette working in the scope of his duties at the time of his injury, that “Marquette and King were negligent on February 28, 2009 and their negligence was a producing cause of injury to Lorne Jackson,” and that “Jackson was not negligent” and “acted as a reasonable and prudent seaman under the circumstances.” The trial court also concluded that “Jackson suffered pain and mental anguish in the past and, in reasonable probability, will suffer pain and mental anguish for the rest of his life,” that he “suffered permanent injuries including disfigurement and physical impairment,” and that his “injuries resulted in past medical care and, in reasonable probability, will require future medical care.”

The trial court entered judgment in favor of Jackson, awarding him $4,162,176.40 in total damages against Marquette. The trial court’s judgment provided that this amount included $1 million for past physical pain and mental anguish, $500,000 for future physical pain and mental anguish, $500,000 for past disfigurement, $500,000 for future disfigurement, $500,000 for past physical impairment, $500,000 for future physical impairment, and $225,000 for future medical expenses.[2]

Negligence

In its first issue, Marquette argues that the evidence and the trial court’s findings of fact do not support a conclusion that Marquette and its pilot, King, were negligent. Specifically, Marquette argues that the Jones Act does not require Marquette to ensure an employee’s safety, and, thus, Jackson had the burden to prove that Marquette and King acted negligently. It argues that the findings made by the trial court and the evidence presented at trial do not support a legal conclusion that Marquette and King breached any duty owed to Jackson. In its second issue, Marquette argues that the evidence conclusively established that Jackson was negligent.

A. Standard of Review

The Jones Act provides a cause of action for maritime workers injured by an employer’s negligence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 405 (Tex. 1998); Diamond Offshore Mgmt. Co. v. Horton, 193 S.W.3d 76, 78 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). Federal law provides that a party asserting an admiralty action may bring the action in state court. Ellis, 971 S.W.2d at 405–06; Horton, 193 S.W.3d at 78; see 28 U.S.C. § 1333(1) (2000). When a state court hears an admiralty case, that court occupies essentially the same position occupied by a federal court sitting in diversity: the state court must apply substantive federal maritime law but follow state procedure. Ellis, 971 S.W.2d at 406; Horton, 193 S.W.3d at 78.

A fundamental duty of a Jones Act employer is to provide its seamen employees with a reasonably safe place to work. Noble Drilling (US) Inc. v. Fountain, 238 S.W.3d 432, 439 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (citing Colburn v. Bunge Towing, Inc., 883 F.2d 372, 374 (5th Cir. 1989)). The proper standard for determining the duty of care owed by an employer or a seaman is ordinary prudence under the circumstances. Id. (citing Offshore Pipelines, Inc. v. Schooley, 984 S.W.2d 654, 658 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (citing Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335, 339 (5th Cir. 1997))). The circumstances of a seaman’s employment include not only his reliance on his employer to provide a safe work environment but also his own experience, training, or education. Id. (citing Gautreaux, 107 F.3d at 339). Thus, the reasonable person standard applies, and the standard in a Jones Act negligence action “becomes one of the reasonable seaman in like circumstances.” Id. (quoting Gautreaux, 107 F.3d at 339).

The Jones Act expressly incorporates the Federal Employers’ Liability Act (“FELA”) and the case law developing that statute, and thus the causation standard under the Jones Act is the same as that under FELA. Ellis, 971 S.W.2d at 406; Horton, 193 S.W.3d at 79. Under FELA, the causation burden is not the common law proximate cause standard; rather, the causation burden is “whether the proof justifies with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury for which the claimant seeks damages.” Ellis, 971 S.W.2d at 406; Horton, 193 S.W.3d at 79; see also Fountain, 238 S.W.3d at 439–40 (“Under the Jones Act, a seaman is entitled to recovery if his employer’s negligence is the cause, in whole or in part, of his injury.”) (citingGautreaux, 107 F.3d at 335). This burden has been termed “featherweight.” Ellis, 971 S.W.2d at 406; Horton, 193 S.W.3d at 79. Thus, to prove negligence, an employee must prove: (1) personal injury in the course of his employment; (2) negligence by his employer or an officer, agent, or employee; and (3) causation to the extent that his employer’s negligence was the cause “in whole or in part” of his injury. RigdonMarine Corp. v. Roberts, 270 S.W.3d 220, 226 (Tex. App.—Texarkana 2008, pet. denied) (citing Hernandez v. Trawler Miss Vertie Mae, Inc., 187 F.3d 432, 436 (4th Cir. 1999) and Gautreaux, 107 F.3d at 335).

In addition to a less stringent burden of proof, the standard of appellate review in Jones Act cases, as provided under FELA, is also less stringent than under the common law. Ellis, 971 S.W.2d at 406; Horton, 193 S.W.3d at 79. The purpose of the Jones Act standard of review is to vest the fact-finder with complete discretion on factual issues about liability. Ellis, 971 S.W.2d at 406 (citing Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 506–07, 77 S. Ct. 443, 448–49 (1957) (discussing standard of review under FELA, which was incorporated into Jones Act)); Horton, 193 S.W.3d at 79. Once the appellate court determines that some evidence about which reasonable minds could differ supports the verdict, the appellate court’s review is complete. Ellis, 971 S.W.2d at 406; Horton, 193 S.W.3d at 79; see also Davis v. Odeco, Inc., 18 F.3d 1237, 1243 (5th Cir. 1994) (holding that some evidence of “causal nexus” between negligence and injury is all that is required to survive appellate review of favorable verdict on Jones Act negligence claim). We apply this less-stringent standard rather than a traditional factual sufficiency review of a finding of liability under the Texas “weight and preponderance” standard. Ellis, 971 S.W.2d at 406; Horton, 193 S.W.3d at 79.

B. Marquette’s Negligence

Marquette argues that the evidence and the trial court’s findings do not support its conclusion that Marquette and King, the officer on duty at the time of the accident, were negligent.

The trial court found that King left Jackson “alone on the deck of the barge at night” so that Jackson was required to free the final mooring line by himself and that other, more-experienced crew members were on board, although they were off duty. The trial court also found that, at the time he left the barge, King did not know that the final line was fouled on the timberhead and that he decided after he returned to the wheelhouse to free the line by moving the barge away from the dock.The trial court further found that King was “in visual contact with Jackson, but could not see his legs or feet,” that Jackson “appeared” to chase the line, and that Jackson’s “foot was caught in the line dragging his left leg under the barge’s cavel causing injury.”

These findings are supported by the evidence. Jackson’s testimony indicated that it was dark outside at the time of the incident, that he did not understand the task he was asked to perform, and that King never gave him any specific instruction about where to stand or what was about to happen. Jackson testified that,although he was not sure what was going to happen next, he understood that he was supposed to stay out of the way for whatever was about to happen;that the “line came quick and it hooked” his boot, pulling him into the cavel on the barge’s deck; and that he did not run after the line to try to catch it, but, instead, the line pulled him along the deck. Jackson had moved to mid-deck, or “the center of the bow”of the 54-foot barge. According to Webster, approximately 50 feet of the rope was splayed out over a “pretty large area” of the deck near where Jackson was standing. King testified that he was 240 feet away from Jackson and that his view of Jackson’s legs and feet was obscured.

Thus, the evidence and findings support a conclusion that King and Marquette were negligent because King, in spite of the fact that he could not see Jackson’s legs and feet,used the St. Andrew to remove the final lineconnecting the barge to the dock while Jackson was standing on the deck of the barge in proximity to the 50 feet of rope. King, according to Jackson’s testimony, failed to warn Jackson or provide any instruction or information regarding what to expect and what Jackson needed to do to preserve his safety. Furthermore,King failed to call another crew member to assist Jackson with the unfamiliar maneuver, in violation of Marquette’s policy that seamen should “never go on the tow alone at night” when possible. See Fountain, 238 S.W.3d at 439 (holding that circumstances of seaman’s employment include not only his reliance on his employer to provide safe work environment, but also his own experience, training, and education, and that Jones Act employer has fundamental duty to provide its seamen employees with reasonably safe workplace).

The evidence supports a conclusion that (1)Jackson suffered an injury in the course of his employment; (2) King, the officer on duty, was negligent in failing to properly warn or instruct Jackson regarding the operation they were performing or in failing to call another crew member to assist Jackson with the unfamiliar maneuver; and (3) this negligence cause Jackson’s injury “in whole or in part.” See Roberts, 270 S.W.3d at 226.

We overrule Marquette’s first issue.

C. Jackson’s Negligence

Marquette also argues that the evidence supports a conclusion that Jackson was negligent as a matter of law. Marquette relies on King’s testimony that he told Jackson to stay out of the way of the line; the training Jackson had previously received; and the trial court’s finding that Jackson “appeared to chase the line” in spite of King’s warning.

Jackson did not dispute that he received ninety minutes of training before beginning work with Marquette, which included a training video and approximately an hour of classroom training, and that he received several weeks of on-the-job training on other vessels before being assigned to the St. Andrew. However, Jackson also testified that he was not familiar with the procedure he and King were preforming when the accident occurred and that he was confused about whether he was on the dock or the barge and about whether the St. Andrew was connected to the barge or the dock. He did not know what King was trying to do with respect to removing the final mooring line, and he did not know what to expect when King told him that he was going to move the barge. He testified that King did not give him any specific instruction or command about where to stand, what to do, or what to expect. Jackson’s testimony indicates that he was attempting to “get out of the way [of] whatever was going to happen,” but he did not know what was going to happen next, he was confused about the process of removing the mooring lines, and he did not understand what he and King were trying to do. Jackson stated that he did not chase the line, but that the 75-foot long rope “came quick and it hooked” his boot and pulled him along the deck into the cavel.

Furthermore, the trial court found, and neither party disputes, that Jackson was a “greenhand,” or inexperienced seaman. Thus, some evidence—in particular, Jackson’s testimony—supports the trial court’s conclusion that Jackson acted reasonably under the circumstances, given his experience, training, and education. See Fountain, 238 S.W.3d at 439; see also Stevens v. Seacost Co., 414 F.2d 1032, 1039 (5th Cir. 1969) (holding that shipowner was liable for negligence when inexperienced seaman was injured as result of grabbing chain as ship’s captain hauled it in and stating, “The seaman’s youth, unfamiliarity, and total lack of experience put a heavier burden on the ship and relieved the victim of responsibility”); Davis v. Parkhill-Goodloe Co., 302 F.2d 489, 494 (5th Cir. 1962) (stating that shipowner has “a duty to warn in an effective way of dangers not reasonably known . . . and a duty to take effective action in the light of the particular condition—here inexperience and ignorance of seagoing perils—of the particular seaman” in holding shipowner negligent for failure to warn inexperienced seaman to wear life vest).

Contrary to Marquette’s argument, the trial court’s finding that “Jackson appeared to chase the line” does not support a conclusion that the trial court believed that Jackson ran after the line in an attempt to catch it. Consistent with Jackson’s testimony, Jackson could have “appeared” to chase the line because he was being dragged by it. We interpret the trial court’s finding in a light favorable to its judgment. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).

Marquette also argues that “on day one of his employment, a deckhand has enough training experience to stay clear of a line.” However, Jackson stated that he did not know what King was attempting. He testifiedthat King’s only statement to himwas that King going to move the St. Andrew, butJacksondid not realize the line would also move. His testimony also indicated that he had never participated in a maneuver like the one King was attempting at the time of Jackson’s accident. Thus, there was some evidence about which reasonable minds could differ indicating that Jackson did not have the training or experience to know to stay clear of the line.See Ellis, 971 S.W.2d at 406; Horton, 193 S.W.3d at 79. As we have already discussed, the evidence indicates that King decided to move the St. Andrew, using its engines, to remove the line. He did so when he knew Jackson stood on the deck of the barge but without a clear view of Jackson’s legs and feet.

Jackson’s testimony about the incident and its surrounding circumstances provided evidence about which reasonable minds could differ in support of the trial court’s conclusion that Jackson was not negligent, and, thus, we defer to the trial court’s judgment. See Ellis, 971 S.W.2d at 406; Horton, 193 S.W.3d at 79.

We overrule Marquette’s second issue.

Damages

In its third issue, Marquette argues that the evidence supporting the trial court’s award of damages was based on insufficient evidence. Specifically, it argues that the trial court’s findings for pain and suffering, mental anguish, future medical expenses, physical impairment, and past and future disfigurement were excessive.

A. Standard of Review

Texas courts of appeals have the power to review excessiveness of damages and to order remittitur in FELA actions and, by implication, in Jones Act cases as well. Ellis, 971 S.W.2d at 406 (citing Sweet v. Port Terminal R.R.Ass’n, 653 S.W.2d 291, 294–95 (Tex. 1983)). We must make our own “detailed appraisal of the evidence bearing on damages.” Id. (quoting Nairn v. Nat’l R.R. Passenger Corp., 837 F.2d 565, 567 (2d Cir. 1988)).

The standard of review for an excessive damages complaint is factual sufficiency of the evidence. Id. We employ the same test for determining excessive damages as for any factual sufficiency question. Id. When considering a factual sufficiency challenge, we must consider and weigh all of the evidence, not just that evidence that supports the verdict. Id. at 406–07. We can set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust. Id.at 407. We are not the fact-finder and may not pass upon the witnesses’ credibility or substitute our judgment for that of the fact-finder, even if the evidence would clearly support a different result. Id. We review a trial court’s findings of fact for factual sufficiency under the same standards we apply in reviewing a jury’s findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).

When someone suffers personal injuries, the damages fall within two broad categories—economic and non-economic damages. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 763 (Tex. 2003).Traditionally, economic damages are those that compensate an injured party for lost wages, lost earning capacity, and medical expenses, while non-economic damages include compensation for pain, suffering, mental anguish, and disfigurement. Id. Damages for physical impairment are another type of non-economic damages. See id.

Courts of appeals should conduct a review of each category of damages awarded, considering the evidence unique to each category, to determine whether the award for that category is against the great weight and preponderance of the evidence. Id. at 773. If, considering the evidence unique to each category, we determine that the award was against the great weight and preponderance of the evidence, we then consider all of the overlapping evidence, together with the evidence unique to each other category, to determine if the total amount awarded in the overlapping categories is factually sufficient. Id.

B. Damages for Pain and Mental Anguish

In part of its third issue, Marquette argues that damages the trial courtfound for pain and mental anguish, namely that Jackson sustained $1 million in damages for past pain and mental anguish and $500,000 for future pain and mental anguish, are excessive.

In reviewing the factual sufficiency of an award of damages for pain and suffering, we give great discretion to the fact-finder in determining the amount of damages it deems appropriate. See Marvelli v. Alston, 100 S.W.3d 460, 482 (Tex. App.—Fort Worth 2003, pet. denied).To recover damages for mental anguish, a plaintiff must introduce “direct evidence of the nature, duration, and severity of [his] mental anguish, thus establishing a substantial disruption in [his] daily routine” or evidence of “a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger.” Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). The evidence must also justify the amount awarded. Saenz v. Fid.& Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996). Damages for future mental anguish are recoverable “if there is a reasonable probability that they will be suffered in the future.” Lubbock Cnty. v. Strube, 953 S.W.2d 847, 857 (Tex. App.—Austin 1997, pet. denied) (op. on reh’g). Mental anguish can be established through testimony from the injured party explaining how he felt and how his life was disrupted. Tagle v. Galvan, 155 S.W.3d 510, 519 (Tex. App.—San Antonio 2004, no pet.).

Marquette argues that, “[a]t most, the evidence shows that Jackson consciously experienced intense pain for approximately 30 minutes on the day of the accident,” and that Jackson only experienced pain “on and off” after the accident. Marquette cites the facts that Jackson was not taking pain medication nine months after the accident and that Jackson characterized his pain as mild and occasional following his final surgery to support its contention that the findings on damages for past pain were excessive. Marquette further argues that the evidence does not support the finding on future pain because Dr. Lionberger testified Jackson’s pain would stop once the leg healed completely in a couple of years and because “Jackson was experiencing no pain on June 18, 2010 and could bear full weight on his left leg.”

Regarding evidence of mental anguish, Marquette argues that Jackson did not present sufficient evidence because neither his mother’s testimony that she was concerned he was depressed nor evidence that Jackson worried about and dwelled upon his injury demonstrated a “high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger.” See Woodruff, 901 S.W.2d at 444. It further argues that there was no evidence that Jackson is likely to experience mental anguish in the future.

The record contains more evidence regarding Jackson’s physical pain and mental anguish than the facts cited by Marquette. Shawn Best, who observed Jackson’s injuries immediately following the accident, testified that he could “see that [Jackson was] in pain,” that “his foot was hanging off of his leg at . . . a 90-degree angle,” and that there was “blood everywhere.” Jackson himself testified that the pain he experienced at the time of the accident was excruciating and unlike any pain he had felt before. Jackson’s medical records indicated that he reported feeling pain several hours after the accident despite attempts to control it with morphine. Jackson also testified that he continued to experience painfrom the numerous surgeries that occurred over the following months and that his leg still hurts him “every day,” especially at night, when the pain sometimes keeps him awake. He also stated that his leg occasionally “swells up . . . like a watermelon” or a basketball and that the pain when it swells is “excruciating.”

Dr. Lionberger, the orthopedic surgeon who was treating Jackson’s leg and who testified as a medical expert, explained the severe nature of Jackson’s injuries. The accident broke both of the bones in Jackson’s lower left leg, in what Dr. Lionberger described as a grade three, type A fracture—“the worst [type of] open fracture without contamination.” Dr. Lionberger further testified that Jackson suffered serious and extensive soft-tissue injuries to the surrounding tissues, blood vessels, and skin on his left leg and that Jackson’s left knee had multiple ligament tears.Dr. Lionberger testified about the extensive surgeries that Jackson’s injury required in the two weeks following the accident, including attachment of an external fixator to stabilize his leg and to prevent the need for amputation, surgical removal of dead soft tissue and other repair to the soft-tissue of the leg, another surgery to remove the external fixator and insert a hollow tube with screws to stabilize the bones, a second surgery to remove dead tissue, and skin and muscle grafts using tissue removed from other places on Jackson’s body.

Dr. Lionberger testified that, at the time of trial, Jackson was still suffering from lymphedema, or swelling, that was “uncomfortable” and “painful” and that likely was permanent but could possibly be improved upon. He testified that pain from lymphedema like Jackson’s could “keep somebody awake at night” and limit mobility. He also testified that Jackson would require additional surgeries in the future, including knee replacement and removal of the rod. Dr. Lionberger testified that, in his opinion, Jackson’s injuries causedand the corrective procedures him pain and suffering, and he will continue to experience pain “in some form or fashion [for] the remainder of his life.”

Regarding mental anguish, Jackson’s mother testified that Jackson “laid in his bed for over a solid year” after the accident and did not start to “move about” until a month after his last surgery in April 2010. She testified that, even after he appeared to accept that “this is [his] life and [he’s] just going to have to go on with it,” she still did not “get the sense of him being that happy in his appearance and how he behaved.” She testified that he was “truly depressed” for “one solid year” and that “[f]riends could come by; no one could entice him to come out of his room.” She testified that, even at the time of trial, Jackson still spent most of his time in his room, elevating his leg to prevent swelling, and that he could not perform basic chores like cooking and cleaning.

Jackson also testified about his mental state. He testified that it took about a month after the incident before he even attempted to be around other people and that he felt like he was “coming out of [a] tomb.”He testified that when he tried to get out and do things, his leg swelled and caused pain, resulting in his retreating back to his room at his parents’ house, and that this made him “feel bad about [his] life.” He testified that it makes him depressed to think about the extent of the injury and the fact that he will never have a fully-functioning leg again. He also testified that “it ain’t going to feel too good” to have his parents, girlfriend, or sons take care of him for the rest of his life because he can only stand or walk for about an hour before his leg starts to swell painfully.

Thus, reviewing all the evidence, we conclude that sufficient, probative evidence exists to support the trial court’s conclusion that Jackson suffered past physical pain and mental anguish and that he will suffer physical pain and mental anguish in the future. Jackson’s own testimony and that of his mother provided evidence of the nature, duration, and severity of his mental anguish and established that he experienced a “substantial disruption in his daily routine.” See id. It also established a probability that he would continue to experience a substantial disruption to his daily routine in the future. See Strube, 953 S.W.2d at 857; see alsoTagle, 155 S.W.3d at 519(holding that mental anguish can be established through testimony from injured party explaining how he felt and how his life was disrupted). Furthermore, Jackson’s testimony regarding his past and current pain and Dr. Lionberger’s description of Jackson’s extensive and severe injuries and his opinion that it was medically probable that Jackson would suffer from at least some pain from those injuries for the rest of his life support the finding of past and future pain. See Gen. Motors Corp. v. Burry, 203 S.W.3d 514, 552 (Tex. App.—Fort Worth 2006, pet. denied) (“Pain and suffering may be inferred or presumed as a consequence of severe injuries.”).

Given the severe injury, multiple painful surgeries, and Jackson’s future prognosis, the record does not indicate that the trial court’s award was against the great weight and preponderance of the evidence. See Jackson, 116 S.W.3d at 773; see also Sunbridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 248–52 (Tex. App.—Texarkana 2005, no pet.) (holding that award of one million dollars was not excessive to compensate plaintiff for physical pain and mental anguish suffered from injuries sustained in fall); Cresthaven Nursing Residence v. Freeman, 134 S.W.3d 214, 228–32 (Tex. App.—Amarillo 2003, no pet.) (awarding one million dollars to compensate plaintiff for physical pain and mental anguish suffered from two broken legs sustained in fall).

C. Damages for Future Medical Expenses

Marquette also argues in its third issue that the evidence was insufficient to support the trial court’s finding of $225,000 for future medical expenses because Dr. Lionberger admitted that his estimate was a “guess” and because at least one of the procedures that Lionberger anticipated that Jackson would need in the future—arthroscopy of the knee—had already been completed at the time of trial.

We begin by observing that an award of future medical expenses, like damages for pain and suffering or mental anguish, lies largely within the fact-finder’s discretion. Antonov v. Walters, 168 S.W.3d 901, 908 (Tex. App.—Fort Worth 2005, pet. denied). “Because issues such as life expectancy, medical advances, and the future costs of products and services are, by their very nature, uncertain, appellate courts are particularly reluctant to disturb a [fact-finder’s] award of these damages.” Id. No precise evidence is required to support an award of future medical expenses, and the fact-finder may base its award on the nature of the injuries, the medical care rendered before trial, and the condition of the injured party at the time of trial. Tagle, 155 S.W.3d at 519 (citing City of San Antonio v. Vela, 762 S.W.2d 314, 320–21 (Tex. App.—San Antonio 1988, writ denied)).

Dr. Lionberger testified that, in addition to the arthroscopy to repair injuries to knee ligaments and cartilage, Jackson would likely need a total knee replacement as a result of his injury and that, because Jackson was forty-six and knee replacements begin to fail between ten to fifteen years after surgery, Jackson would need more than one total knee replacement based on reasonable medical probability—potentially between two and four total knee replacements. He also testified that Jackson would need to have the support rod and screws removed from his leg, but the extent of the surgeries required to do so depended on how well Jackson’s leg healed. If his leg healed well, then doctors could perform two surgeries to remove the screws and rod and allow his bone to finish healing, but if Jackson suffered any complications, such as a re-fracture of the weakened bone, then he would need to have a new rod, new grafts, and eventual removal of the replacement rod.

Dr. Lionberger’s deposition testimony, as admitted at trial, established that he believed Jackson would need approximately $255,000 for future medical expenses as a “rough estimate being somewhat pessimistic as to the surgeries and the complications that could befall him.” At a subsequent deposition, also admitted at trial, Dr. Lionberger testified that even after the arthroscopic knee surgery had been completed, he still believed that $225,000 was a good estimate of Jackson’s future expenses. He testified that Jackson was still not “totally healed” and that potential complications to the healing process would be very expensive to treat. Furthermore, Dr. Sassard, Marquette’s medical expert, testified that a knee replacement could cost between $75,000 and $100,000 “[b]y the time you get through all the expenses and hospital charges and surgeon’s fees and anesthesia and the rehab and medication. . . .”

Dr. Lionberger was not required to give precise evidence to support the award of future medical expenses, and he provided extensive evidence regarding the nature of Jackson’s injuries, the medical care rendered before trial, Jackson’s condition at the time of trial, and his probable future medical needs. The trial court was entitled to rely upon such evidence to support its award. See Tagle, 155 S.W.3d at 519; see also Weeks Marine, Inc. v. Salinas, 225 S.W.3d 311, 320 (Tex. App.—San Antonio 2007, pet. dism’d) (holding that “jury is entitled to disbelieve or discount any part of an expert’s testimony” and to “make credibility determinations and weigh competing expert testimony and the variables and assumptions upon which that testimony is based”). Thus, the evidence supports the trial court’s determination that Jackson would incur additional medical expenses in the future, and it does not indicate that the trial court abused its discretion in awarding $225,000 for those damages. See Antonov, 168 S.W.3d at 908 (holding award for future medical expenses largely within trial court’s discretion “[b]ecause issues such as life expectancy, medical advances, and the future costs of products and services are, by their very nature, uncertain”).

D. Damages for Physical Impairment

Marquette argues that the trial court’s finding that Jackson suffered $500,000 in damages for past physical impairment and $500,000 for future physical impairment was not supported by the record.

“Physical impairment” may encompass the loss of the injured party’s lifestyle, the effect of which must be substantial and extend beyond any pain, suffering, mental anguish, lost wages, or diminished earning capacity. Jackson, 116 S.W.3d at 772. The loss of enjoyment of life may be considered as a factor in assessing damages for physical impairment. Id.; see also Figueroa v. Davis, 318 S.W.3d 53, 64 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (“Physical impairment, sometime called loss of enjoyment of life, encompasses the loss of the injured party’s former lifestyle.”) (quotingBurry, 203 S.W.3d at 554). However, a claimant should not be compensated more than once for the same elements of loss or injury. Jackson, 116 S.W.3d at 770, 772.

Marquette argues that there was insufficient evidence of Jackson’s physical impairment because the “only evidence of any effect on specific non-work related activities was Jackson’s supposed inability to play recreational sports with family members.” Jackson testified that before his accident he was athletic and liked to play basketball, softball, and volleyball and to rollerskate with his brothers and his sons. He also testified that he had been living with his girlfriend and had been planning to ask her to marry him, but he had to postpone those plans indefinitely to move in with his parents because he was no longer able to care for himself following the accident.

Dr. Lionberger also testified that Jackson sustained life-long physical impairment. He testified that Jackson had “gait deficiencies” and “rotational abnormalities” that resulted in Jackson’s walking with a permanent limp; that he did not have full sensation in his left foot; that he would never be able to run again; that he might dance again, but “he’s not going to be equal and as agile as he was”; and that he was never going to be able to move as he had before the accident. He further testified that Jackson should probably put a “one-hour limit” on the amount of walking and standing that he does each day. As a result, both Jackson and his mother testified that Jackson was unable to do many common household tasks, such as cooking and cleaning.

Thus, there was sufficient evidence, beyond the loss of earning capacity, of loss of enjoyment of life, loss of his former lifestyle, and permanent physical impairment, both in the past and in the future. Dr. Lionberger’s and Jackson’s testimony established that Jackson’s mobility will be permanently limited and that he will no longer be able to participate in the same activities that he pursued before he was injured, including everything from standing in order to cook and clean to playing basketball with his family.Given these facts, we conclude that the trial court’s award was not contrary to the great weight and preponderance of the evidence. See Jackson, 116 S.W.3d at 773;see also Davis, 318 S.W.3d at 64–65 (upholding award for past and future physical impairment for plaintiff with dental injuries because he subsequently had to limit number and types of food he ate and “could not eat some of the foods that he loved” for several years); Burry, 203 S.W.3d at 545–55 (upholding $3.5 million for future physical impairment for mother who suffered brain damage and could no longer read to her children, drive a car, or live without supervision).

E. Damages for Disfigurement

Finally, Marquette argues in its third issue that the evidence was insufficient to support the trial court’s findings and award of $500,000 for past disfigurement and $500,000 for future disfigurement. Marquette argues that the evidence of disfigurement was insufficient because Jackson’s permanent scarring—on his lower left leg, his upper leg, and his side below his arm—“is on parts of his body that generally will be covered by clothing.”

Disfigurement is “that which impairs or injures the beauty, symmetry, or appearance of a person . . . ; that which renders unsightly, misshapen or imperfect, or deforms in some manner.” Goldman v. Torres, 341 S.W.2d 154, 160 (Tex. 1960); Pendergraft v. Carrillo, 273 S.W.3d 362, 367 (Tex. App.—Eastland 2008, pet. denied). Moreover, the Texarkana Court of Appeals has rejected the argument that a plaintiff’s scar was not compensable disfigurement because it was small and covered by clothing. Wal-Mart Stores, Inc. v. Tinsley, 998 S.W.2d 664, 673 (Tex. App.—Texarkana 1999, pet. denied). As that court observed, multiple Texas courts have upheld past and future disfigurement awards for surgical scars. See id.; see also Baptist Mem’l Hosp. Sys. v. Smith, 822 S.W.2d 67, 80 (Tex. App.—San Antonio 1991, writ denied) (affirming award of $1.5 million for past and future disfigurement where plaintiff had no scars but did have “contorted limbs” and “facial deformity”), abrogated on other grounds, Sampson v. Baptist Mem’l Hosp. Sys., 940 S.W.2d 128 (Tex. App.—San Antonio 1996); Nw. Mall, Inc. v. Lubri-Ion Int’l, Inc., 681 S.W.2d 797, 804 (Tex. App.—Houston [14th Dist.] 1984, writ ref’dn.r.e.) (upholding $55,000 for disfigurement caused by six surgeries).

Dr. Lionberger testified that Jackson’s leg would have permanent scarring and disfigurement due to the injuries, including the degloving of the skin and soft tissue around his left leg, and due to the tissue grafts Jackson received. Jackson also admitted photographs, introduced during Dr. Lionberger’s testimony, regarding the way Jackson’s leg appeared in the months following the accident, the effect of taking muscle and skin grafts from his side and upper leg, and permanent scarring and distention, or swelling, to his leg. Jackson also showed his leg to the trial court at the time of trial. Thus, the evidence established that Jackson’s original injury and his subsequent surgeries, including muscle and skin grafts, impaired “the beauty, symmetry, and appearance of [his] person” and that his leg was permanently disfigured, scarred, and asymmetrical. See Goldman, 341 S.W.2d at 160 (stating that disfigurement is “that which impairs or injures the beauty, symmetry, or appearance of a person . . . ; that which renders unsightly, misshapen or imperfect, or deforms in some manner”).

We hold, therefore, that the evidence was sufficient to support the trial court’s award of damages for past and future disfigurement. Marquette has not shown that the judgment was contrary to the overwhelming weight of the evidence, and we will not substitute our judgment for that of the fact-finder. See Jackson, 116 S.W.3d at 773; Ellis, 971 S.W.2d at 406–07.

We overrule Marquette’s third issue.

* * *

See: http://www.1stcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=90409

Outcome: We affirm the judgment of the trial court.

Plaintiff's Experts:

Defendant's Experts:

Comments: