Opinion Issued March 10, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-01003-CV
JULIO MORA, Appellant
V.
HEMCO INDUSTRIES, INC., Appellee
On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Cause No. 1999-32567
MEMORANDUM OPINIONThis is an appeal from a motion for directed verdict rendered in favor of appellee, Hemco Industries, Inc. (“Hemco”) during a bench trial. Appellant, Julio Mora, filed a negligence action for the injuries he sustained during his employment as a welder with Hemco. On appeal, the issues are (1) whether appellant presented fact issues on medical causation sufficient to overturn the trial court’s judgment; (2) whether Hemco judicially admitted that appellant’s herniated disc was caused by lifting a piece of heavy equipment while at work; and (3) whether the trial court erred in denying appellant’s motion to re-open for additional evidence. We affirm.
BACKGROUND
Hemco, a Texas corporation that manufactures access platforms (gangways) that transport people who are loading and unloading materials to the top of tank and hopper railroad cars and tank trucks, hired Julio Mora in December 1980. On June 30, 1997, Mora was injured while manually lifting the “jig” to place it on a hydraulic press machine at the Hemco facility. As he lifted the jig, Mora heard his spinal column make a noise. Mora reported the injury to his supervisor, but, believing that the injury was not serious, he continued working that day. That evening Mora’s pain became severe. Mora saw a doctor, Dr. Sadeghpour, for the first time nine days after lifting the jig at Hemco. Hemco’s owner referred Mora to Dr. Sadeghpour. Mora had suffered a lower back injury and was later diagnosed with a herniated disc at L5-S1. Hemco, pursuant to its company policy, paid for most of Mora’s medical expenses. Mora testified that he never injured his back prior to June 30, 1997. After his treatment and back surgery, Mora sued Hemco for negligence. Hemco is a non-subscriber of Texas workers’ compensation insurance.
A bench trial began on March 31, 2003. After Mora rested, Hemco orally moved for a “directed verdict” contending that Mora failed to prove medical causation with regard to his lumbar disc herniation. We construe this as a motion for judgment rather than a directed verdict because this is a bench trial. See Qantel Bus. Sys., Inc. v. Custom Controls Co., 761 S.W.2d 302, 303 (Tex. 1988); Ashcreek Homeowner’s Ass’n, Inc. v. Smith, 902 S.W.2d 586, 587 (Tex. App.—Houston [1st Dist.] 1995, no writ). Directed by the trial judge to provide evidence of medical causation, Mora responded by providing references in the record to Hemco’s alleged judicial admissions on the issue of medical causation. The trial court granted Hemco’s motion for judgment. The court stated
What I’m saying is there’s no medical testimony to link up the act of lifting to the herniation and the only testimony I heard about his back injury wasn’t he had a strain or sprain, he had a herniation. And if the factual medical theory is herniation you have to medically connect the act you’re complaining of which is the lifting and the herniation, and there was nothing to connect the two.
On April 10, 2003, before entry of judgment, Mora filed a motion to re-open for additional evidence. The trial court denied Mora’s motion and granted judgment for Hemco on June 11, 2003. Mora filed a motion for new trial, but the motion was overruled by operation of law. This appeal followed.
Mora appeals from the grant of a motion for judgment in favor of Hemco on three grounds. First, appellant contends that he presented medical causation evidence sufficient to overturn the trial court’s judgment. Second, appellant contends that Hemco judicially admitted that appellant suffered a herniated disc while lifting the jig, thus relieving appellant of the burden of proving the admitted fact and barring Hemco from disputing it. Finally, appellant contends that the trial court erred in denying his motion to re-open to present additional evidence.
DISCUSSIONMotion for Judgment
In his first issue, appellant argues the court erred in granting Hemco’s motion for judgment because appellant presented sufficient medical testimony to prove that he suffered a herniated disc as a result of the injury he sustained while working at Hemco. In response, Hemco argues that the trial court properly granted the motion because appellant failed to present any evidence of medical causation between the alleged negligence of Hemco and appellant’s herniated disc. Specifically, Hemco contends that (1) none of the admitted medical records or testimony of appellant’s two doctors contained any evidence of medical causation; (2) neither appellant’s testimony nor that of his coworkers was competent evidence of medical causation; and (3) testimony that Hemco paid part of appellant’s medical bills is not competent evidence of medical causation.
As the arbiter of factual and legal issues, the judge in a nonjury trial has the authority to rule on both the legal and factual sufficiency of the plaintiff’s evidence on the defendant’s motion for judgment after hearing only the plaintiff’s evidence. Qantel Bus. Sys., Inc., 761 S.W.2d at 304. On appeal, the legal and factual sufficiency of the evidence to support the judgment can be challenged as in any other nonjury case. Ashcreek Homeowner’s Ass’n., Inc., 902 S.W.2d at 587. When we review legal sufficiency, we review the evidence in a light that tends to support the finding of the disputed facts and disregard all evidence and inferences to the contrary. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). When we review factual sufficiency, we conduct a neutral review of all the evidence. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We will reverse for factual insufficiency only if the ruling is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. Minucci v. Sogevalor, S.A., 14 S.W.3d 790, 794 (Tex. App.—Houston [1st Dist.] 2000, no pet.).
In a negligence case, the negligent act must be the proximate cause of the injury. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995). To establish causation in a personal injury case, a plaintiff must prove the defendant’s conduct caused an event and that event caused the plaintiff to suffer compensable damages. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). A fact finder may decide the required causal nexus between the event sued upon and the plaintiff’s injuries when (1) general experience and common sense will enable a layperson fairly to determine the causal nexus; (2) expert testimony establishes a traceable chain of causation from injuries back to the event; or (3) expert testimony shows a probable causal nexus. Weidner v. Sanchez, 14 S.W.3d 353, 370 (Tex. App.—Houston [14th Dist.] 2000, no pet.); Turnbull v. McIntosh, No. 01-98-01127-CV, 2001 WL 493169, * at 4 (Tex. App.—Houston [1st Dist.] May 10, 2001, pet. denied) (not designated for publication).
To constitute evidence of causation, an expert opinion must rest on reasonable medical probability. Crye, 907 S.W.2d at 500. According to the Texas Supreme Court, “[r]easonable probability is determined by the substance and context of the opinion, and does not turn on semantics or on the use of a particular term or phrase.” Id. (citations omitted). The opinion may be expressed in testimony or in a medical record. Id. While expert testimony concerning the possible causes of the condition in question is admissible to assist the trier of fact in evaluating other evidence in the case, a possible cause only becomes probable when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. Parker v. Employer Mut. Liab. Ins. Co., 440 S.W.2d 43, 47 (Tex. 1969). It is “not absolutely necessary” for the expert to couch his opinion in terms of “reasonable medical probability.” Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988).
The Texas Supreme Court also recognized that lay testimony is sufficient to prove causation in those cases in which general experience and common sense will enable a lay person to determine, with reasonable probability, the causal relationship between the event and the condition. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984) (although plaintiff offered no expert medical testimony, lay testimony presented sufficiently established causation between plaintiff’s exposure to fumes emanating from a typesetting machine and her injuries, which included skin irritation and problems with her circulatory, digestive, and nervous systems); Lenger v. Physician’s Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex. 1970). Lay testimony that establishes a sequence of events providing a “strong, logically traceable connection between the event and the condition is sufficient proof of causation.” Morgan, 675 S.W.2d at 733; see also Griffin v. Tex. Employers’ Ins. Ass’n, 450 S.W.2d 59, 61 (Tex. 1969) (“If proof only shows that one event followed another with a long period of time in between, it is at least as reasonable to conclude that the events are coincidentally related as causally related.”).
In a case where there is no medical testimony as to the cause of an injury, the evidence will be sufficient to prove causation if it is such that a lay jury could determine from common experience, with reasonable probability, that the damages arose from the acts of the defendant. See Lenger, 455 S.W.2d at 706.
Appellant’s reliance on Blankenship v. Mirick is misplaced. 984 S.W.2d 771 (Tex. App.—Waco 1999, pet. denied). In Blankenship, the court found the evidence legally and factually sufficient to prove causation in a case involving an automobile collision. Id. at 773, 775-76. The plaintiff suffered dislocated kneecaps, which she alleged were caused by the collision with another vehicle. Id. at 776. Her treating physician could not state in reasonable medical probability whether the plaintiff’s injury was an aggravation of a pre-existing condition or was caused by the trauma of the automobile collision. Id. However, the court noted that the “context of [her physician’s] testimony reveals his firm belief that [the plaintiff’s] kneecaps were not dislocated immediately following the collision.” Id. at 777. The court, considering the plaintiff’s and her physician’s testimony, found the testimony legally sufficient because her lay testimony established “a sequence of events which provides a strong, logically traceable connection between the [collision] and [her] condition.” Id. at 776 (quoting Morgan, 675 S.W.2d at 733). The court concluded that the combination of her doctor’s medical testimony, which had narrowed down the causes of her injury to two possibilities, and her lay testimony were sufficient to prove causation.
Appellant claims this case does not require expert testimony because, like in Blankenship, lay testimony and medical records will suffice to prove causation. Appellant relies on his own testimony as well as that of his daughter, Carmen; his supervisor at Hemco, Mr. Ibarra; his treating physician, Dr. Sadeghpour; his neurosurgeon, Dr. Anchondo; his former co-worker at Hemco, Mr. Cruz; and Hemco’s supervisor, Mr. Celedon. These witnesses, along with the medical records, demonstrated that a chain of events occurred temporally beginning with the on-the-job lifting of the jig at the Hemco facility and culminating in the diagnostic study revealing appellant’s herniated disc injury. The medical records indicate appellant suffered a back injury prior to his July 9, 1997 visit to Dr. Sadeghpour, the doctor proscribed medication and a course of therapy to appellant with instructions to return for a follow-up, the initial treatment did not relieve appellant’s pain or symptoms, an MRI of the lumbar spine revealed a disc herniation at the L5-S1 level, Dr. Anchondo’s physical examination confirmed the severity of appellant’s back injury, appellant required surgery that was performed on January 13, 1998, and Dr. Sadeghpour performed post-surgical therapy on appellant. Hemco argues that appellant’s evidence, demonstrating a string of events on a timeline, leads merely to speculation as to the cause of appellant’s injury.
Here, no expert ever testified that the accident caused appellant’s herniation. Neither appellant’s treating physician, Dr. Sadeghpour, nor his neurosurgeon, Dr. Anchondo, testified that, in his opinion, appellant’s lifting the equipment at Hemco caused appellant’s herniated disc. Without expert testimony establishing a causal link between appellant’s accident at work and his herniation, the trial judge, as fact finder in a bench trial, could determine that appellant failed to prove, by a preponderance of the evidence, that appellant’s disc herniation was caused by lifting the jig while working for Hemco. See Lewis v. Randall’s Food & Drug, No. 14-03-00626-CV, 2004 WL 1834290, at * 4-5 (Tex. App.—Houston [14th Dist.] Aug. 17, 2004, no pet.) (not designated for publication). In a bench trial, the trial court is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Qantel Bus. Sys., Inc., 761 S.W.2d at 304. Given the lack of expert testimony, the trial court’s finding is not so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. The evidence was factually sufficient to support the trial court’s ruling and, because appellant failed to establish causation as a matter of law, we find the trial court did not err in granting Hemco’s motion for judgment.
Accordingly, we overrule appellant’s first point of error.
Judicial Admissions
In his second point of error, appellant contends that statements in Hemco’s Second Amended Answer and its Motion for Summary Judgment constitute binding admissions of medical causation. Appellant argues that because Hemco judicially admitted that appellant’s lifting the jig at Hemco caused his disc herniation, appellant is relieved from the burden of proving medical causation and Hemco is barred from disputing causation at trial. First, appellant claims the following statement in Hemco’s Second Amended Answer is a judicial admission:
Defendant further pleads that it is entitled to an offset of any judgment of the Plaintiff, as a non-subscriber of Texas Workers Compensation, for all amounts paid by Defendant and/or on its behalf, for medical benefits and wage benefits.
Second, appellant claims the following statements from Hemco’s Motion for Summary Judgment are also judicial admissions on the medical causation element: (1) that appellant “was hurt on the job while picking up a part of a piece of equipment called a ‘jig’” and (2) that appellant “ruptured a disc in his back and was off work for a period of time. All his medical bills were paid by the defendant. While the plaintiff was off work, the defendant paid him his full salary.” In addition, appellant argues that the testimony of both Hemco’s owner and its shop superintendent at trial are consistent with the alleged judicial admissions Hemco made in its pleadings.
A judicial admission must be a clear, deliberate, and unequivocal statement, and occurs when an assertion of fact is conclusively established in live pleadings, making the introduction of other pleadings or evidence unnecessary. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000). A judicial admission bars a party from disputing a fact and relieves his adversary from having to present proof of the fact. Id. To establish a judicial admission, a party must also prove the statement is contrary to an essential fact of the defense. Sepulveda v. Krishnan, 839 S.W.2d 132, 135 (Tex. App.—Corpus Christi, 1992), aff’d, 916 S.W.2d 478 (Tex. 1995).
Appellant’s argument is without merit for two reasons. First, the mere fact that Hemco followed its company policy to voluntarily pay the medical bills of its workers who claimed on-the-job injuries is not an admission that the medical condition that generated those bills was in fact caused by an on-the-job injury. Second, the recitation of facts by Hemco in its pleadings that (1) appellant was injured at work while lifting the jig and (2) appellant subsequently received medical treatment for a herniated disc is not a clear, deliberate, or unequivocal admission that these two events are in any way linked or that the former caused the latter. The statements cited by appellant merely contain a description of facts, but do not relieve appellant of the burden of proving causation between the statements.
Accordingly, we overrule appellant’s second point of error.
Motion to Re-Open
In his third point of error, appellant contends that the trial court erred in denying appellant’s Motion to Re-Open for Additional Evidence. Appellant argues
that the trial court abused its discretion in refusing to permit his counsel to introduce into evidence affidavits from both Dr. Sadeghpour and Dr. Anchondo stating, in the professional opinion of each doctor, based on reasonable medical probability, that appellant’s disc herniation directly resulted from the on-the-job injury he suffered while lifting a heavy piece of equipment. Appellant claims the trial court should have admitted these affidavits into evidence because the proposed evidence was decisive, appellant was diligent in producing evidence before closing, receipt of this additional evidence would not have caused undue delay, and receipt of the evidence would not have caused an injustice to Hemco.
A trial court may permit a party to offer other additional evidence when it “clearly appears to be necessary to the due administration of justice.” Tex. R. Civ. P. 270. In determining whether to grant a motion to reopen, the trial court should consider whether (1) the moving party showed due diligence in obtaining the evidence; (2) the proffered evidence is decisive; (3) reception of such evidence will cause undue delay; and (4) granting the motion will cause an injustice. Lopez v. Lopez, 55 S.W.3d 194, 201 (Tex. App.—Corpus Christi 2001, no pet.); Three “C” Project No. 47129 Ltd. P’ship v. Beard, No. 01-94-00350-CV, 1994 WL 543474, at * 3 (Tex. App.—Houston [1st Dist.] Oct. 06, 1994, no writ) (not designated for publication); see In re H.W., 85 S.W.3d 348, 357-58 (Tex. App.—Tyler 2002, no pet.).
We review a trial court’s decision to deny a party’s motion to offer additional evidence for abuse of discretion. In re Hawk, 5 S.W.3d 874, 876-77 (Tex. App.—Houston [14th Dist.] 1999, no pet.); Turner v. Lone Star Indus., Inc., 733 S.W.2d 242, 245 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.). However, a trial court does not abuse its discretion by refusing to reopen a case after evidence is closed if the party seeking to reopen has not shown diligence in attempting to produce the evidence in a timely fashion. Lopez, 55 S.W.3d at 201 (court did not abuse its discretion because movant did not show due diligence in obtaining the evidence); Estrello v. Elboar, 965 S.W.2d 754, 759 (Tex. App.—Fort Worth 1998, no pet.) (movant “did not show diligence in attempting to produce the evidence in a timely fashion and the interests of justice do not warrant a second bite at the apple.”). The trial court abuses its discretion if it acted without reference to any guiding rules and principles. Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004). The fact that a trial judge may decide a matter within his or her discretion in a different manner than an appellate judge in a similar circumstance does not demonstrate the trial judge abused his or her discretion. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985).
Appellant argues that he acted with due diligence when he “produced the testimony of his treating physicians, all the medical records associated with his treatment, and fact witness testimony to support his contentions.” Additionally, appellant argues he acted with due diligence when he relied on his belief that Hemco judicially admitted the medical causation issue.
The facts here show a lack of due diligence. Appellant filed suit on July 22, 1999, but the case did not go to trial until April 2003, nearly four years after appellant filed. On July 24, 2002, Hemco took the deposition of Dr. Sadeghpour. At that time, appellant had the opportunity to ask his treating physician what, in his opinion, caused appellant’s herniated disc, but appellant failed to do so. On November 5, 2002, Hemco took the deposition of Dr. Anchondo, but appellant again failed to ask this doctor what he believed was the cause of appellant’s herniated disc. Only after the trial court granted a motion for judgment for Hemco did appellant seek to reopen evidence to admit the affidavits of Dr. Sadeghpour and Dr. Anchondo. Until the grant of the directed verdict, appellant made no effort to locate any evidence to support this essential element of his cause of action. Because appellant did not show he used due diligence in obtaining this evidence, we hold the trial court did not abuse its discretion in denying appellant’s motion to reopen for additional evidence. Accordingly, we overrule appellant’s third point of error.
CONCLUSION
We affirm the judgment of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Bland.