Affirmed and Memorandum Opinion filed January 12, 2012.
In The
Fourteenth Court of Appeals
___________________
NO. 14-10-01237-CV
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KEVA TOLER LABETH AND MICHAEL LABETH, Appellants
V.
PASADENA BAYSHORE HOSPITAL, INC. D/B/A BAYSHORE MEDICAL
CENTER, Appellee
On Appeal from the 122nd Judicial District Court
Galveston County, Texas
Trial Court Cause No. 06-CV-0942
MEMORANDUM OPINION
Appellants Keva Toler LaBeth and Michael LaBeth appeal a take-nothing judgment
in their suit against appellee Pasadena Bayshore Hospital, Inc. d/b/a Bayshore Medical
Center. In three issues, they contend that (1) the jury arrived at a verdict in a unlawful
manner, as evidenced by its unreasonably rapid deliberation; (2) the trial court erred by
admitting evidence not properly disclosed during discovery; and (3) the trial court erred by
allowing defense counsel to engage in unrestrained, improper jury argument. We affirm.
BACKGROUND
In September 2004, while working for the Hospital as a registered nurse, Keva
suffered an on-the-job injury as she cared for a patient in critical condition. The patient was
a quadriplegic resting on a specialized airbed. He had multiple IVs and a ventilator
attached directly to his breathing canal. Keva was called to assist another nurse in cleaning
and bandaging the patient. Once they rolled the patient on his side, the other nurse released
him without warning and stepped away, requiring Keva to stabilize all of the patient’s
weight by herself. As she moved to support the patient and protect the tube entering his
airway, Keva felt a large pop and experienced a sudden pain in her lower back.
Keva reported her injury to a supervisor, and the Hospital later referred her to an
employee health doctor within its network. An MRI revealed that she had a herniated disk
with inflammation. She was treated with medicine, physical therapy, and a series of
epidural steroid injections. When her condition did not improve, Keva consulted with a
neurosurgeon, who proposed a surgical fusion of the spine. With this procedure, the
surgeon planned to separate Keva’s spine, then take fragments of bone harvested from her
hip and transplant them to her vertebrae. When the vertebrae healed, they would cause her
spine to fuse back together, thereby eliminating her pain.
Although the procedure went smoothly, as Keva recovered, she detected a clear
liquid leaking from her surgical incisions. Doctors found that a sharp bone fragment was
puncturing the spinal canal, causing a release of cerebral spinal fluid. The condition
required immediate treatment, including emergency surgery and a heavy dosage of
antibiotics.
Keva recovered in the ICU for three weeks and at home for another three months.
She testified that she felt well for a long time, but that her lumbar pain eventually returned.
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Her leg often went numb, and she experienced shooting pains in her hip. Surgeons
determined that little more could be done. Keva was prescribed pain medications and
released back to work with a number of limitations. Among other medical instructions,
Keva was told that she should not lift any weights heavier than twenty pounds or perform
any task requiring repetitive bending or stooping. For all practical purposes, the physical
restrictions prevented her from resuming her job as a nurse, and Keva was required to
search for employment elsewhere.
In their live pleading, the LaBeths asserted various negligence causes of action
against the Hospital. They claimed, for instance, that the Hospital was negligent in failing
to provide adequate assistance for patient care. They alleged that the Hospital cut personnel
for cost reasons, without regard to the needs of patients and the safety of employees. They
also alleged that the airbed used by the quadriplegic required special training, which the
Hospital failed to provide. Keva alleged that the Hospital’s negligence in these matters
proximately caused her injuries. Keva’s husband, Michael, sought additional damages for
loss of household services and loss of consortium.
The Hospital generally denied the allegations of negligence. In its answer, the
Hospital also specifically pleaded ten additional defenses. Among its defensive theories,
the Hospital alleged that (1) Keva was contributorily negligent, or her injuries were the
result of an unavoidable and unforeseeable accident; (2) the LaBeths failed to mitigate
their damages; (3) Keva’s injuries were proximately caused by a new and independent
cause; and (4) Keva’s injuries were the result of a preexisting condition.
In a pretrial hearing, the LaBeths submitted a motion in limine requesting an order
that the Hospital refrain from referencing any matter not properly disclosed during
discovery. The LaBeths argued that the Hospital failed to respond to requests for
disclosure, specifically regarding the legal theories and factual bases of the Hospital’s
pleaded defenses. The trial court took the issue under advisement, without making a ruling
on the motion.
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During trial, Keva testified about many of the points raised in the Hospital’s
defenses. On cross-examination, she specifically admitted the following:
She decided to treat the quadriplegic with the assistance of one nurse instead
of two, even though she believed that doing so was unsafe to herself and to
the patient;
The other nurse’s release of the quadriplegic was unexpected;
She waited seven days before seeking treatment for her injury, and when she
finally saw her physician, she told him that she has endured ―chronic back
pain all the time due to the work I do‖;
The MRI performed after her injury revealed a preexisting deterioration of
the bones in her spine;
Three months before the incident, she was prescribed pain medication for
degenerative joint disease in her lower back;
She missed four consecutive days of work before the incident because of
back pain resulting from a motorcycle trip to Canada;
Prior to the incident, she visited the emergency room and was prescribed
pain medications after injuring her back while gardening;
Her own medical expert agreed she had severe preexisting degenerative
problems with her lower back; and
She had been taking methadone and Vicodin every day for pain, even though
a drug test taken six weeks before trial revealed neither drug in her system.
This testimony was admitted without objection. At the end of the second day of trial,
following this testimony from Keva, the LaBeths’ attorney reasserted his argument made at
the pretrial hearing, objecting that this evidence was ―not properly subjected to disclosure.‖
The trial court ruled that ―[t]hose objections have been registered since Monday when we
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had our pretrial issues and they have continued throughout the trial.‖ The trial court then
granted the LaBeths a ―running objection to all those types of exhibits, argument,
cross-examination and evidence.‖
During closing argument, counsel for the Hospital suggested that Keva was not a
credible witness. Counsel referenced moments in the record where Keva’s own attorney
referred to her as a ―faker, a liar, [and] a drug dealer,‖ among other terms. Defense counsel
also commented on how Keva’s attorney would regularly interrupt Keva on both direct and
cross-examination to guide her testimony in a direction most favorable to her case. Defense
counsel finally suggested that if Keva’s case were truly worth the millions of dollars she
sought in damages, then the jury must be prepared to explain its decision to the press
should it find the Hospital liable. The LaBeths objected only to this last statement, stating
that it was ―awfully farfetched‖ and ―asking the jury to consider those things that are not a
part of their job here.‖ The trial court did not overrule the objection or otherwise issue an
adverse ruling, but it did remind the jury that it could consider only the evidence introduced
through testimony and exhibits.
The jury returned a verdict in favor of the Hospital without having ever reviewed
the trial exhibits during deliberation. On appeal, the LaBeths challenge the manner of the
jury’s deliberation, the admissibility of evidence concerning nondisclosed defensive
theories, and the propriety of the Hospital’s closing argument.
JURY DELIBERATION
In their first issue, the LaBeths argue that the trial court erred by accepting the jury’s
verdict. They contend that the jury did not follow the trial court’s admonitions and
instructions, as evidenced by its deliberation of less than five minutes and its failure to
request any of the exhibits produced at trial. These allegations of jury misconduct were
raised in the LaBeths’ motion for new trial, which the trial court denied.
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As a reviewing court, we are ordinarily bound by the trial court’s determination
regarding allegations of jury misconduct, and we will only reverse such determinations
upon a clear showing of an abuse of discretion. Pharo v. Chambers Cnty., 922 S.W.2d 945,
948 (Tex. 1996).
The record here, as shown by the trial court’s own handwritten notes, indicates that
the jury deliberated for thirty-three minutes, not five. We are aware of no authority stating
that this amount of time would be inadequate to consider the types of negligence issues
raised in this case. The LaBeths have also failed to supply us with any authority indicating
that a jury’s failure to examine trial exhibits during deliberation establishes jury
misconduct.
The jury observed all of the witnesses and heard all of the evidence produced at
trial. The LaBeths give us no reason to question the trial court’s judgment that the jury
arrived at its verdict in a lawful manner. The LaBeths’ first issue is overruled.
EVIDENCE OF NONDISCLOSED DEFENSIVE THEORIES
In their second issue, the LaBeths argue that the Hospital was required to disclose
the legal and factual bases for its defense. The LaBeths contend that because the Hospital
did not fully disclose all of the bases for the defensive theories asserted in its answer, the
trial court erred by admitting evidence regarding those theories at trial.
The admission or exclusion of evidence rests within the sound discretion of the trial
court. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). This court will
reverse on an evidentiary ruling only if the trial court abused its discretion and the
erroneous ruling probably caused the rendition of an improper judgment. Chappell Hill
Bank v. Smith, 257 S.W.3d 320, 324 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
We first address what error, if any, has been preserved for appellate review. Before
a party may present a complaint on appeal, the record must normally show that the
complaint was made to the trial court by a timely request, objection, or motion. Tex. R.
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App. P. 33.1. The LaBeths never obtained a ruling on their motion in limine, where they
first raised the issue of the Hospital’s failure to disclose. The LaBeths objected once
towards the beginning of Keva’s cross-examination, arguing that the Hospital’s failure to
disclose barred it from introducing a particular set of records from Keva’s post-surgical
visit to the emergency room. That objection was overruled. The LaBeths raised the issue of
nondisclosure once again at the conclusion of Keva’s testimony, when counsel asserted on
the record his ―ongoing carried objection.‖ This objection, which the trial court
acknowledged as a ―running objection,‖ was not made in response to any specific part of
Keva’s testimony.
In their briefing, the LaBeths generally complain of evidence not properly
disclosed. They contend that the Hospital gave no notice regarding the basis for its
defensive theories, and that they were accordingly ―ambushed‖ at trial when the Hospital
was permitted to introduce evidence supporting these theories. In this sweeping argument,
the LaBeths do not specifically identify what testimony was objectionable at trial or what
evidence should have been excluded. Their briefs complain of many statements made in
the pretrial hearing, but that was not evidence considered by the jury. In blanket terms, the
briefs also complain of evidence at trial supporting the Hospital’s theory that Keva’s injury
was the result of a preexisting condition. However, the record citations for this evidence
are not followed by any timely or specific objections. By the time an objection was finally
registered on the record, the jury had already heard significant testimony pertaining to the
Hospital’s asserted defenses: Keva, for instance, had testified that the handling of the
quadriplegic was ―unexpected,‖ that she had undergone several procedures and surgeries
following her injury, and that she had already been diagnosed with a preexisting
degenerative condition. To the extent this evidence relates to the LaBeths’ complaint of
nondisclosure, any error was waived. See Clark v. Trailways, Inc., 774 S.W.2d 644, 647
(Tex. 1989) (holding that error is waived when party fails to object to offer of testimony
from nondisclosed witness); Sec. Ins. Co. v. Nasser, 755 S.W.2d 186, 194 (Tex.
App.—Houston [14th Dist.] 1988, no writ) (same); see also Atl. Richfield Co. v. Misty
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Prods., Inc., 820 S.W.2d 414, 421 (Tex. App.—Houston [14th Dist.] 1991, writ denied)
(―To preserve complaint on appeal regarding a trial court’s ruling on the admissibility of
evidence, a party must make a timely objection and obtain a ruling before the testimony is
offered and received. The party waives any complaint if an objection is made after
admission of the evidence, or if testimony to the same effect has been previously admitted
without objection.‖ (citations omitted)).
Assuming any error was preserved, we now address the LaBeths’ argument that the
Hospital was required to disclose the legal and factual bases for its defensive theories.
A party may request during discovery ―the legal theories and, in general, the factual
bases of the responding party’s claims or defenses.‖ Tex. R. Civ. P. 194.2(c). If a party fails
to make a timely discovery response, the evidence not timely disclosed may be excluded at
trial unless the court finds that the failure to respond did not unfairly surprise or unfairly
prejudice the other party. Tex. R. Civ. P. 193.6(a). The rules make clear, however, that
when answering a request for disclosure, ―the responding party need not marshal all
evidence that may be offered at trial.‖ Tex. R. Civ. P. 194.2(c). This rule is intended to
require disclosure of a party’s ―basic assertions,‖ not necessarily all aspects of the party’s
claims or defenses. Tex. R. Civ. P. 194 cmt. 2; see Nat’l Family Care Life Ins. Co. v.
Fletcher, 57 S.W.3d 662, 669 (Tex. App.—Beaumont 2001, pet. denied) (observing that
the purpose of a request for disclosure is ―to obtain early disclosure of basic information,‖
not to present all of the party’s evidence in support of its defense).
Pursuant to Rule 194.2(c), the LaBeths requested disclosure of all legal theories and
factual bases for the Hospital’s defense. Referring back to its original answer, the Hospital
responded by indicating that it was generally denying the LaBeths’ allegations. Assuming,
without deciding, that this disclosure response was inadequate, we cannot conclude that the
trial court abused its discretion by admitting evidence of the Hospital’s defensive theories.
The Hospital specifically pleaded ten defenses in its answer, in addition to its general
denial. Although not pleaded with great detail, these defensive theories were fully
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developed through extensive deposition testimony several months in advance of trial. See
Tex. R. Civ. P. 193.5 (stating that parties have a duty to supplement their discovery
responses unless additional information has already been made known ―in writing, on the
record at a deposition, or through other discovery responses‖). Nurses were deposed on
matters concerning the sufficiency of the Hospital’s staffing. Doctors were deposed on the
issues of Keva’s preexisting conditions and her alcohol and prescription drug use. Keva
herself was deposed, testifying about matters such as her previous back injuries and her
judgment on the day of the incident. Even if the formal disclosures were lacking, by the end
of discovery, the LaBeths were fully attuned to the finer aspects of the Hospital’s defensive
theories. See Miller v. Kennedy & Minshew, Prof’l Corp., 142 S.W.3d 325, 348–49 (Tex.
App.—Fort Worth 2003, pet. denied) (holding that trial court did not abuse its discretion by
admitting evidence, despite improper disclosure, because party knew the substance of the
evidence for over a year before trial).
The record does not support the LaBeths’ argument that they were ambushed or
unfairly surprised in any way. Their second issue is overruled.
JURY ARGUMENT
In their third issue, the LaBeths argue that the Hospital’s closing argument was
unrestrained, improper, and incurably harmful. They complain of five particular examples,
which they have neatly grouped into the following four categories: (1) improper personal
criticism; (2) improper intimidation; (3) improper accusation of witness manipulation; and
(4) improper personal opinion of the dollar value of the case.
Complaints of improper jury argument must ordinarily be preserved by a timely
objection that is overruled and by a request that the jury disregard the improper remark.
Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009); Living Ctrs. of Tex., Inc., v.
Penalver, 256 S.W.3d 678, 680 (Tex. 2008). The LaBeths objected only once during the
Hospital’s closing argument, but they neither obtained an adverse ruling, nor requested an
instruction to disregard. In these circumstances, a party waives any complaint that a closing
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argument was improper and curable. Tex. Employers’ Ins. Ass’n v. Haywood, 266 S.W.2d
856, 858 (Tex. 1954). In limited situations, however, an argument may be so prejudicial
that it is incurable by instruction, and a complaint may be had on appeal even if an
objection was not timely made. See Tex. R. Civ. P. 324(b)(5); Clark v. Bres, 217 S.W.3d
501, 509 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).
Incurable jury argument is rare, existing only where the argument ―was reasonably
calculated to cause such prejudice to the opposing litigant that a withdrawal by counsel or
an instruction by the court, or both, could not eliminate the probability that it resulted in an
improper verdict.‖ Haywood, 266 S.W.2d at 858; Jones v. Republic Waste Servs. of Tex.,
Ltd., 236 S.W.3d 390, 402 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). To prove
that an argument was incurable, a complaining party must demonstrate that (1) an
improper argument was made; (2) the argument was neither invited nor provoked; (3) the
argument was not curable by instruction, a prompt withdrawal of the statement, or a
reprimand by the trial court; and (4) by its very nature, degree, and extent, the argument
constituted harmful error based on an examination of the entire record and its probable
effect on a material finding. Clark, 217 S.W.3d at 509; see Standard Fire Ins. Co. v. Reese,
584 S.W.2d 835, 839–40 (Tex. 1979). Stated another way, the offensive argument must be
so extreme that a juror of ordinary intelligence could have agreed to a verdict contrary to
what he would have decided but for such argument. Zurita v. Lombana, 322 S.W.3d 463,
482 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). In deciding whether an improper
argument is incurable, we may also consider as proper inquiries how long the argument
continued, whether it was repeated or abandoned, and whether there was cumulative error.
Clark Equip. Co. v. Pitner, 923 S.W.2d 117, 125 (Tex. App.—Houston [14th Dist.] 1996,
writ denied).
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Improper Personal Criticism
The LaBeths first challenge defense counsel’s argument regarding Keva’s
credibility. In his closing statement, defense counsel made the following remarks about
Keva’s testimony and her attorney’s reaction to her treatment on cross-examination:
Now, by the way, I’ve tried and I believe I’ve succeeded to be kind
and professional and not accusatory and not use names or say anything that
was ugly to or about Ms. LaBeth. I can only bring you the facts. . . .
But as you notice, each time I point out an [inconsistency] just on the
facts – I just give you the facts – you get this fairly hysterical reaction where
– these are the ways that [counsel for the LaBeths] has referred to his own
client: She’s faker, a liar, a drug dealer. He called her a drug pusher, a cheat,
a con man, a thief, a drunk, a sociopath, a psychopath, manipulative, sneaky,
mentally sick. I never said any of that. I never said any of that. That’s not
what I’m here to tell you now. What happens sometimes, though, is if you
catch a person a little off base and you ask them about the facts and you say
that’s funny, you told me this but now I’m learning it’s a little different and
the person goes, ―Are you calling me a liar?‖
Okay. It’s a way to sort of escalate to make it seem like you’re doing
the bad thing because you’re pointing out their lack of credibility and so
you’re a name caller now. No, I’m just bringing you the facts. You guys can
go back there and discuss it and put labels on it, whatever. I’ll call it
credibility. All right. But it’s interesting the hysterical reaction that you get.
The LaBeths argue that these statements were intended to paint Keva ―as being held in
contempt by her own counsel, driving a wedge between the lawyer and his client.‖
It is well-established that counsel should refrain from using pejorative terms and
inflammatory epithets. See Sw. Greyhound Lines v. Dickson, 236 S.W.2d 115, 118–20
(Tex. 1951); Zurita, 322 S.W.3d at 482. In the same way, counsel has always been entitled
to argue the facts of the case, including the reasonableness of the evidence and any
inferences made from the evidence. Zurita, 322 S.W.3d at 482–83.
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In this case, defense counsel plainly mischaracterized opposing counsel’s remarks.
Many of the pejorative terms referenced back to opening statements when counsel for the
LaBeths discussed the jury’s ultimate question in these words:
Now what this case is really going to be about, you’re going to hear all the
witnesses answer all the questions but the one real decision that you’re going
to be faced with at the end of this case, is Keva Toler a liar, a cheat and a
fraud and if she is, send her out of here without a cent.
Later, after defense counsel had attempted to impeach Keva on her claimed addiction to
pain medications, Keva’s attorney asked his client if her doctor had ever ―express[ed] any
concern that maybe you were a drug pusher and manipulating the system.‖ Finally, during
closing argument, counsel for the LaBeths engaged in additional flights of oratory,
speaking of a hypothetical case, ―Now, maybe some people will fake [a claimed injury]
and do that just for attention or for money but that person is a psychopath. That person is a
sociopath. That person would be a thief and a fraud. That’s not what we brought here.‖
Keva’s attorney was clearly using hyperbole as a trial strategy, rather than
attributing to his client any of these disparaging characteristics. We accordingly condemn
defense counsel’s argument stating that Keva’s attorney personally ―called her‖ all of those
names as a misstatement of the record. Nevertheless, the argument, though improper, does
not rise to the extreme level of being incurable. It could have been cured by instruction, but
any error was waived based on the LaBeths’ failure to object.
Improper Intimidation
In their next challenge, the LaBeths complain of a portion of the Hospital’s closing
statement where defense counsel questioned whether a finding of liability is supported by
the evidence:
One of things you have to find – the burden of proof, of course, is on
the Plaintiff. Burden of proof that you have to be – right now because there’s
no more evidence. [Counsel for the LaBeths] gets to talk after I talk; so he
might remind you of something that happened but he can’t bring you
anything that you don’t know now. So, you would have to already be sitting
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there convinced in your mind that the hospital had a negligent amount of
staffing over there and we’re going to find them to be running the hospital
wrong.
I guess I would just have to challenge you to say, well, that’s a pretty
important conclusion for you to have as a jury and juries have power to make
decisions and set precedents and, you know, we’re in Galveston County now.
Even though this hospital’s in Harris County, we’re in Galveston County
because that’s where this case got filed but you have a hospital here over at
UTMB. So, let’s just say you make a ruling that says, by golly, 26 patients
and 15 nurses is insufficient. You’re negligent. Or let’s say you say from
now on everyone who has a trach has to have three people to turn them and
so you make this major change in how hospitals are supposed to handle their
assignments and training.
What are you going to say your evidence is when the newspaper
reporter goes, well, that’s a pretty big decision. What did they show you?
They must have shown you some standards that they violated nationwide.
Following the LaBeths’ objection that defense counsel’s argument was becoming
―awfully farfetched,‖ the trial court instructed the jury that it should only consider evidence
produced at trial when reaching a verdict. The LaBeths insist that the argument was still
incurable because it intimidated jurors by suggesting that they would have to defend their
verdict to the press if they found the Hospital liable.
A basic aspect of closing argument is that ―counsel may properly discuss the
reasonableness of the evidence as well as the probative effect or lack thereof, of the
evidence.‖ Zurita, 322 S.W.3d at 482. We generally afford counsel wide latitude in this
matter. Id. at 483. The record does not suggest that defense counsel was threatening or
intimidating the jury; rather, the context shows that he was commenting on the state of the
evidence. Indeed, following the trial court’s instruction, defense counsel never returned to
the issue of newspaper reporters or the concerns of the press. Instead, he resumed his
argument by stating,
So, for you to rule and find liability here, the question would be asked to you,
well, what would be the evidence? Was there an expert that came in and said
we need – this staffing is wrong? Was there some kind of proof? Was there
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some evidence this kind of injury is prevalent and foreseeable? You’ll see
that in there you have to find that it’s foreseeable if this would have
happened based on having happened before. Was there some evidence that it
happened before? No. So, I would say they didn’t carry the burden of proof.
Based on defense counsel’s commenting on the state of the evidence, this argument
was not improper.
Improper Accusation of Witness Manipulation
The LaBeths also complain of two instances in which they allege defense counsel
made improper accusations of witness tampering and witness manipulation. In the first
instance, defense counsel commented on the behavior of the LaBeths’ own attorney when
Keva took the stand:
[Counsel for the LaBeths], when he was questioning Keva, would
always say – try to interrupt her from finishing if she was going where he
didn’t want her to go: Keva, Keva, no, no. We’ve got to stay on the track, or
whatever.
Then when I was asking my questions, he would stand up and say:
No, wait. Keva, what he’s asking you is – you just need to answer what he’s
asking you and seemed to be kind of a nervousness that she needs to be
controlled and we have to very easily package the information instead of just
let it flow naturally.
Defense counsel’s argument is supported by the record. Counsel for the LaBeths
rephrased questions for Keva on direct examination, and he also interrupted during
cross-examination to refocus her testimony and, as he stated himself, ―calm her down.‖
In the second instance, defense counsel criticized the testimony of one witness
designated by the LaBeths as an expert on medical damages and causation. The expert’s
deposition testimony revealed that the LaBeths had not supplied the expert with a complete
report of Keva’s injury or preexisting condition. When commenting on the cause of Keva’s
injuries, the expert was asked to assume that Keva had no prior symptoms of back pain.
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The expert testified that he had not received any of the initial medical reports pertaining to
Keva’s injury. The expert also testified that he did know the specific details of the actual
incident, admitting that he was unaware at the time of her injury as to whether the patient
being treated was large or small, or standing up or lying down.
With this background, the LaBeths contend that the following statement by defense
counsel amounts to an improper accusation of witness manipulation:
There was a bit of a – I guess I will use this word, a ―manipulation‖ of [the
expert witness] to give him the wrong information, not even describe that it
was a person laying down. Why do you do that? Why not just tell him what
happened and see what he says. So, that was a manipulation.
The record supports defense counsel’s suggestions that the expert’s testimony was
influenced by incomplete information. We conclude that the argument was not improper.
Improper Personal Opinion of the Dollar Value of the Case
In their final challenge, the LaBeths argue that defense counsel improperly injected
his own opinion of the case into the record. They specifically complain of this language:
―[I]n terms of the case itself if this was really a millions of dollar case, I guarantee you
would have seen something different and more generous in evidence to you in terms of a
medical expert that had actually been given the proper information.‖
As we have already indicated, counsel is given wide latitude when commenting on
the state of the evidence. Zurita, 322 S.W.3d at 482–83. The record shows that the LaBeths
were seeking millions of dollars in damages and that their own medical expert had been
given incomplete information regarding a central issue in the case. We cannot say that
defense counsel’s closing argument was improper or so extreme that it would have
persuaded a juror of ordinary intelligence to agree to a verdict he would not have otherwise
accepted but for the argument.
The LaBeths’ third issue is overruled.
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CONCLUSION
The judgment of the trial court is affirmed.
/s/ Adele Hedges
Chief Justice
Panel consists of Chief Justice Hedges and Justices Boyce and Christopher.
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