IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-40185
Summary Calendar
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LINDA SARTIN,
Plaintiff-Appellee,
versus
WAL-MART STORES, INC.; ET AL.,
Defendants,
WAL-MART STORES, INC.,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:98-CV-1501
_________________________________________________________________
January 10, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
In 1997, Linda Sartin was suffering from worsening health,
including back problems. On a trip to a local Wal-Mart on
November 28, 1997, she slipped on a table that a Wal-Mart employee
was disassembling on the floor. Sartin asserts that she was
injured in this incident. She sued Wal-Mart and won a judgment of
$120,700. The defendants appeal the judgment, making three
arguments.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I
In this case, based on diversity jurisdiction, Wal-Mart begins
by arguing that there was insufficient evidence to present two
damages issues to the jury. The first is the claim for future
medical expenses. In evaluating the sufficiency of the evidence,
we view all evidence and reasonable inferences in favor of Sartin.
Baltazor v. Holmes, 162 F.3d 368, 373 (5th Cir. 1998). Only when
the facts and the reasonable inferences are such that a reasonable
juror could find in favor of Wal-Mart will we hold that there was
an insufficient evidentiary basis. Id.
In order to recover for future medical expenses under Texas
law, the plaintiff must show that there is a reasonable probability
of incurring such medical expenses in the future. See Fisher v.
Coastal Transp. Co., 230 S.W.2d 522, 523 (Tex. 1950); Fibreboard
Corp. v. Pool, 813 S.W.2d 658, 681 (Tex.App. Texarkana 1991); City
of Rosenberg v. Renken, 616 S.W.2d 292, 293 (Tex.App. Houston
1981). The reasonable value of future medical care may be
established by evidence of the reasonable value of past medical
treatment. See Harvey v. Culpepper, 801 S.W.2d 596, 599 (Tex.App.
Corpus Christi 1990); Renken, 616 S.W.2d at 293; Thate v. Texas &
Pac. Ry. Co., 595 S.W.2d 591, 601 (Tex.App. Dallas 1980). In this
case, Sartin proved a reasonable probability of future x-rays, MRIs
and CAT scans and presented evidence of the cost of these
procedures in the past. For these reasons, the issue of future
medical expenses was properly before the jury.
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Second, Wal-Mart argues that the evidence is insufficient to
support damages for future pain and mental anguish. Matters of
pain and suffering are necessarily speculative, and it is within
the particular province of the jury reasonably to set the amount of
such damages. Hicks v. Ricardo, 834 S.W.2d 587, 591 (Tex.App.
Houston 1992). Awards for mental anguish survive sufficiency of
the evidence challenge when the plaintiff introduces direct
evidence of the nature, duration, and severity of the anguish,
thereby establishing a substantial disruption in the plaintiff’s
daily routine. Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.
1994). Mental anguish may be inferred from injuries accompanied by
physical pain proximately caused by the defendant. Brookshire
Brothers, Inc. v. Wagnon, 979 S.W.2d 343, 353 (Tex.App. Tyler
1998). In this case, Sartin presented her own and her husband’s
testimony about continuing physical pain. Dr. Cooper testified
that the Wal-Mart injury was at least partly to blame for this
pain. This damage issue was also, therefore, properly before the
jury.
II
Wal-Mart’s second major argument attacks the district court’s
decision to exclude a videotape. This video was taken just over a
week before trial, on November 28, 1998. It showed Sartin working
in her garden without visible discomfort. At trial, however, she
testified to an inability to bend over and lift anything without
severe pain.
3
Though it is not clear when defense counsel obtained
notification or a copy of the videotape, counsel faxed Sartin’s
lawyer notification of the videotape’s existence on Friday,
December 4, at 5:21 p.m., and sent a copy of the videotape for
Saturday delivery to Sartin’s lawyer’s office. That office was
closed on Saturday. Trial began on Monday, December 7. A copy of
the videotape did not arrive at Sartin’s lawyer’s office until
about 2:00 p.m. that afternoon, and the plaintiff rested at 3:00
p.m.
For these reasons, the plaintiff’s counsel filed a motion to
strike the videotape for untimeliness and for a failure to provide
the name of the witness who would present it. The district court,
however, inexplicably excluded the videotape as a “surveillance
deposition” for failure to follow the rules and regulations with
respect to depositions.
Though the district court’s reason for the exclusion was
erroneous, we will not disturb the district court’s improperly
reasoned decision if there are alternative meritorious grounds for
that judgment. SEC v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct.
454, 87 L.Ed. 626 (1943); Metallurgical Industries, Inc. v.
Fourtek, Inc., 790 F.2d 1195, 1206 (5th Cir. 1986). The proper
grounds for excluding this evidence was its untimeliness. Wal-Mart
has not presented any justification for the tardy disclosure to
defense counsel. Nor do the affidavits on this subject explain the
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delay between the surveillance and disclosure. Thus, the evidence
was properly excluded.
Wal-Mart contends that the district court was biased because,
while denying it the use of its videotape, the court allowed Sartin
to use undisclosed audio tape recordings of an interview between
Sartin’s lawyer and a defense witness to impeach the witness.
Under Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 517 (5th
Cir. 1993), however, these two recordings are distinguishable.
Chiasson held that videotapes similar to Wal-Mart’s had value as
substantive evidence as well as for impeachment. Wal-Mart’s
videotape does as well. It is probative as to actual harm to
Sartin and the effect on her quality of life as a result of her
slip and fall. The tape recordings by Sartin’s lawyer, however,
had no substantive value: the impeaching statement concerned the
clarity of the witness’s memory, not the specific events
surrounding the accident. Thus, since the audio tapes were solely
for impeachment, they did not need to be disclosed.
III
Wal-Mart’s last argument is meritless. The company asserts
that Texas law prohibits courts from informing juries of the
consequences of their factual findings, and that the jury charge
mentioning that a finding of contributory negligence would reduce
the award to the plaintiffs was, in this diversity case, reversible
error. But it is well established that while state law governs the
substance of the jury instructions, the manner of giving
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instructions is controlled by federal law. Martin v. Texaco, 726
F.2d 207, 216 (5th Cir. 1984). Unlike the Texas courts, federal
courts are free to tell juries the effects of their answers. Id.
Thus, the instruction in this case was not in error.
IV
For the reasons stated herein, the verdict is
A F F I R M E D.
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