Scott's Marina at Lake Grapevine Ltd., D/B/A Silver Lake Marina, Just for Fun of North Texas, Inc. and Silver Lake Marina Store, Inc. v. Allen Johnathan Brown

NO. 07-10-00277-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JANUARY 23, 2012

SCOTT'S MARINA AT LAKE GRAPEVINE LTD., D/B/A
SILVER LAKE MARINA, JUST FOR FUN OF NORTH
TEXAS, INC. AND SILVER LAKE MARINA STORE, INC.,
APPELLANTS

v.

ALLEN JOHNATHAN BROWN, APPELLEE

FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY;

NO. 342-213092-05; HONORABLE BOB MCGRATH, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

OPINION

Appellants, Scott’s Marina at Lake Grapevine, Ltd. d/b/a Silverlake Marina

(Scott’s Marina), Just for Fun of North Texas, Inc. (JFF), and Silver Lake Marina Store,

Inc. (the Store), appeal a judgment entered in favor of appellee, Allen Johnathan Brown,

that awarded Brown $676,300 for past and future actual damages, $10,667.80 for court

costs, and post-judgment interest at a rate of five percent per annum. We affirm.
 Background

Because the issues presented by appellants primarily challenge the sufficiency of

the evidence, we will limit the background to a general overview of the factual

background and procedural history of the case. We will discuss the evidence more fully

in the analysis of each of appellants’ issues below.

Brown was employed to work weekends at the Store during the summer of 2005.

The Store was owned by Scott’s Marina, but had been leased to JFF. Brown was hired

by JFF and was paid by JFF.

On June 11, 2005, Brown was working the cash register at the Store when he

heard a “whoosh-type” noise and was immediately struck by a “godawful smell.” A

substance began to backup and overflow out of the hub drain1 of a Pepsi soda fountain

machine in the Store. The Store was initially evacuated before Brown was ordered to

clean up the backflowed substance. Brown performed the cleanup with the use of a

mop and bucket. No additional protective wear was provided to Brown while he cleaned

up the backflow. Additional spills occurred over the remainder of the weekend of the

11th. It took Brown about ten to fifteen minutes to clean the spillages each time they

occurred.

The following weekend, the hub drain again backflowed on multiple occasions.

On these instances, two other Store employees assisted Brown in clean up of the

spillages. Plumbers were called to the Store on June 20, and apparently installed

1
The hub drain of a soda fountain machine is the receptacle at the bottom of the
machine that is designed to catch spillage from the machine.
2
backflow valves to the hub drain line. Regardless, no further backflows occurred after

June 19.

During the second weekend, Brown developed a cough and a sore throat. He

indicated that the glands in his neck started to swell. Nonetheless, Brown attempted to

work through his developing illness. However, due to severe vomiting and diarrhea,

Brown eventually had to seek medical attention on July 5. Brown’s illness worsened

from July 5 to July 11, when Brown had his mother take him to the emergency room

because he was vomiting uncontrollably. Brown was hospitalized and diagnosed with

enteroviral meningitis and Lemierre’s Syndrome. To prevent the spread of these

conditions, doctors tied off one of Brown’s jugular viens. Brown spent twelve days in

the hospital due to this illness. After his release from the hospital, Brown continued to

have medical and emotional problems that restricted his everyday life.

Brown filed suit against the appellants contending that the spillage that he was

required to clean up in the Store on the weekends of June 11th and 18th of 2005 was

sewage containing human feces, and that this exposure to human feces caused

Brown’s acute and continuing illnesses. At the trial, Brown offered the expert testimony

of Itzhak Brook on the issue of causation. Brook, a leading expert in the field of

anaerobic infectious disease, opined that, in reasonable medical probability, Brown’s

exposure to sewage containing human feces at the Store was the proximate cause of

his enteroviral meningitis and Lemierre’s Syndrome. At the close of evidence, the case

was submitted to the jury who returned a verdict in favor of Brown. Specifically, the jury

found that appellants were negligent; that Scott’s Marina was 60 percent responsible,

3
JFF was 20 percent responsible, and the Store was 20 percent responsible; and

awarded Brown damages of $250,000 for past physical pain and mental anguish,

$75,000 for future physical pain and mental anguish, $89,000 for past lost earning

capacity, $102,300 for future lost earning capacity, $60,000 for past medical expenses,

and $100,000 for future medical expenses. Appellants filed a motion for entry of

judgment notwithstanding the verdict, which was denied by the trial court. The trial

court entered judgment on the jury’s verdict, and appellants appealed this judgment.

Scott’s Marina filed a brief on its own behalf and JFF and the Store filed a joint

brief on their behalf. The issues presented by Scott’s Marina are (1) the trial court

abused its discretion in admitting Brook’s unreliable testimony, (2) the evidence was

insufficient to establish that Brown was exposed to sewage at the Store, and (3) the

jury’s award of actual damages cannot be sustained. The issues presented by JFF and

the Store are (1) the trial court erred in admitting Brook’s testimony over appellants’

objection, (2) the evidence is insufficient to support the jury’s implied finding that Brown

was exposed to human waste, and (3) the evidence is insufficient to support the jury’s

implied finding that appellants should have foreseen the risk that Brown could be

exposed to human waste. We will address appellants’ issues in a slightly different order

starting with the issue of whether the evidence was sufficient to establish that Brown

was exposed to human waste.

Sufficiency of the Evidence – Exposure to Human Feces

By both of their second issues, appellants contend that the evidence was

insufficient to support the jury’s implied finding that Brown was exposed to sewage

4
containing human feces by cleaning up the backflowed spillage in the Store on the

weekends of June 11 and 18 of 2005. The significance of this implied finding is that

Brook’s expert causation testimony assumes that Brown was exposed to human feces

containing enterovirus, and that this exposure led to Brown’s subsequent medical

problems. Additionally, JFF and the Store contend, by their third issue, that the

evidence was insufficient to support the foreseeability of human feces backflowing into

the Store.

Standard of Review

When a party challenges the legal sufficiency of the evidence supporting a jury

finding, we consider the evidence in the light most favorable to the finding and indulge

every reasonable inference that supports it. See City of Keller v. Wilson, 168 S.W.3d

802, 822 (Tex. 2005). We credit favorable evidence if a reasonable jury could and

disregard contrary evidence unless a reasonable jury could not. Id. at 827. If the

evidence would permit reasonable and fair-minded people to reach the finding under

review, the legal sufficiency challenge fails. Id.

When a party challenges the factual sufficiency of the evidence, we consider all

of the evidence and will set aside the finding only if the evidence supporting the finding

is so weak or so against the overwhelming weight of the evidence that the finding is

clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In

conducting our review, we are mindful that the jury is the sole judge of the credibility of

the witnesses and the weight to be given their testimony. City of Keller, 168 S.W.3d at

819; Hinkle v. Hinkle, 223 S.W.3d 773, 782 (Tex.App.—Dallas 2007, no pet.).

5
Analysis

Appellants contend that the overwhelming weight of the evidence proves that the

configuration of the plumbing was such that it would not have been possible for

wastewater or sewage containing human waste to have backflowed into the Store on

the occasions in issue. Due to the configuration of the plumbing, appellants argue that

the evidence conclusively establishes that the substance that backflowed into the Store

came from the burger dock sink and, therefore, did not contain feces.

Appellants contend that the evidence conclusively established that the drain line

from the Store was not directly connected to a sewage line that was used to evacuate

the sewage from boats. Brown contends that there was significant conflict in the

evidence that would allow the jury to reasonably conclude that appellants altered the

configuration of the drainage system between the time of the spillages in question and

subsequent inspections of that drainage system. In fact, at the conclusion of the

hearing on appellants’ motion for judgment notwithstanding the verdict, the trial court

stated, “The findings of the jury can only be understood if you believe the defendants

changed the configuration of the pipes after the incidents, and then came to court and

lied about it. There is testimony to support this. There’s no evidence to refute it.”

Further, it is undisputed that the hub drain line was connected to the gray water burger

dock line and that backflow prevention devices were not installed on these lines. While

we conclude that there is some evidence that would “refute” the theory that appellants

altered the configuration of the drainage system and then lied about it, we agree with

the trial court that there is some evidence to support this conclusion. As such, we must

6
defer to the jury’s reasonable resolution of this conflict in the evidence. See City of

Keller, 168 S.W.3d at 819. Thus, we conclude that the evidence was sufficient to

establish that the pump-out sewage line was connected to the hub drain line.

However, concluding that the pump-out sewage line was connected to the hub

drain line is not sufficient to establish that the spillage was sewage containing human

feces. Appellants contend that the configuration of the pump-out sewage system was

such that, at the time of the spillage, it would have been impossible for sewage from the

pump-out sewage line to have backflowed into the Store. According to appellants, this

is because the two pump-outs operated in conjunction with one another based on

vacuum suction at the time of the spillage and the multiple openings in the hub drain

line and gray water burger dock line would have prevented the pump-outs from being

able to push the sewage up through the hub drain line. Brown’s ultimate theory is that

appellants installed a second motor on the pump-out sewage line in the Spring of 2005

that allowed the pump-out lines to operate independently of one another, and that this

motor provided the force sufficient to push the sewage through the hub drain line.

The evidence relating to whether the pump-outs operated independently or in

conjunction at the time of the backflow is in sharp conflict. Evidence that supports the

determination that the pump-outs were working independently and on their own motors

in June of 2005 was presented through the testimony of Rulene Reynolds, manager of

Silver Lake Marina at the time of the incidents, J.B. Strohkirch, maintenance man for the

marina, and Tom Sanford, superintendent for the marina. However, each of these

witnesses also provided testimony that, at the time of the incidents, the pump-out lines

7
were working in conjunction with one another, with only one motor, based on vacuum

suction.2 Because this testimony is internally inconsistent, we must defer to the jury’s

determination of which version of events was credible. See id.; Hinkle, 223 S.W.3d at

782. The jury’s resolution of this conflict is especially entitled to deference in light of the

evidence addressed above that would allow a reasonable determination that appellants

altered the configuration of the plumbing and “then came to court and lied about it.”

Further bolstering the jury’s determination that the pump-outs pushed sewage

into the Store is the testimony providing that the pump-outs could only operate using

vacuum suction if they were not connected to the hub drain line. In other words, the

evidence established that it would not be possible for the pump-outs to be connected to

the hub drain line and still operate in conjunction, using only a single motor, because

the openings at the end of the hub drain line would have prevented the creation of a

vacuum. However, if the pump-outs operated independently, with each having their

own motor, the pump-outs would have been able to operate even if connected to the

hub drain line. In fact, according to Mark Jensen, appellants’ engineering expert, the

motor would allow the waste from the pump-outs to be pushed through the hub drain

line causing the backflow of waste containing human feces into the Store.

In addition, a review of the entire record reveals that there was significant

disagreement among the eyewitnesses about the characteristics of the substance that

backflowed into the Store. Some of the witnesses testified that the substance was clear

2
Both Strohkirch and Sanford testified that a second motor was installed in
March of 2005 in their pre-trial depositions. However, at trial, each changed their
testimony to indicate that the second motor was installed in the Fall of 2005.
8
and smelled like rotten food and grease. Other eyewitnesses testified that the

substance was dirty and that it smelled like sewage. Obviously, this testimony creates a

conflict in the evidence regarding the characteristics of the substance that backflowed

into the Store. The jury clearly resolved this conflict by determining that the substance

that backflowed into the Store was sewage containing human feces. Because there is

evidence to support the jury’s implied finding that the substance that backflowed into the

Store contained human feces, we must conclude that there was legally and factually

sufficient evidence to support this implied finding. See Walker & Assocs. Surveying,

Inc. v. Austin, 301 S.W.3d 909, 916-17 (Tex.App.—Texarkana 2009, no pet.).

As the evidence is sufficient for the jury to have concluded that the substance

that backflowed into the Store was sewage containing human feces, regardless of JFF

and the Store’s knowledge of the configuration of the plumbing, it was foreseeable that

making an employee clean up sewage containing human feces by use of a mop and

bucket could expose the employee to viruses contained within the human feces. The

combined effect of the evidence that allows for a reasonable inference that JFF and the

Store were aware of the plumbing’s configuration together with JFF and the Store

requiring Brown to clean up a backflowed spillage that the jury could reasonably find to

have been sewage containing human feces is enough to establish that Brown’s

exposure to human feces was foreseeable.

Consequently, we overrule appellants’ second issues and conclude that the

evidence was sufficient to support the jury’s implied finding that the substance that

backflowed into the Store was sewage containing human feces. Likewise, due to the

9
the evidence allowing the jury to reasonably conclude that JFF and the Store were

aware of the plumbing’s configuration and that Brown was required to clean up human

feces by JFF and the Store, the evidence is sufficient to support the jury’s implied

finding that Brown’s injury was foreseeable. As such, we also overrule JFF and the

Store’s third issue.

Admissibility of Expert Causation Testimony

By their first issues, appellants contend that the trial court erred in admitting the

expert medical testimony on causation of Dr. Brook over appellants’ objections that the

testimony was unreliable. While their issue is presented in terms of admissibility, a

review of the arguments of appellants reveal that appellants are actually contending that

the evidence is insufficient to establish the reliability of Brook’s expert testimony on

causation. As such, our analysis of the sufficiency of the evidence supporting the

reliability of Brook’s testimony will determine our assessment of the admissibility of

Brook’s testimony. See Merrill Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711

(Tex. 1996) (evidence must be scientifically reliable to constitute “some evidence” to

support judgment).

Standard of Review

For expert testimony to be admissible, the expert must be qualified, the testimony

must be relevant to the issues in the case, and the testimony must be based on a

reliable foundation. TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 234 (Tex. 2010);

Gross v. Burt, 149 S.W.3d 213, 237 (Tex.App.—Fort Worth 2004, pet. denied). Even

when expert testimony is admitted by the trial court, a party may complain on appeal
10
that the expert testimony is legally insufficient to support the judgment because it is

unreliable so long as that party objected to the reliability of the evidence before or

during trial.3 Maritime Overseas Corp., 971 S.W.2d at 409; Gross, 149 S.W.3d at 237.

Unreliable expert testimony is not relevant evidence and, therefore, constitutes no

evidence. See TXI Transp. Co., 306 S.W.3d at 234; Gross, 149 S.W.3d at 237.

In determining whether expert testimony is reliable, a reviewing court must

employ “an almost de novo-like review and, like the trial court, look beyond the expert’s

bare testimony to determine the reliability of the theory underlying it. Gross, 149

S.W.3d at 237 (quoting Austin v. Kerr-McGee Refining Corp., 25 S.W.3d 280, 285

(Tex.App.—Texarkana 2000, no pet.)). “An expert’s simple ipse dixit is insufficient to

establish a matter; rather, the expert must explain the basis of his statements to link his

conclusions to the facts.” Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999). In

assessing the admissibility of expert testimony, we do not focus on the correctness of

the expert’s opinion, but on the reliability of the analysis the expert used in reaching his

or her conclusions. Gross, 149 S.W.3d at 237.

3
We acknowledge that Brown contends that appellants waived their issue
regarding the reliability of Brook’s expert testimony. However, when the video of
Brook’s deposition testimony was offered at trial, the appellants timely objected to this
evidence “based on the hearing that we’ve had outside the presence of the jury with
regard to Daubert and those matters.” The trial court overruled the objection and the
videotaped deposition was shown to the jury. As such, appellants’ objection to the
admission of Brook’s testimony at trial simply re-urged their objections made pretrial,
and were sufficient to preserve error. See TEX. R. APP. P. 33.1.
Further, appellants can challenge the sufficiency of the evidence supporting the
reliability of Brook’s testimony so long as they objected to the reliability of the evidence
before trial or when it is offered at trial. See Maritime Overseas Corp. v. Ellis, 971
S.W.2d 402, 409 (Tex. 1998). Appellants, in the present case, objected to the reliability
of Brook’s testimony both before trial and when offered at trial.
11
 The Texas Supreme Court has articulated six nonexclusive factors appellate

courts should consider in determining whether scientific testimony is reliable:

(1) The extent to which the theory has been or can be tested;
(2) The extent to which the technique relies upon subjective
interpretation of the expert;
(3) Whether the theory has been subjected to peer review and
publication;
(4) The technique’s potential rate of error;
(5) Whether the underlying theory or technique has been generally
accepted as valid by the relevant scientific community; and
(6) The non-judicial uses that have been made of the theory or
technique.

Havner 953 S.W.2d at 714. However, the approach to assessing reliability must be

flexible depending on the nature of the evidence. Transcon. Ins. Co. v. Crump, 330

S.W.3d 211, 216 (Tex. 2010). One additional factor that has been held to be of

particular significance is whether the expert has ruled out other likely causes within a

reasonable degree of medical probability. See id. at 217-18.

Analysis

a. The Extent to Which the Theory Has Been or Can Be Tested

Appellants’ challenge of the testing of Brook’s theory basically challenges the

theory in two particular aspects: (1) Brook assumed that Brown was exposed to

wastewater or sewage containing human feces, and (2) Brook failed to establish an

accepted causal link between exposure to human feces and development of Lemierre’s

Syndrome.

12
 As for Brook’s assumption that Brown was exposed to human feces, his

testimony is clear that his opinion is premised on this assumption. Thus, the weight that

the jury could reasonably afford Brook’s opinion was dependent on the jury’s resolution

of the factual issue regarding whether Brown was exposed to human feces when he

cleaned up the backflowed spillage at the Store. As addressed above, there was

sufficient evidence presented to allow the jury to reasonably conclude that the

backflowed spillage contained human feces. However, because Brook acknowledged

this assumption and because the validity of this assumption relied on the jury’s

determination of fact, the validity of Brook’s assumption goes to the weight to be

ascribed to the evidence rather than to its admissibility. See LMC Complete Auto., Inc.

v. Burke, 229 S.W.3d 469, 478 (Tex.App.—Houston [1st Dist.] 2007, pet. denied) (“The

weakness of facts in support of an expert’s opinion generally goes to the weight of the

testimony rather than the admissibility.”).

As for the causal connection between exposure to human feces and Lemierre’s

Syndrome, we believe that there was sufficient evidence presented during the pre-trial

hearing to establish that a causal chain between exposure to human feces and

Lemierre’s Syndrome is accepted. Dr. Louis Marshall Sloan, appellants’ expert witness,

testified in his deposition that the primary cause of enteroviral infection is exposure to

fecal matter. Sloan also acknowledged the textbook, PRINCIPLES AND PRACTICE OF

INFECTIOUS DISEASES, to be commonly relied upon as authoritative by infectious disease

specialists. Portions of this textbook offered by Brown in his pre-trial evidence identifies

that wastewater and sewage are common sources of enteroviral infections. While

Sloan and Brook disagreed regarding whether the enterovirus or fusobacterium caused
13
Brown’s pharyngitis that led to the Lemierre’s Syndrome, Brown offered a peer reviewed

article as well as citation to the authoritative textbook that Lemierre’s Syndrome is an

uncommon, but known, result of a viral pharyngitis. After reviewing all of the evidence

that was offered to establish that Brown’s exposure to human feces caused his

enteroviral infection which led to his Lemierre’s Syndrome, while certainly not

conclusive, we believe that there is some medical acceptance of a causal connection

between exposure to human feces and Lemierre’s Syndrome that is sufficient to

establish the reliability of Brook’s theory.

b. The Extent to Which the Theory Has Been Subjected to Peer Review and
Publication

Appellants next challenge the lack of peer review or publication of Brook’s theory.

Essentially, appellants complain that Brook did not prove that Brown was exposed to

human feces that contained enterovirus, and that he did not cite any published support

for a scientifically significant link between enteroviral and/or fuseobacteria exposure and

the types of illnesses which Brown suffered.

As addressed above, Brook premised his testimony on the clearly stated

assumption that Brown was exposed to sewage containing human feces when Brown

cleaned up the backflowed spillage in the Store. Both Brook and Sloan as well as much

of the published medical articles that were submitted by Brown acknowledge that

enterovirus can be found in human feces, and that the most common form of

transmission of enteroviral infections is oral-fecal transmission.

14
 As to the claimed lack of published support for a link between enteroviral

infection and Brown’s medical issues, the published articles appear to support Brook’s

explanation of the link between the enteroviral infection causing the pharyngitis, which

then created the conditions necessary for Brown to develop Lemierre’s Syndrome.

Sloan opined that Brown’s Lemierre’s Syndrome was caused by fusobacterium alone.

However, fusobacterium is a natural bacteria that is in the mouths of all humans. This

fusobacterium is prevented from causing infections by the body’s natural immune

system. According to Brook and the medical articles offered by Brown, when a virus

weakens a person’s immune system, it can create conditions where the fusobactrium

can be released and can cause pharyngitis. Thus, while the experts disagree regarding

whether the enterovirus or the fusobacterium caused Brown to develop the pharyngitis

that became Lemierre’s Syndrome, there is published support for a scientifically

significant link between Brown’s exposure to human feces and his development of

Lemierre’s Syndrome.

c. The Extent to Which Other Likely Causes Were Ruled Out

Appellants next contend that Brook’s expert testimony on causation was

unreliable because he failed to rule out other likely causes of Brown’s illness. This is an

important factor in assessing the reliability of an expert’s opinion testimony. See

Transcon. Ins. Co., 330 S.W.3d at 217-18; Havner, 953 S.W.2d at 720.

Both experts in this case opined that the most common source of enteroviral

infection is the oral introduction of human fecal matter. Brook testified that the sewage

that backflowed into the Store was, within a reasonable degree of medical probability,

15
the source of Brown’s enteroviral infection. Sloan testified that, if the backflowed

spillage was sewage and if the incubation period matched, then it was a “higher

possibility” as the source of Brown’s enteroviral infection. Further, many other likely

causes of enteroviral infection were considered and ruled out both by Brook as well as

by the physicians that treated Brown at Baylor Regional Medical Center at Grapevine.

Finally, Brown provided an affidavit that attested that he was not exposed to any of the

other most common sources of enterovirus.

In the final analysis, Brook was able to rule out the most likely other causes of

Brown’s contracting the enteroviral infection.4 A medical causation expert need not

disprove or discredit every possible cause other than the one he espouses. Transcon.

Ins. Co., 330 S.W.3d at 218. If evidence presents other plausible causes that could be

negated but are not, the reliability of the testimony is undermined. See id. However, in

this case, the only plausible causes that were capable of being negated were negated.

d. Incubation Period and Brown’s Illness

Another challenge to Brook’s reliability raised by appellants is that the period

between Brown’s exposure to the spillage and his development of symptoms does not

correlate to the medically accepted incubation period for enterovirus. Sloan

emphasized this alleged inconsistency in Brook’s testimony.

4
 We disagree with the dissent’s characterization of Brook’s testimony that he was
able to rule out other possible sources of Brown’s contraction of enterovirus as
conclusory. A number of other possible sources of Brown’s exposure to enterovirus
were ruled out by information Brown provided to the doctors that treated his enteroviral
infection, and this information was documented in Brown’s medical records which were
reviewed by Brook. Further, Brown’s affidavit provided additional evidence ruling out
his exposure to other sources of enterovirus.
16
 Sloan indicated that the normal incubation period for an enteroviral infection is

three to five days with the extremes being two to twelve days.5 Because Brown did not

seek medical care until July 4, which was fifteen days after his last exposure to the

backflowed spillage in the Store, Sloan concluded that the exposure could not have

caused Brown’s enteroviral infection. However, Brown’s mother indicated to Brown’s

initial treating physicians that the onset of his symptoms actually occurred on or about

June 20. Clearly, symptoms appearing on June 20, the day after Brown’s last exposure

to the spillage, would fit within the incubation period of both Brook and Sloan. Nothing

in the testimony of Sloan acknowledges this June 20 onset of symptoms.

As there is evidence that supports Brown’s onset of symptoms occurring on June

20, well within the incubation periods identified by both experts, we do not conclude that

the delay in Brown exhibiting symptoms is evidence that Brook’s expert opinion is

unreliable.

Conclusion

As our review of the record reveals that the evidence was sufficient to support

the reliability of Brook’s expert testimony opining that Brown’s exposure to human feces

at the Store caused his enteroviral infection6 which then led to Brown’s other medical

conditions, we overrule appellants’ first issues.

5
Brook’s identification of the incubation period for enteroviral infection was that
the typical case would become symptomatic between twelve hours to three days with
the outer extreme being symptoms appearing fourteen days after exposure.
6
  The dissent focuses on the legal sufficiency of the evidence supporting whether
the sewage containing human feces that backflowed into the Store contained
17
 Sufficiency of the Evidence – Damages

By Scott’s Marina’s third issue, appellants challenge the sufficiency of the

evidence to support the jury’s award of actual damages to Brown.7 Specifically,

appellants claim that the jury’s award of damages was excessive.

As a general principle, we need to remain mindful that the amount of damages

awarded is uniquely within the jury’s discretion. Missouri Pac. R.R. Co. v. Roberson, 25

S.W.3d 251, 257 (Tex.App.—Beaumont 2000, no pet.). “[I]t is only when [a jury’s]

enterovirus, and whether Brown’s cleaning of this sewage was how Brown contracted
the enteroviral infection. While we agree with the dissent’s analysis that there were
ways in which Brown’s evidence that the sewage contained enterovirus could have
been stronger, we disagree with the dissent’s conclusion that the evidence establishing
the likely presence of enterovirus in the sewage containing human feces was legally
insufficient.

The evidence that supports the conclusion that the sewage that backflowed into
the Store contained enterovirus and that it was the source of Brown’s contraction of the
enteroviral infection includes: Brook’s testimony that, within a reasonable degree of
medical probability, the most likely source of Brown’s enteroviral infection was the
sewage containing human feces that backflowed into the Store; Sloan’s testimony that,
if Brown was exposed to human feces by cleaning up the backflowed substance and his
onset of symptoms fell within the incubation period, facts which are established by
sufficient evidence, then the spillage was the “higher possibility” as the source of
Brook’s enteroviral infection; and the recognition in the authoritative textbook,
PRINCIPLES AND PRACTICE OF INFECTIOUS DISEASES, of the increased risk of enteroviral
infection arising from exposure to human feces.

Likewise, as discussed in footnote 4, we conclude that there is substantial
evidence ruling out other sources of enterovirus, and disagree with the dissent’s
characterization that other sources were ruled out solely on the basis of Brook’s bare
conclusion.

7
While the issue of the sufficiency of the evidence to support the damages
awarded is raised only by Scott’s Marina, under the authority of Texas Rule of Appellate
Procedure 9.7, JFF and the Store joined in and adopted by reference all issues and
arguments advanced by Scott’s Marina. See TEX. R. APP. P. 9.7. Thus, we will
consider the issue of the sufficiency of the evidence to support the damages awarded
as being asserted by all appellants.
18
award of damages is ‘flagrantly outrageous, extravagant, and so excessive as to shock

the judicial conscience,’ that it may be disturbed.” Id. at 257-58 (quoting Am. Bank of

Waco v. Waco Airmotive, Inc., 818 S.W.2d 163, 175 (Tex.App.—Waco 1991, writ

denied)).

The standard of review for a challenge contending that an award of actual

damages was excessive is the same as is used in a factual sufficiency challenge. See

Maritime Overseas Corp., 971 S.W.2d at 406. As stated above, when a party

challenges the factual sufficiency of the evidence, we consider all of the evidence and

will set aside the finding only if the evidence supporting the finding is so weak or so

against the overwhelming weight of the evidence that the finding is clearly wrong and

manifestly unjust. Cain, 709 S.W.2d at 176. However, we must remain mindful that the

jury is the sole judge of the credibility of the witnesses and the weight to be given their

testimony. City of Keller, 168 S.W.3d at 819; Hinkle, 223 S.W.3d at 782.

Appellants specifically challenge the following damages findings: (1) $89,000 for

loss of past wages, (2) $102,300 for loss of earning capacity in the future, (3) $60,000

for medical expenses incurred before trial, (4) $100,000 for future medical expenses, (5)

$250,000 for past physical pain and mental anguish, and (6) $75,000 for future physical

pain and mental anguish.

Lost Earning Capacity

Appellants’ first challenge to the jury’s award of damages goes to the sufficiency

of the evidence to support the awards for Brown’s lost earning capacity. Lost wages

refers to the actual loss of income due to an inability to perform a specific job from the
19
time of injury to the time of trial. Koko Motel, Inc. v. Mayo, 91 S.W.3d 41, 51

(Tex.App.—Amarillo 2002, pet. denied). On the other hand, lost earning capacity is an

assessment of what the plaintiff’s capacity to earn a livelihood actually was and the

extent to which that capacity was impaired by the injury. Id. Both forms of lost earning

capacity are measured not by what a person actually earned before an injury, but by

what the person’s capacity to earn was even if he had never worked in that capacity in

the past. Gen. Motors Corp. v. Burry, 203 S.W.3d 514, 553 (Tex.App.—Fort Worth

2006, pet. denied). Because calculating the extent of impairment constitutes an

exercise in uncertainty, the assessment of past capacity is left to the discretion of the

jury so long as there is reasonably certain evidence to support the jury’s exercise of that

discretion. Koko Motel, Inc., 91 S.W.3d at 51-52.

Looking to the evidence in support of the jury’s award of $89,000 for Brown’s lost

earning capacity between injury and trial, the jury was presented evidence that Brown

was a hard working young man that held two jobs before the injury. The jury also heard

that Brown was a fairly skilled automobile mechanic, and that he was attempting to

become more skilled in this area through working at an auto repair and performance

garage, where he earned approximately $10 per hour, and through pursuing an

education in marketing and management in the automotive aftermarket industry. As a

side business, Brown ran an automobile repair service out of his house, charging other

students $20 per hour to perform various repairs to their vehicles. Further, the jury

heard evidence that Brown was unable to maintain employment because of the

frequency with which he continued to have illnesses and setbacks due to his exposure

to human feces at the Store.
20
 Thus, we conclude that the evidence was sufficient to establish that, prior to the

injury, Brown had the capacity to work, at least, a 40-hour work week, and the evidence

of the skills Brown possessed in automobile repair is sufficient to establish a reasonable

inference that he would have had the capacity to work in the auto repair industry, and

that he would have earned at least $10 per hour. See Burry, 203 S.W.3d at 553. Also,

we conclude that the evidence was sufficient to establish that Brown’s inability to work

was the result of the illnesses and their effects caused by his exposure to human feces

at the Store. As a result, we conclude that, at a minimum, Brown’s lost capacity to earn

wages from the time of his exposure to human feces at the Store to the trial was

approximately $94,000.8 While an offset for wages that Brown was able to earn during

this time would bring the total slightly under the damages awarded by the jury, we note

that our calculation of lost earnings reflects a minimum calculation of lost earnings

supported by the record, and we cannot say that the jury abused its discretion by

awarding Brown slightly more than the absolute minimum amount that the evidence

would support. See Koko Motel, Inc., 91 S.W.3d at 51-52.

Turning to appellants’ challenge of the sufficiency of the evidence to support the

jury’s award of $102,300 for future lost earning capacity, the jury heard evidence that

Brown was unable to hold steady employment due to the frequency with which he

became ill and needed medical attention. After repeated attempts, Brown has been

unable to progress toward a college degree due to the physical and psychological

effects of his exposure to human feces at the Store. The jury also heard evidence that,

because of seizures Brown began to experience after the instant incident, he is unable

8
This calculation is based on a $10 per hour job working 40 hours per week.
21
to drive safely. Finally, the jury also heard evidence that Brown suffered from post-

traumatic stress disorder and depression, and that his treating psychologist felt that

Brown’s chances of recovery from these issues was guarded or pessimistic.

Thus, we conclude that the evidence was sufficient to allow the jury to conclude

that Brown’s future earning capacity was diminished by the illnesses he developed as a

result of his exposure to human feces in the Store. The jury was able to infer that

Brown would have a substantial life expectancy based on his health and vitality prior to

the present incident, as well as the fact that he was only 23 years old at the time of trial.

See Borden, Inc. v. Guerra, 860 S.W.2d 515, 524-25 (Tex.App.—Corpus Christi 1993,

writ dism’d by agr.). We further conclude that it is reasonable for the jury to infer that

Brown’s earning capacity is diminished by his inability to progress toward obtaining a

higher education or to maintain steady employment, and that these limitations on

Brown’s capacity are the direct result of his continuing illnesses and psychological

problems which are the direct result of his exposure to human feces in the Store. The

evidence of Brown’s inability to continue to advance within the automotive repair and

performance field due to his injuries and their effects support a loss of earning capacity

continuing into the future and resulting from Brown’s exposure to human feces at the

Store. We conclude that the evidence was sufficient to allow the jury, in the exercise of

its sound discretion, to determine the proper amount of damages to compensate Brown

for future loss of earning capacity. See McIver v. Gloria, 140 Tex. 566, 169 S.W.2d

710, 712-13 (1943).

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Medical Expenses

Turning to appellants’ challenge to the sufficiency of the evidence to support the

jury’s award of $60,000 for Brown’s past medical expenses, we note that appellants’

entire argument is premised on their contention that the evidence is insufficient to

establish a causal connection between Brown’s exposure to human feces in the Store

and his resulting illness. However, as thoroughly addressed in the issues above, we

have concluded that the evidence was sufficient to allow the jury to conclude that Brown

was exposed to human feces and that this exposure was the producing cause of

Brown’s past medical expenses. As such, we affirm the jury’s award of $60,000 for

medical expenses incurred by Brown in the past.9

Appellants also challenge the sufficiency of the evidence supporting the jury’s

award of $100,000 for medical expenses reasonably expected to be incurred by Brown

in the future. For future medical expenses to be recoverable, the evidence must show

that there is a reasonable probability that such expenses will be incurred in the future.

Columbia Med. Ctr. of Las Colinas v. Bush, 122 S.W.3d 835, 862-63 (Tex.App.—Fort

Worth 2003, pet. denied). Due to the inherently speculative nature of awards for future

medical expenses, the factfinder may award future medical damages based on the

nature of the injury, the medical care rendered prior to trial, and the condition of the

injured party at the time of trial. Ibrahim v. Young, 253 S.W.3d 790, 809 (Tex.App.—

Eastland 2008, pet. denied).

9
We note that appellants do not challenge the sufficiency of the evidence to
support the $60,000 amount of past medical expenses. As such, we may not review
that issue. See Allright, Inc. v. Pearson, 735 S.W.2d 240, 240 (Tex. 1987).
23
 In the present case, we conclude that the evidence is sufficient to establish a

reasonable probability that Brown will sustain future medical expenses in treatment of

the illnesses and effects arising from his exposure to human feces in the Store. Brook

testified that the illnesses and even the treatments received by Brown would result in

him having an increased susceptibility to infection, and this susceptibility has been

borne out by the frequency with which Brown has had to seek medical care from the

time of exposure to trial. Further, Dr. Rider, Brown’s treating psychologist, testified that

Brown suffers from depression and post-traumatic stress disorder due to his exposure

to human feces and illnesses arising therefrom, and that Brown’s prognosis is guarded

or pessimistic. In addition, the jury heard evidence regarding the extent of medical

treatment Brown received in the past, including significant treatments continuing years

beyond Brown’s exposure. Based upon the evidence supporting the serious nature of

Brown’s injuries, the cost and amount of medical care necessitated before trial, and the

evidence of the reasonable probability that Brown will require frequent physical and

psychological treatment in the future due to his exposure to human feces in the Store,

we conclude that the jury’s exercise of its discretion in awarding Brown $100,000 for

future medical expenses is supported by sufficient evidence. See id.

Physical Pain and Mental Anguish

Finally, appellants challenge the sufficiency of the evidence to support the jury’s

award of damages to Brown for physical pain and mental anguish.

In addressing both the jury’s award of $250,000 for past physical pain and mental

anguish and $75,000 for future physical pain and mental anguish, appellants’

24
arguments are confined solely to the sufficiency of the evidence to support the jury’s

award for mental anguish damages. None of the appellants challenged the trial court’s

charge to the jury which asked for a lump sum for both physical pain and mental

anguish damages. Appellants did not draw the trial court’s attention to their complaint

that there was insufficient evidence to support an award of mental anguish damages,

separate and apart from physical pain damages, during the charge conference, in

closing arguments, or in a motion for new trial. See Ake v. Monroe, No. 04-05-00751-

CV, 2006 Tex.App. LEXIS 9138, at *11-12 (Tex.App.—San Antonio Oct. 25, 2006, no

pet.) (mem. op.). As such, appellants are limited to challenging the sufficiency of the

evidence supporting the damage award as a whole. Id. at *12 (citing Thomas v.

Oldham, 895 S.W.2d 352, 359-60 (Tex. 1995), and Tagle v. Galvan, 155 S.W.3d 510,

514-16 (Tex.App.—San Antonio 2004, no pet.)). Because appellants do not argue that

the evidence is insufficient to support the jury’s awards for physical pain and mental

anguish, we are unable to assess the sufficiency challenge asserted by appellants.10

See id. at *13.

Conclusion

Having overruled each of appellants’ issues, we affirm the judgment of the trial

court.

Mackey K. Hancock
Campbell, J., dissenting. Justice

10
Even were we to conclude that the evidence is insufficient to support any
award of damages to Brown for past or future mental anguish, it is possible that the
jury’s entire awards of past and future physical pain and mental anguish damages were
to compensate Brown for the physical pain he has and will suffer.
25