Opinion issued July 21, 2015.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-01068-CV
———————————
DIAMOND OFFSHORE SERVICES LIMITED AND DIAMOND
OFFSHORE SERVICES COMPANY, Appellants
V.
WILLIE DAVID WILLIAMS, Appellee
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Case No. 2011-31922
OPINION
In this Jones Act case, Willie David Williams sued Diamond Offshore
Services Limited and Diamond Offshore Services Company (collectively,
“Diamond Offshore”) for negligence and unseaworthiness arising out of an
incident in which Williams allegedly injured his back while trying to repair a piece
of machinery on board an offshore oil rig owned and operated by Diamond
Offshore. The trial court rendered judgment on the verdict in favor of Williams,
awarding Williams, once all applicable credits and offsets had been applied,
approximately $8.5 million in compensatory damages, $235,381 in pre-judgment
interest, and post-judgment interest. In three issues, Diamond Offshore contends
that (1) the trial court erroneously excluded a post-incident surveillance video
depicting Williams performing various outdoor activities; (2) the trial court
erroneously excluded evidence that Diamond Offshore paid Williams 85% of his
pre-incident salary for three years before trial; and (3) the jury’s damages awards
for past and future disfigurement, future medical expenses, loss of future earning
capacity, future pain and mental anguish, and future physical impairment were
excessive.
We affirm.
Background
Diamond Offshore owned and operated the Ocean Lexington, a drilling rig
located off the coast of Egypt in 2007–08. Williams, who had worked for
Diamond Offshore on two different occasions and in various capacities for
approximately a decade, was a mechanic on the rig. He worked on the rig in
2
alternating “hitches”: twenty-eight days on the rig, followed by twenty-eight days
off.
On the afternoon of January 7, 2008, the day before Williams was scheduled
to return to the United States, one of the drillers informed him that a set of
elevators on the rig had failed and that he needed to repair it.1 Specifically, the
driller told Williams that the rig was “going down” unless Williams repaired the
elevators. Williams testified that, to him, this directive meant, “By any means
necessary, fix it.”
Williams worked on the elevators for about thirty to forty minutes. Williams
bent over at the waist to maneuver the elevators, which weighed several hundred
pounds, into his work area. Williams did not lift the elevators; instead, he
“scoot[ed]” them around on the floor of the shop. While he worked on the
elevators, Williams felt a “sharp pain in [his] lower back after a few minutes.”
After he finished working, Williams saw the doctor onboard the rig, who advised
him to rest. The next morning, Williams bent over while sitting on his bed and felt
discomfort in his back.
Because his back continued to hurt after he arrived home, Williams saw Dr.
Patrick Barrett, an orthopedic surgeon, ten days after the incident. Although he is
an independent physician and not a company doctor, Dr. Barrett has “seen patients
1
An “elevator” is a piece of machinery that lowers pipes into the drilling hole on a
rig.
3
off and on over the years for” Diamond Offshore, and Diamond Offshore referred
Williams to Dr. Barrett after his injury in this case. Williams reported that he had
leg pain in addition to back pain. Williams also told Dr. Barrett that he had injured
his back on a rig in 2006, approximately two years before the incident at issue
here. Williams acknowledged at trial that he had had ongoing back pain since the
first incident, but that pain had “never stopped [him] from doing [his] job.”2
Upon seeing Williams, Dr. Barrett ordered an MRI of Williams’s lumbar
spine. The MRI revealed a “small central herniation” at the L4-L5 vertebrae,
“degenerative changes at multiple levels,” and a “very small central bulge” at the
L5-S1 vertebrae. Dr. Barrett saw Williams again in March 2008 after
approximately six weeks of physical therapy. Williams had “rather significant pain
in the mid to lower lumbar area,” and another MRI revealed a herniation at L1-L2,
a central disc protrusion at L4-L5, and another disc protrusion at L5-S1. In April
2008, Dr. Barrett performed a micro discectomy at L5-S1 to relieve Williams’s
lingering leg pain. Dr. Barrett testified that this surgery alleviated Williams’s leg
pain, but Williams’s back pain remained unchanged and “continue[d] to be a major
problem.” Dr. Barrett’s notes reflected that Williams was “simply unable to bend
2
The trial court also admitted MRI records dated December 5, 2005, before either
of Williams’s two onboard back injuries had occurred, which revealed
“[d]egenerative dis[c] disease of the lumbar spine.”
4
or stoop or lift more than about 20 pounds without his back bothering him quite a
bit.”
In an attempt to relieve Williams’s back pain, Dr. Barrett performed a fusion
surgery in February 2009. This surgery involved inserting screws and rods into
Williams’s back. Dr. Barrett, who testified via video deposition taken in April
2012, nearly a year and a half before trial, stated that he had seen Williams one
month prior to his deposition and that Williams still had problems with the nerve
located next to the L5 vertebrae, which caused Williams’s foot to drop and resulted
in Williams’s inability to raise his toes. Dr. Barrett testified that, in his opinion,
further surgery would probably not help relieve Williams’s lingering back pain.
Dr. Barrett acknowledged Williams’s pre-existing degenerative changes in his
back but testified that the incident at issue caused all of Williams’s current medical
problems. Dr. Barrett stated that he would not release Williams to return to his
former career on an offshore rig, and he opined that Williams “would have a hard
time maintaining any kind of gainful employment due to his chronic pain, his
chronic neurological findings; and I would professionally consider him totally
disabled at this point.” He further opined that, as a result of his chronic pain,
Williams would likely “have a hard time even sustaining sedentary type work
where he had to sit.”
5
Dr. Jose Rodriguez, another orthopedic surgeon, testified that he reviewed
Williams’s medical records but did not treat Williams. Dr. Rodriguez stated that, in
his opinion, “[t]he repetitive work that [Williams] was doing with some type of
lifting associated with it caused his ruptured disc.” Dr. Rodriguez testified that,
after the fusion surgery, even if Williams was pain free, he would still restrict
Williams to lifting not more than thirty pounds regularly and fifty pounds
infrequently to avoid damaging the fusion. Dr. Rodriguez would also place
restrictions on standing, sitting, and walking for long periods of time, as all of
these actions place stress on the lumbar spine. Dr. Rodriguez agreed with Dr.
Barrett that Williams could not return to his pre-incident offshore work. He stated
that Williams could “do light-duty work if the tolerance to his [pain] allows him to
function through a whole day of work.”
Dr. Rodriguez testified that Williams could potentially undergo another
surgery in the future to remove the screws and rods currently implanted in his
back, which would hopefully improve his pain by at least fifty percent. He
estimated that this procedure could cost up to $100,000. Dr. Rodriguez also
testified that, even if Williams undergoes this “hardware removal” surgery, he
would still have the same functional restrictions as before. He stated that Williams
will need pain medications and some kind of physical exercise regimen daily for
6
the remainder of his life, which could range in cost from $5,000 to $10,000 per
year.
Dr. Kenneth McCoin testified as Williams’s economics expert. He testified
that he calculated Williams’s past lost earning capacity, measured from the date of
the incident to the trial date, at $557,793 and his future lost earning capacity at
$2,254,275. Dr. McCoin based his calculations on Williams’s pre-incident annual
salary of $134,000, the growth rate in wages, the fringe benefits, such as health
insurance, the fact that Williams had received as a result of being employed, and
Williams’s work-life expectancy. Dr. McCoin stated on cross-examination that the
“implicit assumption” in his calculations was that Williams would never return to
any kind of work. He acknowledged that if Williams did return to work, his
calculations would need to be reduced by the amount of Williams’s new salary.
Williams no longer had tingling and numbness in his right leg after the first
surgery in April 2008, but he testified that his back pain had never gone away. He
stated that he had also developed a “foot drop problem,” where one of his feet
drags and he can no longer walk straight even on carpeted floors. Williams
testified that, since the incident, he had tried to “live [his] life and do things,” but
that he had not “held a job where [he] receive[s] a check from anyone.”
In July 2011, Williams underwent a “Functional Capacity Evaluation” that
concluded that Williams could perform “medium level work.” Diamond
7
Offshore’s counsel asked Williams about this evaluation and about Dr.
Rodriguez’s testimony that Williams could “lift 30 pounds on a frequent basis and
50 pounds on an occasional basis” and whether Williams had attempted to find a
job within those particular restrictions. Williams responded that he had not and
further testified:
[I’ve] been going through back surgery, two back surgeries. I get
injections all the time. My back hurts constantly. I just saw the
doctor three weeks ago. He wants to do exploratory surgery on my
back. It’s not just my back. Over the last year the—they have the
documentation to show you this—the nerves between my back and
my foot are not communicating anymore; and I can’t move my toes,
just my big toe. My toes are curling up under me. It’s letting my foot
drop down, and it’s progressively getting worse and worse. So, I’ve
just been talking to the doctors. They—I’m really not wanting to have
any more surgery. They can’t really promise me it’s going to do me
any good, but that’s where we’re at at this time.
Williams also testified that he can bend over, sit for a long period of time, stand for
a long period of time, and work on cars, but that it hurts him to do all of these
things.
Williams further stated that he tries to work on his property with an
excavator that he owns. He testified that, for the most part, working with the
excavator is stable and that he uses it for about thirty minutes at a time. He stated:
I never said I couldn’t work at all. That was the doctors or those other
people. I’ve never stated I couldn’t work at all. Anytime I said
anything about that, I just said it hurts. I still do these things, all of
these things. It just hurts me.
8
Williams testified that this type of work is not strenuous and that there is minimal
vibration with the excavator, although his back will start to hurt if he sits in the
excavator’s seat for long periods of time.
Diamond Offshore’s counsel asked Williams what kind of work he thought
he could do after the incident. Williams responded:
I don’t know. If you’re talking about me getting a job, I don’t know
how I would get a job. I take pain medication and muscle relaxers,
and nobody’s going to give you a job with that. I have bolts and rods
in my back, and it hurts me. I don’t know why anybody would hire
me.
Williams testified that he “feel[s] terrible” and that he cannot enjoy life the way he
used to because he cannot do things like ride motorcycles and race cars and boats
and jet skis the way he did before the incident.
Several of Williams’s friends and family members testified concerning the
impact that the incident had had on Williams. Williams presented testimony from
multiple witnesses that he had formerly been very active outdoors and with his
fourteen-year-old daughter, who often wants to do things that Williams can no
longer do, such as waterskiing and attending softball games. These witnesses
testified that there is “a lot of stress” on Williams’s family after the incident. The
witnesses agreed that Williams tries to engage in the same activities that he used to
enjoy, but that he cannot participate for very long, and that he often looks
“defeated.”
9
Williams’s wife testified that since the incident Williams had been angry and
depressed “a lot” and “[r]eal agitated,” that they argue, and that Williams “feels
like he’s not worth what he used to be worth” because he can no longer provide for
the family or do the things he used to enjoy doing. She also testified that Williams
“still is miserable” and that Williams’s injuries have affected his sleep schedule.
Now, Williams hardly ever sleeps at night and instead sleeps “all day.”
Thomas Meunier, a vocational rehabilitation counselor, testified that he met
with Williams, performed several tests and evaluations of Williams, and reviewed
Williams’s medical records, including the July 2011 functional capacity
evaluation, in arriving at a conclusion concerning whether Williams would be able
to return to work. Meunier testified that Williams’s past work history involved
semi-skilled to skilled mechanic work, but that Williams did not have any
transferrable skills given the postural and other work restrictions now in place on
him after the incident. Meunier stated:
I don’t think [Williams] has a residual capacity to maintain
employment even at a lower-exertional level because of chronic pain
of the medicals that I read from his treating physician. He, I believe,
is motivated. I think he would be working if he could, but I don’t
think he’s going to be able to successfully compete for employment.
And I think the bigger problem he would have, even if he were able to
secure some type of employment, would be able to maintain the
employment, show up every day. So, I—I think that he has lost
access to the competitive labor market, and he has a corresponding
loss of earning capacity.
10
Meunier disagreed with the conclusion reached in the functional capacity
evaluation that Williams could do “medium level” work, pointing out that
Williams’s ability to “stand and walk, bend, [and] stoop, are limited to an
occasional basis.” Meunier also did not agree that Williams could return to
performing any skilled work, such as heavy equipment operation or mechanics, on
a stable and consistent basis. Furthermore, Meunier discounted the functional
capacity evaluation on the basis that it was two years old at the time of trial and
medical testimony indicated that Williams’s condition had worsened since that
evaluation had been performed.
Bruce Brawner testified as Diamond Offshore’s vocational rehabilitation
counselor. Brawner relied upon the functional capacity evaluation and opined that
Williams could likely seek employment as a dispatcher, a job involving light
mechanic work, or perhaps car sales or customer service. He researched the
median pay in Mississippi, where Williams lives, for these professions and
concluded that, if Williams found one of these jobs, Williams could potentially
make around $38,600 per year. Brawner testified that each of these jobs is
consistent with the physical restrictions that Dr. Rodriguez testified needed to be
applied to any of Williams’s future jobs.
Dr. Kenneth Boudreaux, an economist, testified for Diamond Offshore
concerning potential economic loss sustained by Williams. Dr. Boudreaux testified
11
that he calculated Williams’s past lost earning capacity as $504,045. With respect
to loss of future earning capacity, Dr. Boudreaux stated that Diamond Offshore’s
counsel asked him to assume that Williams could earn roughly $38,600 per year in
the future. He calculated Williams’s lost future earning capacity at $760,435.3 Dr.
Boudreaux clarified that the figure for past plus future lost earning capacity
equaled $1.264 million.
Dr. Christopher Cenac, an orthopedic surgeon in Louisiana, testified as
Diamond Offshore’s medical expert. Dr. Cenac reviewed Williams’s medical
records and evaluated him in person in February 2012. Dr. Cenac agreed that
further relief from Williams’s symptoms was not likely, even if he did undergo a
hardware-removal surgery in the future, and that Williams had reached maximum
medical improvement. Dr. Cenac noted that Williams has “post-surgical
scarring . . . in the midline [of Williams’s back] near the incision.” Dr. Cenac also
testified, however, that based on the July 2011 functional capacity evaluation and
Williams’s responses on the Oswestry pain questionnaire, which were consistent
with “patients that are either bed bound or exaggerating their symptoms,” Williams
was employable in the future. He ultimately concluded that “hardware removal”
would be appropriate and that Williams “was employable with a medium level of
3
Dr. Boudreaux stated that the $760,000 figure represents the midpoint of a
“reasonable” range of lost future earning capacity figures, with $668,000 at the
lower end and $853,000 at the upper end.
12
physical activity based upon the findings noted on the [functional capacity
evaluation], subsequent to extensive vocational rehabilitative efforts.”
At a pre-trial hearing and in written objections, Williams objected to the
admissibility of two pieces of evidence offered by Diamond Offshore. Williams
first objected to evidence that Diamond Offshore had, “during the first couple of
years of [Williams’s] disability,” paid Williams approximately eighty-five percent
of his former salary, totaling over $260,000. Williams argued that these payments
were part of a Diamond Offshore procedure “whereby the employee is paid a
portion of his salary as an ‘advance’ against any future settlement
agreement . . . and then given the remaining 15% to ‘make him whole’ when he
recovers from his disability and returns to work.” Williams argued that evidence of
these payments was inadmissible pursuant to Texas Rule of Evidence 408.
Williams stated that he would be willing to stipulate that Diamond Offshore was
entitled to a “post-verdict credit or offset of these payments.”
Diamond Offshore argued that the payments did not constitute a settlement,
that it did not make the payments in attempt to persuade Williams to release any
claims against it, and that these payments were part of its standard procedure
whenever an employee suffered an injury. Diamond Offshore’s counsel stated that
the company would “advance wages on [the employee’s] salary to the point that
they receive 85 percent of whatever they were making before they got hurt.”
13
Diamond Offshore argued that these payments were not classified as a settlement,
but rather as earnings upon which Williams paid taxes.
The trial court ruled that the evidence was inadmissible. The court agreed to
give Diamond Offshore a corresponding offset in the judgment, if the jury found in
favor of Williams, but it refused to let Diamond Offshore present evidence that it
had made these payments to Williams.
Williams also sought to exclude a post-incident surveillance video of him
taken in 2012, nearly five years after his injury occurred, by an investigator hired
by Diamond Offshore. Williams stated:
Along with showing him driving and walking in several locations,
these surveillance videos contain views of the plaintiff engaged in
various activities near and around his residence, including performing
various repairs on his four-wheeler vehicle, operating his mini-
excavator to clear some debris near his home, and certain activities
involving some bending and lifting, activities which he has never
denied, under oath or otherwise, that he has attempted and was able to
perform (nor are inconsistent with his medical limitations).
He argued that the video has no impeachment value because he has never asserted
that he cannot do any of the activities depicted in the video. Williams further
argued that the prejudicial effect of the video far outweighed any probative value
that it might have and that the video could not serve as substantive evidence “since
such a minimal and random view of plaintiff’s life cannot possibly be a fair
representation of his disabilities or abilities since his injury.”
14
Diamond Offshore argued that the video consisted of surveillance footage
taken on three consecutive days in December 2012 and depicted Williams “with
evident ease to be seen bending, stooping, reaching, and throwing as he manually
picks up debris on his property and puts it in the back of a trailer. He gets back in
his trailer, hauls it off. He’s apparently disposing of stuff.” In the video, Williams
operates machinery “for an extended period of time” and repairs vehicles.
Diamond Offshore argued that the video was admissible for both impeachment
purposes and as substantive evidence relating to Williams’s post-incident physical
condition.
The trial court ruled that Diamond Offshore “can keep [the video] in your
reserve bank for impeachment, and that’s it. So, if [Williams] opens the door, then
we’ll take a look at it.” Diamond Offshore requested that the trial court revisit this
ruling on several occasions throughout the proceedings, including during Dr.
Rodriguez’s testimony and after cross-examination of Williams, both of which,
Diamond Offshore’s counsel argued, contradicted the contents of the video. The
trial court refused to admit the surveillance video.
The jury found that both Diamond Offshore and Williams were negligent
and that Diamond Offshore failed to furnish a seaworthy vessel. The jury
apportioned 30% fault to Diamond Offshore, 60% fault to the vessel Ocean
Lexington, and 10% fault to Williams. The jury awarded Williams $500,000 in
15
past physical pain and mental anguish, $3.4 million in future physical pain and
mental anguish, $557,793 in loss of past earning capacity, $2,254,275 in loss of
future earning capacity, $250,000 in past physical impairment, $1.7 million in
future physical impairment, $250,000 in past disfigurement, $325,000 in future
disfigurement, and $440,000 in future medical care expenses.
The trial court entered judgment on the verdict in favor of Williams. The
final judgment stated:
Plaintiff Willie David Williams recover from Defendants Diamond
Offshore Services Limited and Diamond Offshore Services Company,
jointly and severally, the total sum of $8,512,068 as actual damages
(which represents the total recovery less the ten percent (10%) of fault
attributed to Willie David Williams by the jury, then less an offset of
$197,293 reduction for the net advances paid by Defendants) . . . .
The trial court also awarded Williams pre- and post-judgment interest. This appeal
followed.
Exclusion of Evidence
In its first issue, Diamond Offshore contends that the trial court erroneously
excluded a post-incident surveillance video taken by an investigator hired by
Diamond Offshore that depicted Williams performing various outdoor activities
over the course of three days in December 2012. In its second issue, Diamond
Offshore contends that the trial court erroneously excluded evidence that, for
several years before trial, it paid Williams 85% of his pre-incident salary.
16
A. Standard of Review
The admission or exclusion of evidence “is committed to the trial court’s
sound discretion.” Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000).
A trial court abuses its discretion when it acts without reference to any guiding
rules or principles. U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex.
2012); City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995). A trial
court does not abuse its discretion simply because the appellate court would have
ruled differently under the same circumstances. See E.I. DuPont de Nemours &
Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). We uphold a trial court’s
evidentiary ruling “if there is any ground for doing so, even if the trial court did not
rely upon the proper ground and even if the defendant did not assert a proper
ground for excluding the evidence.” K.J. v. USA Water Polo, Inc., 383 S.W.3d
593, 610 (Tex. App.—Houston [14th Dist.] 2012, pet. denied); see also State Bar
of Tex. v. Evans, 774 S.W.2d 656, 658 n.5 (“[E]ven where the trial court errs in
sustaining a specific untenable objection, an appellate court should uphold the
ruling if there is any other ground for doing so, even though not urged below.”).
For the exclusion of evidence to constitute reversible error, the complaining
party must demonstrate (1) that the trial court committed error, and (2) that the
error was reasonably calculated to, and probably did, cause rendition of an
improper judgment. Hahn v. Love, 394 S.W.3d 14, 34 (Tex. App.—Houston [1st
17
Dist] 2012, pet. denied). “[A] successful challenge to evidentiary rulings usually
requires the complaining party to show that the judgment turns on the particular
evidence excluded or admitted.” Able, 35 S.W.3d at 617. We generally do not
reverse a judgment based on an erroneous ruling on evidence admissibility when
the evidence in question is cumulative and is not controlling on a material issue
dispositive to the case. Id. In determining if the excluded evidence probably
resulted in the rendition of an improper judgment, we review the entire record. Id.;
Hahn, 394 S.W.3d at 35.
B. Exclusion of Surveillance Video
Diamond Offshore first challenges the trial court’s decision to exclude its
proffered post-incident surveillance video, an eighty-minute video that depicted
Williams performing various outdoor tasks, such as using his excavator to haul
debris and working on a vehicle, over the course of three days in December 2012.
It argues that the trial court erroneously determined that the surveillance video
could be used solely for impeachment purposes and that, instead, the video was
admissible as both substantive evidence relevant to the extent of Williams’s
injuries and as impeachment evidence. Williams, however, contends that the
prejudicial effect of the “heavily edited” video substantially outweighs any
probative value, and it is, therefore, inadmissible under Rule 403. He also argues
that Diamond Offshore did not establish the authenticity of the video, as required
18
by Texas Rule of Evidence 901(a). See TEX. R. EVID. 901(a) (“The requirement of
authentication or identification as a condition precedent to admissibility is satisfied
by evidence sufficient to support a finding that the matter in question is what its
proponent claims.”). Finally, he argues that this evidence was cumulative. See
TEX. R. EVID. 403.
Texas courts have admitted post-accident surveillance videos depicting the
activities of injured plaintiffs in personal injury cases, but no Texas case addresses,
as a specific point on appeal, the admissibility and propriety of this evidence. See
Huston v. United Parcel Serv., Inc., 434 S.W.3d 630, 642 (Tex. App.—Houston
[1st Dist.] 2014, pet. denied) (considering post-accident surveillance video in
factual sufficiency review of damages award; appellant plaintiff did not challenge
admissibility of video on appeal); Nat’l Freight, Inc. v. Snyder, 191 S.W.3d 416,
424 (Tex. App.—Eastland 2006, no pet.) (upholding exclusion of six-second
portion of surveillance video in which plaintiff made obscene gesture; appellant
did not challenge trial court’s admission of remainder of video); Dunn v. Bank-Tec
S., 134 S.W.3d 315, 329 & n.7 (Tex. App.—Amarillo 2003, no pet.) (addressing
whether surveillance video had been properly authenticated and stating that
appellants waived any argument that prejudicial effect of video substantially
outweighed video’s probative value); Home Ins. Co. v. Garcia, 74 S.W.3d 52, 56–
57 (Tex. App.—El Paso 2002, no pet.) (considering surveillance video in factual
19
sufficiency review; plaintiff did not challenge admissibility of video). Both
Diamond Offshore and Williams thus rely on case law from other jurisdictions to
support their contentions.
In Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993), the
Fifth Circuit considered whether a post-accident surveillance video constituted
substantive evidence in addition to merely impeachment evidence in a personal-
injury case. The Fifth Circuit defined “substantive evidence” as evidence that “is
offered to establish the truth of a matter to be determined by the trier of fact.” Id.
at 517. The plaintiff, Chiasson, claimed that as a result of her injury she had
suffered “great physical and mental pain and anguish,” and she sought damages to
“loss of enjoyment from the activities of her normal life.” Id. The court therefore
noted that “the severity of [Chiasson’s] pain and the extent to which she has lost
the enjoyment of normal activity are among the key issues a jury must decide in
calculating her damages.” Id. The court concluded that evidence that “would tend
to prove or disprove such losses” should be considered “substantive” evidence. Id.
The court also noted that Chiasson had testified at trial that she is able to engage in
her usual daily activities, but that she cannot do so “for too long of a period of
time” before she starts to feel pain. Id. The court doubted whether the surveillance
video at issue “discredits her testimony at all,” but still ultimately held that, not
20
only did the video constitute substantive evidence, instead of merely impeachment
evidence, but that the importance of the video was “obvious.”4
The Fifth Circuit affirmed its reasoning in Chiasson in Baker v. Canadian
National/Illinois Central Railroad, 536 F.3d 357, 369 (5th Cir. 2008). After the
his accident, Baker alleged that his injuries and post-accident limitations included
“the inability to count money, make change, or be in crowds.” Id. Illinois Central
offered a surveillance video that depicted Baker “spending long periods of time in
casinos,” and Baker argued, among other things, that the video “informed jurors
that he engaged in activities many people consider immoral.” Id. The Fifth Circuit
held, pursuant to Chiasson, that this video constituted substantive evidence. Id.
The court also noted that the issue of Baker’s “post-accident quality of life was
hotly disputed” and that Baker’s witnesses “testified in details regarding the
allegedly severe post-accident limitations Baker face[d].” Id. The court ultimately
concluded that the probative value of the video that contradicted Baker’s witnesses
“weighs heavily against a hypothetical juror’s moral aversion to gambling.” Id.
4
The precise issue in Chiasson was whether the trial court erred in admitting the
surveillance video solely as impeachment evidence when, pursuant to Federal
Rule of Civil Procedure 26(b)(1), which allows the “non-disclosure of evidence to
be used solely for impeachment,” Zapata had not disclosed the existence of the
video to Chiasson pre-trial. 988 F.2d 513, 514 (5th Cir. 1993). Because the
surveillance video at issue constituted substantive evidence, instead of simply
impeachment evidence, the Fifth Circuit held that the trial abused its discretion
“by allowing non-disclosure and admitting the tape into evidence.” Id. at 518.
21
The court held that the trial court did not abuse its discretion by admitting the
surveillance video. Id.
In James v. Carawan, 995 So.2d 69 (Miss. 2008), the Mississippi Supreme
Court addressed whether the trial court abused its discretion in excluding a post-
accident surveillance video of the plaintiff, who had injured her back, riding
rollercoasters at a Six Flags amusement park. In concluding that the trial court did
abuse its discretion in excluding the video, the court noted that “[a] reasonable
juror could conclude that the Six Flags video casts doubt on the severity of
Carawan’s injuries,” that “a reasonable juror might conclude that the Six Flags
video has a tendency to show that Carawan may not have been as weakened or
vulnerable as she indicated to her doctors or as her medical treatments suggest,”
that “[t]he video also could have been relevant to whether or not she truly had been
unable to work,” that the video was relevant to the question of appropriate
damages for pain and suffering, and that “this video might shed doubt upon the
merits of Carawan’s case as a whole.” Id. at 76. The court concluded,
We already have determined that the video was relevant. Aside from
its damaging effect to Carawan’s case, we are unable to determine
how its admission would unfairly prejudice Carawan. A reasonable
juror could understand that the video calls into question the severity of
Carawan’s injuries prior to July 29, 2003, and therefore challenged the
necessity of at least some of her medical expenses, the validity of her
lost wages, the extent of her pain and suffering, and the legitimacy of
her entire claim.
22
Id. at 77–78; see also Zegarelli v. Hughes, 814 N.E.2d 795, 798 (N.Y. 2004)
(holding that trial court committed reversible error in excluding post-accident
videotape of injured plaintiff shoveling snow after plaintiff testified that he took
“two or three swipes” of parking area with shovel); Sweet v. Pace Membership
Warehouse, Inc., 795 A.2d 524, 528 (R.I. 2002) (reversing trial court’s decision to
exclude post-accident surveillance video and directing trial court, on remand, to
evaluate admissibility of video under Rule 403).
Williams, in contrast, cites cases from other jurisdictions holding that the
trial court did not abuse its discretion in excluding post-accident surveillance
videos. In one line of cases from Illinois, the appellate court, in concluding that
the danger of unfair prejudice outweighed the probative value of the surveillance
videos, focused on the facts that the videotapes were edited and only showed the
plaintiff outside, “giv[ing] the impression that [the] plaintiff’s activity is constant”
and that the plaintiff “can sustain labor-intensive activities over a period of time
without rest or without experiencing pain.” See Carroll v. Preston Trucking Co.,
812 N.E.2d 431, 435–36 (Ill. Ct. App. 2004); see also Donnellan v. First Student,
Inc., 891 N.E.2d 463, 478 (Ill. Ct. App. 2008) (relying on Carroll to affirm
exclusion of surveillance video and stating, “Despite defendant’s contention that
[the videographer] testified that the video was not edited to demonstrate only the
period plaintiff was working and that he filmed every moment that he could, the
23
video leaves the impression that plaintiff was working for extended periods of
time”). Williams also cites Quinn v. Wal-Mart Stores, Inc., 774 So. 2d 1093, 1098
(La. Ct. App. 2000), for the proposition that the trial court properly excludes a
post-accident surveillance video when the injured plaintiff testifies that she can
perform the activities depicted in the video and when the video does “not fairly
indicate whether [the plaintiff] did experience pain after engaging in these
activities.” See also Orgeron v. Tri State Road Boring, Inc., 434 So. 2d 65, 68–69
(La. 1983) (noting, in holding that workers’ compensation carrier had “no
reasonable basis for terminating benefits” even though videotape existed of
claimant performing physical labor at construction sites after injury, that “evidence
in the form of moving pictures or videotapes must be approached with great
caution because they show only intervals of the activities of the subject, they do
not show rest periods, and do not reflect whether the subject is suffering pain
during or after the activity”).
Here, Diamond Offshore offered a surveillance video that depicts Williams
performing various activities outside his house, including using his excavator to
haul away scrap materials and repairing a vehicle. The hour-long video contains
footage obtained over three consecutive days in December 2012. The video only
reflects Williams’s outside activities and does not reflect what he did when he was
not outside or whether he was in pain as a result of his activities. During his
24
testimony, Williams acknowledged that he could perform the activities depicted in
the surveillance video, although he emphasized that he could only engage in these
activities for short periods of time before he felt pain and that he would be in pain
later after engaging in these activities. Williams’s friends and family members
testified to essentially the same facts.
A trial court’s evidentiary rulings are committed to the court’s “sound
discretion,” and we must uphold the court’s ruling if there is any basis for doing so.
See Able, 35 S.W.3d at 617; USA Water Polo, 383 S.W.3d at 610. Here, the trial
court did not state a reason for its ruling; instead, it merely stated at the pre-trial
hearing that Diamond Offshore could “keep [the surveillance video] in your
reserve bank for impeachment” and that, if Williams “opens the door, then we’ll
take a look at it.” When Diamond Offshore offered the video after Dr. Rodriguez’s
testimony, the court stated, “Ruling stands the same,” and when Diamond Offshore
offered the video after cross-examination of Williams, the court stated, “No, not
admitting,” without providing a rationale. No Texas case squarely addresses the
issue present here—the admissibility of post-accident surveillance videotapes as
either substantive or impeachment evidence—and cases from other jurisdictions
have emphasized the trial court’s discretion in ruling on the admissibility of such
evidence, upholding trial courts’ rulings admitting post-accident surveillance
videos and upholding rulings excluding this evidence. In the absence of authority
25
binding on this Court, we cannot conclude that the trial court abused its discretion
in excluding the post-accident surveillance video offered by Diamond Offshore.
The trial court could have reasonably determined that the proffered video, which
contained clips from three different days of surveillance edited together into one
continuous hour-long video and depicted Williams performing activities that he
admitted that he could do, albeit with pain later, created an impression that
Williams could engage in physical activity for long periods of time without
needing rest and without apparent pain and thus that the prejudicial effect of the
video outweighed the video’s probative value. See Donnellan, 891 N.E.2d at 478;
Carroll, 812 N.E.2d at 435–36; Quinn, 774 So. 2d at 1098; see also USA Water
Polo, 383 S.W.3d at 610 (stating that we uphold trial court’s evidentiary rulings “if
there is any ground for doing so, even if the trial court did not rely upon the proper
ground and even if the defendant did not assert a proper ground for excluding the
evidence”). We therefore hold that the trial court did not abuse its discretion in
excluding the surveillance video proffered by Diamond Offshore.
We overrule Diamond Offshore’s first issue.
C. Exclusion of Salary Payments
Diamond Offshore also challenges the trial court’s exclusion of evidence
that, for several years pre-trial, Diamond Offshore paid Williams 85% of his pre-
incident salary, totaling over $260,000. Diamond Offshore argues on appeal that
26
excluding this evidence left the erroneous impression with the jury that Williams
had no income to provide for his family during the years between the incident and
the trial, that Diamond Offshore “left [Williams] high and dry during his
recovery,” and that Diamond Offshore did not care about its employees, which
caused the jury to use the compensatory damages awards to punish Diamond
Offshore. The trial court excluded the evidence but noted on the record that, if the
jury returned a verdict in Williams’s favor, the court would offset the damages
award by the amount that Diamond Offshore had previously paid to Williams. The
trial court ultimately discounted the award to Williams by $197,253 as a result of
“net advances” paid to Williams by Diamond Offshore.
Assuming, without deciding, that the trial court erred when it excluded
evidence that Diamond Offshore had paid Williams 85% of his pre-incident salary,
Diamond Offshore has not demonstrated that this exclusion constitutes reversible
error. See Able, 35 S.W.3d at 617 (holding that successful challenge to evidentiary
ruling generally requires complaining party to show judgment turned on excluded
evidence); Hahn, 394 S.W.3d at 34 (stating that, to be reversible, error must be
reasonably calculated to, and probably did, cause rendition of improper judgment).
As Diamond Offshore acknowledges, the trial court offset the ultimate damage
award in the final judgment to account for the amounts paid to Williams.
27
Diamond Offshore’s arguments of harm as it relates to the exclusion of these
payments are, however, entirely speculative. There is no indication in the record
that the jury inflated one of the damages awards in an attempt to punish Diamond
Offshore for a misperception that Diamond Offshore abandoned Williams and left
him in a precarious financial situation prior to trial. Instead, the record reflects that
Williams underwent two surgeries as a result of the incident, that he suffers from
“constant” back pain and likely will for the rest of his life, that he suffers from
progressive “foot drop,” that he can no longer engage in outdoor activities and
activities with his daughter due to his chronic pain, and that he will likely be
unable to work even in “light” or sedentary jobs in the future due to his pain, all of
which, as we explain further below, justifies the jury’s damages awards. We
conclude that Diamond Offshore has not demonstrated that the trial court’s
exclusion of evidence that Diamond Offshore paid Williams 85% of his pre-
incident salary “was reasonably calculated to, and probably did, cause rendition of
an improper judgment.” Hahn, 394 S.W.3d at 34. We hold that the trial court did
not commit reversible error by excluding this evidence.
We overrule Diamond Offshore’s second issue.
Sufficiency of the Evidence of Damages
In its third issue, Diamond Offshore challenges the sufficiency of the
evidence to support the jury’s awards for past and future disfigurement, future
28
medical care expenses, loss of future earning capacity, future physical pain and
mental anguish, and future physical impairment.5
Texas courts of appeals have the power to review the excessiveness of
damage awards and to order remittitur in Jones Act cases. Maritime Overseas
Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1998). We must make our own
“detailed appraisal of the evidence bearing on damages.” Id.
The standard of review for an excessive-damages complaint in a Jones Act
case is factual sufficiency of the evidence. Id. In reviewing a challenge to the
factual sufficiency of the evidence, we “must consider and weigh all of the
evidence and should set aside the judgment only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust.” Arias v.
Brookstone, L.P., 265 S.W.3d 459, 468 (Tex. App.—Houston [1st Dist.] 2007, pet.
denied) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam)); see
also Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (same). The
fact-finder is the sole judge of the witnesses’ credibility, and it may choose to
believe one witness over another, and a reviewing court may not impose its own
opinion to the contrary. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex.
2005); Arias, 265 S.W.3d at 468; see also Lanier v. E. Founds., Inc., 401 S.W.3d
5
We note that Diamond Offshore does not challenge on appeal the sufficiency of
the evidence to support the jury’s finding that Diamond Offshore was negligent
and that its negligence “was a cause, in whole or in part,” of Williams’s injuries.
29
445, 455 (Tex. App.—Dallas 2013, no pet.) (“When we review the evidence, we
may not reweigh it and set aside the verdict merely because we feel a different
result is more reasonable.”). Because it is the fact-finder’s province to resolve
conflicts in the evidence, we assume that it resolved all such conflicts in favor of
the verdict if reasonable people could do so. City of Keller, 168 S.W.3d at 819;
Arias, 265 S.W.3d at 468.
The jury generally has great discretion in considering the evidence relevant
to the issue of damages. See Lanier, 401 S.W.3d at 455 (citing McGalliard v.
Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986)); Tagle v. Galvan, 155 S.W.3d 510,
518 (Tex. App.—San Antonio 2004, no pet.) (“In assessing personal injury
damages, the jury has wide latitude in determining the amount of the award.”).
“The process of awarding damages for amorphous, discretionary injuries such as
pain and suffering is inherently difficult because the alleged injury is a subjective,
unliquidated, nonpecuniary loss.” Id. The element of pain and suffering is “not
subject to precise mathematical calculations or objective analysis and is
particularly within the province of the jury to resolve and to determine appropriate
amounts.” Id. “Once the existence of some pain, mental anguish and
disfigurement has been established, there is no objective way to measure the
adequacy of the amount awarded as compensation, which is generally left to the
discretion of the fact finder.” Figueroa v. Davis, 318 S.W.3d 53, 62 (Tex. App.—
30
Houston [1st Dist.] 2010, no pet.) (quoting Pentes Design, Inc. v. Perez, 840
S.W.2d 75, 80 (Tex. App.—Corpus Christi 1992, writ denied)).
Issues such as physical impairment are necessarily speculative, “and it is
particularly within the jury’s province to resolve these matters and determine the
amounts attributable thereto.” Lanier, 401 S.W.3d at 455; Figueroa, 318 S.W.3d
at 62 (“The amount of damages awarded for pain and suffering and disfigurement
are necessarily speculative and each case must be judged on its own facts.”). To
recover damages for physical impairment, “the effect of any physical impairment
must be substantial and extend beyond any pain, suffering, mental anguish, lost
wages or diminished earning capacity.” Doctor v. Pardue, 186 S.W.3d 4, 18 (Tex.
App.—Houston [1st Dist.] 2005, pet. denied) (quoting Golden Eagle Archery, Inc.
v. Jackson, 116 S.W.3d 757, 772 (Tex. 2003)). The jury may consider “loss of
enjoyment of life” as a factor in assessing damages for physical impairment. Id.
Courts have defined disfigurement as “that which impairs the appearance of
a person, or that which renders unsightly, misshapen or imperfect, or deforms in
some manner.” Figueroa, 318 S.W.3d at 64 (quoting Pardue, 186 S.W.3d at 18).
The fact that the disfigurement, such as a scar, is located underneath clothing and
may not generally be visible, does not render disfigurement non-compensable. See
Wal-Mart Stores, Inc. v. Tinsley, 998 S.W.2d 664, 673 (Tex. App.—Texarkana
1999, pet. denied) (holding that “small” surgical scar located on plaintiff’s lower
31
back and hip that was covered by clothing was compensable). Future
disfigurement is “necessarily speculative,” and “there is no mathematical yardstick
by which one can measure damages for it.” Figueroa, 318 S.W.3d at 64 (quoting
Tri-State Motor Transit Co. v. Nicar, 765 S.W.2d 486, 494 (Tex. App.—Houston
[14th Dist.] 1989, no writ)). Proof of additional scarring or deforming is not
required to recover damages for future disfigurement, although it may be
considered as a factor in determining damages. Hopkins Cnty. Hosp. Dist. v. Allen,
760 S.W.2d 341, 344 (Tex. App.—Texarkana 1988, no writ). Recovery for future
disfigurement includes recovery for future embarrassment caused by the
disfigurement. Id.
The Texas Supreme Court has defined “mental anguish” as a “relatively high
degree of mental pain and distress” that is “more than mere disappointment, anger,
resentment or embarrassment.” Parkway Co. v. Woodruff, 901 S.W.2d 434, 444
(Tex. 1995). To survive a sufficiency challenge, the plaintiff must have introduced
direct evidence of the nature, duration, and severity of his mental anguish,
establishing a substantial disruption in his daily routine. Id.; Finley v. P.G., 428
S.W.3d 229, 235 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (“[A]n award of
mental anguish damages may be supported by some evidence of ‘a high degree of
mental pain and distress’ that is ‘more than mere worry, anxiety, vexation,
embarrassment, or anger.’”). If compensable mental anguish has been established,
32
fixing the exact amount of damages is “generally left to the discretion of the fact
finder,” although the amount must be “fair and reasonable compensation.” Finley,
428 S.W.3d at 235 (quoting Figueroa, 318 S.W.3d at 62). The injured party can
establish mental anguish through his own testimony explaining how he felt and
how the injury disrupted his life. Tagle, 155 S.W.3d at 519.
Loss of future earning capacity is the plaintiff’s diminished capacity to earn
a living after trial. Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21, 35 (Tex.
App.—Tyler 2003, pet. denied). Proof of lost earning capacity is always uncertain
and is left largely to the jury’s discretion. Rigdon Marine Corp. v. Roberts, 270
S.W.3d 220, 232 (Tex. App.—Texarkana 2008, pet. denied). To support an award
of damages for loss of future earning capacity, the plaintiff must introduce
evidence sufficient to allow the jury to reasonably measure earning capacity in
monetary terms. Tagle, 155 S.W.3d at 519. The plaintiff can introduce evidence
of past earnings; his stamina, efficiency, and ability to work with pain; the
weaknesses and degenerative changes that will naturally result from the plaintiff’s
injury; and the plaintiff’s work-life expectancy. Id. The plaintiff must introduce
some evidence that he had the capacity to work prior to the injury and that his
capacity was impaired as a result of the injury. Id.
Similarly, courts have held that the award of future medical expenses rests
within the jury’s sound discretion. Rosenboom Mach. & Tool, Inc. v. Machala,
33
995 S.W.2d 817, 828 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). The jury
can make its determination of the amount of future medical expenses based on the
injuries suffered, the medical care rendered before trial, the progress toward
recovery under the treatment received, and the condition of the injured party at the
time of trial. Id. To sustain an award of future medical expenses, the plaintiff must
present evidence establishing that, in all reasonable probability, future medical care
will be required and the reasonable cost of that care. Id.; see Nat’l Freight, Inc. v.
Snyder, 191 S.W.3d 416, 422 (Tex. App.—Eastland 2006, no pet.). The plaintiff is
not required to establish such costs through expert testimony. See Snyder, 191
S.W.3d at 426. Because “‘an award of future medical expenses . . . lies largely
within the factfinder’s discretion,’ appellate courts are especially hesitant to disturb
a fact-finder’s conclusion in this regard.” Finley, 428 S.W.3d at 234; 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 jury’s award of these damages.”).
A. Disfigurement
Diamond Offshore contends that legally insufficient evidence supports the
jury’s award of $575,000 for past and future disfigurement, or, in the alternative,
34
that the award is excessive. Diamond Offshore contends that no witness testified
about any external scarring and thus no evidence supports the disfigurement award.
As Williams points out, however, Diamond Offshore’s own medical expert,
Dr. Cenac, testified that, as a result of his two back surgeries, Williams has some
“post-surgical scarring” near the incision on his back. The fact that this scar is in a
location of the body that is usually covered up by clothing does not preclude a
disfigurement award. See Tinsley, 998 S.W.2d at 673 (holding that evidence of
“small” surgical scar located on plaintiff’s back and hip constituted compensable
disfigurement award).
Furthermore, “disfigurement” is not limited to scarring, but instead
constitutes anything that “impairs the appearance of a person, or that which renders
unsightly, misshapen or imperfect, or deforms in some manner.” Figueroa, 318
S.W.3d at 64 (quoting Pardue, 186 S.W.3d at 18). Multiple witnesses, including
Williams himself, testified that he now suffers from “foot drop” due to nerve
damage from the injury, which has impaired his ability to extend several of his toes
and raise his right foot when he walks. As a result, his foot “drags” when he
walks, and he walks with a noticeable limp. Dr. Barrett testified that Williams’s
“foot drop” problem is “progressive.” We conclude that this testimony supports the
jury’s decision to award damages for past and future disfigurement. See USX Corp.
v. Salinas, 818 S.W.2d 473, 489 (Tex. App.—San Antonio 1991, writ denied)
35
(holding that sufficient evidence supports disfigurement award when plaintiff
presented evidence that he “cannot stand straight” and, due to injury, walks “with a
flat-foot stiff gait”).
Diamond Offshore also cites three cases for the proposition that the
disfigurement award in this case was “too high by an order of magnitude,” but, in
each of the three cases Diamond Offshore cited, the appellate court simply
affirmed the damages award. See Allen, 760 S.W.2d at 344 (affirming $50,000
future-disfigurement award); Nw. Mall, Inc. v. Lubri-Ion Int’l, Inc., 681 S.W.2d
797, 804 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.) (affirming
$25,000 past-disfigurement award and $30,000 future-disfigurement award);
Pedernales Elec. Co-op., Inc. v. Schulz, 583 S.W.2d 882, 886 (Tex. Civ. App.—
Waco 1979, writ ref’d n.r.e.) (affirming $4,000 disfigurement award). The fact
that the appellate courts in each of these cases did not find a smaller disfigurement
awards to be excessive does not support the conclusion that the disfigurement
awards in this case—$250,000 in past disfigurement and $325,000 in future
disfigurement—are excessive. Awarding damages for future disfigurement is
“necessarily speculative,” and “there is no mathematical yardstick by which one
can measure damages for it.” Figueroa, 318 S.W.3d at 64. Due to the speculative
nature of a disfigurement damages award, courts generally leave the adequacy of
the amount of the award to the discretion of the jury. See id. at 62. We conclude
36
that the evidence supporting past and future disfigurement is not so weak as to
render the disfigurement awards excessive or manifestly unjust.
B. Future Medical Expenses
Diamond Offshore next contends that the jury’s award of $440,000 for
future medical expenses is excessive because evidence of future medical expenses
that Williams “could or might incur is no evidence of recoverable expenses that he
‘will require in the future.’”
Dr. Barrett, Williams’s treating physician, testified that he does not have any
future surgeries scheduled for Williams, and Williams testified that he is “really
not wanting to have any more surgery” because none of his doctors can promise
him that another surgery will help him. However, Dr. Rodriguez testified that
Williams was a candidate for further surgery to remove the screws and rods in his
back, and Dr. Cenac, Diamond Offshore’s medical expert, testified that this
hardware-removal surgery “would be appropriate.” Dr. Rodriguez testified that
medical bills for this surgery could range from $80,000 to $100,000. Williams
testified that he saw his doctor three weeks before trial and that his doctor wanted
to perform exploratory surgery on his back, although he had not committed to
having any additional surgeries. Dr. Rodriguez also testified that Williams will
need daily pain medication and physical therapy for the rest of his life, and he
estimated that costs for this care would range from $5,000 to $10,000 per year.
37
The jury thus had evidence before it that, even though Williams’s preference
at the time of trial was not to have another surgery, a hardware-removal surgery
was medically indicated and “would be appropriate.” Williams was not required to
establish his future medical expenses with absolute certainty; instead, he needed to
present evidence “that in all reasonable probability, future medical care will be
required and the reasonable cost of that care.” See Machala, 995 S.W.2d at 828.
The jury, in its sound discretion to award damages for future medical expenses,
could have reasonably concluded that, given the degenerative nature of Williams’s
conditions, Williams, “in all reasonable probability” will require pain medication
and physical therapy for the remainder of his life and may elect to undergo further
surgery to alleviate his pain. See id. (holding that award of future medical
expenses “rests within the sound discretion of the jury”). We hold that the jury’s
award of $440,000 in future medical expenses was not excessive.
C. Lost Future Earning Capacity
Diamond Offshore next contends that the jury’s award of $2,254,275 for lost
future earning capacity is excessive because it rests on the assumption that
Williams will never be able to work again, and factually insufficient evidence
supports that assumption.
Dr. Kenneth McCoin, Williams’s economic expert, testified that he arrived
at his calculation of $2,254,475 for Williams’s loss of future earning capacity
38
based on the assumption that Williams will not return to work in the future. Dr.
Barrett testified unequivocally that Williams could not return to his pre-incident
offshore work, a conclusion with which all of the other experts agreed. Dr. Barrett
further testified that, as a result of his chronic pain, Williams likely would not be
able to maintain any type of gainful employment, even sedentary-type work, and
he also stated that he considered Williams to be “totally disabled.” Dr. Rodriguez
testified that Williams might be able to perform “light duty” work, but he also
provided the caveat that this was true only if “the tolerance to [Williams’s pain]
allows him to function through a whole day of work.” Thomas Meunier, a
vocational rehabilitation counselor, testified that even if Williams could secure
employment, he likely would not be able to maintain it given his chronic pain. In
reaching his conclusion, Meunier considered the functional capacity evaluation
that Williams had undergone, which indicated that Williams could perform
“medium” level work, but he ultimately discounted it because it was two years old
and evidence indicated that Williams’s condition had worsened since that
evaluation. Williams himself testified that he tries to do work around his property,
including using his excavator and repairing vehicle, and he can engage in these
activities to an extent, but it hurts him to do so, and he doubted his ability to
perform a full day of work every day. He did not believe that any employer would
39
hire him given his pain levels and the pain medication and muscle relaxers that he
must take.
To support its contention that factually insufficient evidence supported the
assumption that Williams could not return to work, Diamond Offshore focuses on
the functional capacity evaluation, Williams’s testimony that he could still work
but that it hurt him to do so, and Williams’s testimony concerning activities that he
undertakes even after the incident. As stated, however, Williams presented the
testimony of three expert witnesses—two doctors and a vocational rehabilitation
counselor—that Williams would probably not be able to sustain employment at
even a light or sedentary level due to his chronic pain problems. We conclude that
factually sufficient evidence supports the assumption that Williams will not be able
to return to the workforce and thus supports Dr. McCoin’s calculation of
$2,254,475 in loss of future earning capacity damages. See Rigdon Marine Corp.,
270 S.W.3d at 232 (holding that loss of future earning capacity is “always
uncertain” and is “left largely to the jury’s discretion”).
D. Future Pain and Mental Anguish
Diamond Offshore also challenges the jury’s award of $3.4 million in
damages for future pain and mental anguish, focusing primarily on the fact that the
jury was instructed that it could only award damages for the “portion of the
plaintiff’s condition resulted from the aggravation” of a pre-existing condition, and
40
the medical evidence indicated that Williams, at the time of the incident, already
had a “diseased” back.
Diamond Offshore is correct that the record includes evidence that Williams
had injured his back prior to the incident at issue in this case and that the MRI
Williams underwent when he first saw Dr. Barrett after the incident in January
2008 revealed degenerative problems with the discs in his back. However, Dr.
Barrett testified that the January 2008 incident on the Ocean Lexington caused all
of Williams’s current medical problems, including his foot drop and ongoing back
pain, and necessitated both of the surgeries that Williams has needed since the
incident. Specifically, Dr. Barrett testified:
I think all of [Williams’ current medical conditions] are caused by the
injury that [Williams] described to me occurring 10 days or so before
I first saw him. He certainly undeniably had preexisting degenerative
changes but, also, in my opinion, undeniably there was a significant
damage that led to the evaluations which led to the micro discectomy
which led to basically a disruption of his back mechanics which led to
our decision to try to improve those with the fusion. And all of this,
in my opinion, relates back to this [in]jury.
Williams testified that he gets pain injections “all the time,” that his back “hurts
constantly,” and that his foot drop is “progressively getting worse and worse.”
Both Dr. Barrett and Meunier characterized Williams’s pain as “chronic.” Several
of Williams’s friends and family members testified about seeing Williams in pain
after the incident. Multiple witnesses, including Williams’s wife, testified that he
is “depressed” and “miserable” since the incident, that he has experienced a loss of
41
self-worth, and that Williams hardly ever sleeps through the night and instead
sleeps “all day.”
As it did in attacking the disfigurement award, Diamond Offshore compares
the future pain and mental anguish award in this case to the award in other personal
injury cases and argues that “[i]n light of other verdicts,” the award in this case is
“plainly excessive.” Diamond Offshore contends that when an award of future
pain and mental anguish exceeds $1 million, “the injury is usually catastrophic.”
Once again, however, in all of these cases, the appellate courts found the damage
awards to be within the jury’s wide discretion in awarding damages and affirmed
the awards. Diamond Offshore cites no cases in which an appellate court found the
future pain and mental anguish award to be excessive. Simply because an
appellate court affirmed a $1 million future pain and mental anguish award as not
excessive in a “catastrophic” injury case does not mean that the jury’s award in this
case is excessive or falls outside the jury’s wide discretion in awarding damages.
See, e.g., Rentech Steel, L.L.C. v. Teel, 299 S.W.3d 155, 165–67 (Tex. App.—
Eastland 2009, pet. dism’d) (affirming, among other awards, award of $1 million
for future pain and suffering and award of $300,000 for future mental anguish in
case in which sixteen-year-old boy’s hands were “degloved” following accident
with steel roller machine).
42
Here, Williams presented evidence that he is in constant pain, that his
condition, particularly his “foot drop,” is getting worse, that he is likely to be in
pain for the rest of his life, that he suffers from depression and a loss of self worth
following the incident, and that he can no longer engage in the activities he used to
enjoy to the extent and with the frequency that he used to engage in them before
the incident. We conclude that the jury’s award of $3.4 million for future pain and
mental anguish is not excessive. See Figueroa, 318 S.W.3d at 62 (noting that
damages for pain and suffering are “necessarily speculative” and that each case
should be judged on own facts); Tagle, 155 S.W.3d at 518 (stating that pain and
suffering is “not subject to precise mathematical calculations or objective analysis
and is particularly within the province of the jury to resolve and to determine
appropriate amounts”).
E. Future Physical Impairment
Finally, Diamond Offshore challenges the jury’s $1.7 million award for
future physical impairment as excessive.
One of the primary considerations in awarding damages for future physical
impairment is the plaintiff’s loss of enjoyment of life. See Pardue, 186 S.W.3d at
18. Here, Williams explicitly testified:
I am, in fact, hurt real bad. I hurt on a daily [basis]. . . . I know I feel
terrible. Just doing the little things I do hurts me. I can’t enjoy life
like I used to. I mean, I was always active. I’ve had motorcycles and
race cars and boats and jet skis. I was [into] everything. You know, a
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lot of that is—I still—still do those things—or some of those things
but not—not at the extent I used to.
Williams testified that he tries to keep up with his favorite activities, such as
working with his excavator, repairing vehicles, hunting, being outdoors with his
daughter, and going to his daughter’s softball games, but that it causes him pain to
engage in these activities and that he can no longer do these activities like he used
to do. Several of his friends and family members testified and related specific
examples, and they also testified concerning the changes in Williams’s personality
as a result of being unable to participate in and enjoy life the way he used to do.
Williams also presented medical testimony that his condition is likely to get
progressively worse as he ages, further limiting his ability to be active.
Testimony at trial indicated that Williams, who was forty-four at the time of
trial, was expected to live another thirty-four to thirty-five years. Diamond
Offshore has again cited case law in which plaintiffs with “debilitating injuries”
did not receive as high an award for future physical impairment as Williams did,
but, again, these cases do not support the proposition that the jury’s award in this
case was excessive. We conclude that, in this case in which there is clear evidence
that Williams cannot live his life the way that he used to, the jury’s award of $1.7
in damages for future physical impairment is not excessive.
We overrule Diamond Offshore’s third issue.
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Conclusion
We affirm the judgment of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
Justice Keyes, dissenting.
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