NUMBER 13-07-00469-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
LIZANDRO BARRIOS, Appellant,
v.
KING FISHER MARINE SERVICE, L.P., Appellee.
On appeal from the 197th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Yañez, Rodriguez, and Garza
Memorandum Opinion by Justice Yañez
Appellant, Lizandro Barrios, sued his employer, appellee King Fisher Marine
Service, L.P. ("King Fisher"), for an injury he sustained while working on a dredging vessel.
The jury awarded Barrios $130,000 for past medical expenses. It awarded zero damages,
however, for physical pain and mental anguish.1 By one issue, Barrios contends that the
jury's finding of no damages for "pain and suffering" was factually insufficient.2 We affirm.
1
On appeal, Barrios does not argue that he established any dam ages for m ental anguish.
2
The jury was asked to determ ine the "sum of m oney, if paid now in cash, [that] would fairly and
reasonably com pensate Lizandro Barrios for his injury, if any, that resulted from the occurrence in question"
for past and future "[p]hysical pain and m ental anguish."
I. BACKGROUND
Barrios worked for King Fisher as a boatman on the Shamrock, a dredging vessel.
As a boatman, Barrios's duties included, among other things, rigging lines, securing barges
to the Shamrock, and unloading barges. On February 19, 2005, Barrios reported that he
injured his left wrist. Barrios went to the Valley Day and Night Clinic (the "Clinic") in
Brownsville, Texas, and a cast was placed on his left arm.3 Barrios returned to work
wearing the cast with instructions that he was to "return to light duty."
On March 10, 2005, Barrios reported that he had fallen while walking down the
stairs on the Shamrock and injured his left side. According to Barrios, when he fell, he hit
his head, arm, and shoulder. After receiving treatment at the Clinic, Barrios began seeing
an orthopedic surgeon, Guillermo Pechero, M.D. Eventually, Dr. Pechero concluded that
Barrios had a tear in the annular ligament covering the disc in the C5-C6 level of his neck
and performed surgery on the area.
Barrios sued King Fisher for negligence. The trial court submitted liability questions
on negligence for the March 10 incident; however, Barrios waived submission of an issue
regarding the February 19 incident. The jury found that Barrios and King Fisher were each
fifty percent negligent. The jury awarded past medical expenses of $130,000 to Barrios;
however, the jury found zero damages for future medical care and past and future physical
pain, mental anguish, loss of earning capacity, disfigurement, and physical impairment.
Barrios filed a motion for new trial, which the trial court denied. This appeal ensued.
II. THE EVIDENCE
Barrios testified that x-rays revealed that he had fractured his wrist and that the
doctor ordered "very simple work" and restricted him from using his left hand. According
to Barrios, the "captain, the people in charge of the dredge" told him that he had to go back
3
The issue of whether Barrios fractured his wrist was contested at trial. However, at trial, Barrios
chose to not subm it the issue of the wrist injury to the jury.
2
to work and that he would be given "an easy job"; however, Barrios stated he was assigned
his former duties as a boatman. Barrios testified that as a boatman, he was told to move
the anchors and when he walked down the stairs to do so, he fell and was injured again.
Barrios stated that the stairs were wet and slippery.
Barrios testified that "they" ordered him to sit down for a while and "they" made a
report. Barrios went home to rest and then returned to work as scheduled. According to
Barrios, when he returned to work, he told "the people in charge" that he wanted to see a
doctor because he was "bruised where [he] had fallen." Barrios stated that his side hurt
because he hit his head, arm, and shoulder. Barrios sought treatment at the Clinic, where
a physician told him to go home, rest, and begin physical therapy.4 Eventually, Barrios
sought treatment from Dr. Pechero.
Dr. Pechero testified that he began seeing Barrios on March 22, 2005, and that
Barrios complained of pain in the neck and left shoulder. Barrios told Dr. Pechero that he
had injured his neck and left shoulder when he fell off a "ladder" while working as a
boatman for King Fisher. Dr. Pechero believed that the history provided by Barrios was
consistent with the injuries Barrios described. Dr. Pechero stated that he started Barrios
on physical therapy and pain medications. According to Dr. Pechero, Barrios continued
to complain of pain and that during the first six to ten months of treatment, Barrios did not
seem to be improving. Dr. Pechero was concerned because that meant that something
was "going on in his neck" and the treatment was not working.
Although Dr. Pechero recalled that an MRI had been performed on Barrios in April
of 2005, he did not recall the exact date or the results of the report.5 A second MRI was
4
Tam m y Boyd, the hum an resource m anager for King Fisher, testified that after Barrios fell down the
stairs, he was being treated at the Clinic "for a sprained cervical area, which is the neck, and a sprained
shoulder." However, according to Boyd, Barrios ended the course of treatm ent with the C linic when he
stopped showing up for his shift on March 17. Boyd stated that the physical therapy had not been "set up"
because Barrios did not return to work. Boyd stated that to her knowledge, Barrios had not undergone
physical therapy.
5
Dr. Pechero explained that an MRI is a device utilizing large m agnets that allows doctors to see
inside the patient's body.
3
performed on June 1, 2005, allowing Dr. Pechero to view Barrios's neck and discern the
vertebral bodies, the discs, and spinal cord. Dr. Pechero opined that the MRI showed that
Barrios had a "[b]ulging disc at C5-C6 level."6 According to Dr. Pechero, a bulging disc can
be a problem and can cause pain in the neck.
After hearing Barrios describe pain in his neck and down his left arm and decreased
sensation and weakness in the left arm, Dr. Pechero became concerned that the clinical
examination was not consistent with the MRI. Dr. Pechero stated that he suspected that
something was irritating the nerve and that "[t]here was a progressive problem that wasn't
resolving itself," so he ordered a discogram.7 According to Dr. Pechero, the discogram
revealed that Barrios had a torn disc and that he was having pain.8
During cross-examination, the following colloquy occurred:
[King Fisher's counsel]: Now in these discograms that you've looked at,
in the majority of them, if not all of them, you
understand that they'll do what they call a
Marcaine challenge?
[Dr. Pechero]: Yes.
[King Fisher's counsel]: Can you tell us what a Marcaine challenge is?
[Dr. Pechero]: Well, to see how the patient reacts, we just inject
a numbing medication.
[King Fisher's counsel]: Okay. So first you might provoke pain in a
certain disc area, right?
[Dr. Pechero]: Correct.
[King Fisher's counsel]: And then in order to make sure that the
response is an accurate response, you'll then
inject a pain relief medication into the same
area, right?
[Dr. Pechero]: Well, they usually inject a dye. I'm not real
6
Dr. Pechero described that a bulging disc occurs when a ligam ent that norm ally holds the gelatinous
m aterial of the disc is thinned out or has been torn.
7
Dr. Pechero explained that a discogram is a procedure whereby a needle is used to inject dye into
the disc area to determ ine if there is a tear in the disc causing pain.
8
Dr. Pechero stated that a torn disc m eans that "[t]he fibers that, that sustain the disc, that m ake up
the disc are torn, and the pain fibers in there in turn cause pain."
4
familiar with how each one of them do it. It may
be a little different.
[King Fisher's counsel]: But the Marcaine challenge assists the doctor
performing the discogram in making sure that the
pain response is a truthful pain response, right?
[Dr. Pechero]: Correct.
[King Fisher's counsel]: Because this is a provocation test, where you're
relying upon the subjective complaints of the
patient, right?
[Dr. Pechero]: I think part of it is. The other part is objective.
[King Fisher's counsel]: Okay. But there is a portion of it where you
inject dye into a disc area in an effort to provoke
pain, and if it does provoke pain then the patient
is relied upon to say, 'Yes, I'm experiencing
pain,' or 'No, I'm not,' correct?
[Dr. Pechero]: Correct.
[King Fisher's counsel]: And then to test whether that was a correct
response they'll also inject, then, the Marcaine,
which is a pain reliever, that should eliminate
that pain, right?
[Dr. Pechero]: Correct.
[King Fisher's counsel]: And so that's how you—that's one way that the
doctor doing the test can understand with some
greater degree of certainty whether the result of
the patient complaining about having pain was a
correct response, right?
[Dr. Pechero]: Correct.
Dr. Pechero agreed that no Marcaine challenge was performed on Barrios and that no
other test was performed to establish the accuracy of the discogram. When King Fisher's
counsel asked, "[The doctor performing the] discogram . . . relie[d] solely upon [Barrios]
stating that he was feeling and experiencing pain in a particular area after the injection?",
Dr. Pechero responded, "Correct."
A CT scan of Barrios's neck was taken after the discogram was performed.9 Dr.
9
Dr. Pechero explained that CT and CAT scans are "x-rays that are taken using the sam e way you
take conventional x-rays, but done at cross-sectional cuts, m uch thinner."
5
Pechero opined that the CT scan showed leakage of the dye in the middle neck in the C5-
C6 level discs. Dr. Pechero explained that the dye leaking out of the disc meant that there
was a tear. Dr. Pechero then performed surgery to remove the affected disc. Dr. Pechero
stated:
The disc is removed all the way toward the back. There's a space that is left
in. That's replaced with a bone of appropriate height and width. Once the
bone is placed in there, the plate is placed on front to secure the bone graft
and the plate is held with the screws.
Dr. Pechero testified that although the bone placed in Barrios's neck has not completely
healed, Barrios has no more pain and "[n]eurologically, the arm is back" with no weakness
or numbness.
On further cross-examination, Dr. Pechero clarified that although Barrios initially
complained of shoulder pain and physical therapy was prescribed, that injury "eventually
resolved itself" as early as April or June of 2005. Dr. Pechero answered "correct" to the
following questions asked by King Fisher's counsel: (1) "[T]here's a difference between
objective and subjective right?"; (2) "Subjective, you have to rely to a large extent upon that
which is told you by the patient, right?"; and (3) "Whereas objective is something in the
form of a diagnostic study that's not reliant upon the patient saying anything; it's there in
black and white?" Dr. Pechero also acknowledged that the June 1 MRI did not objectively
substantiate Barrios's subjective complaints of pain.
On cross-examination, Dr. Pechero testified that the bulge he saw on the June 1
MRI was a minimum to moderate bulge, that many people have minimal bulges at their C5-
C6 level, and that such bulges usually do not impinge upon the nerve roots. Dr. Pechero
clarified that although the bulge does not impinge on a nerve, the patient may still suffer
from radicular pain—that is, pain radiating down the arm. Dr. Pechero therefore opined
that the bulge in Barrios's disc, even if it did not directly impinge the nerve, could have still
caused radicular symptoms from other pathology, such as chemicals within the disc leaking
out, causing irritation to the nerve.
Dr. Pechero stated that it was possible that the injury he observed on the CT scan
6
could have occurred before the March 10 incident and that he relied on Barrios's
description of events to determine the cause of the injury. Dr. Pechero agreed that the CT
scan was the first objective diagnostic test that substantiated Barrios's complaints of pain.
Dr. Pechero testified he believed that Barrios had an annular tear with an intradiscal
dysfunction. Although Dr. Pechero stated that he observed the annular tear on the CT
scan, he stated that the intradiscal dysfunction was not seen on any of the tests performed
on Barrios. Dr. Pechero explained that an intradiscal dysfunction is diagnosed based on
clinical findings. King Fisher's counsel asked, "And by 'clinical findings' you're referring to
the patient's subjective complaints of pain and how he responds during examination,
right?", to which Dr. Pechero responded, "Correct."
Dr. Pechero recalled that an MRI had been performed on Barrios in April of 2005;
however, no report of the MRI was included in his records. After reviewing a report from
the doctor who performed the April 12 MRI, Dr. Pechero testified that the report stated it
was a "[n]ormal MRI of the cervical spine," and the report did not reference a bulge. Dr.
Pechero agreed with the report's findings that there was no bulge or abnormality shown on
the April 12 MRI.
Arnulfo R. Garza-Vale, M.D., a neurological surgeon, testified by videotape
deposition for King Fisher. Dr. Garza-Vale stated, "Neurosurgery is a subspecialty of
surgery that deals with the diagnosis and treatment of conditions of the brain and spine,"
including traumatic conditions, non-traumatic conditions, brain tumors, spinal tumors,
herniated discs in the neck and back, and the entire spinal column. According to Dr.
Garza-Vale, a person who has an injury to his or her spinal column can have symptoms
in other locations of the body "depending on what's affected. If it's a nerve, for example,
in the case of a herniated disc, you can have symptoms that radiate [down] the arm."
Dr. Garza-Vale performed an "independent medical examination" of Barrios on
January 31, 2006, and also reviewed the medical records and diagnostic studies performed
in this case. Dr. Garza-Vale stated that he reviewed an MRI of Barrios's left shoulder,
7
which he and the radiologist who performed the MRI concluded was normal. Dr. Garza-
Vale stated that the only thing he found objectively wrong with Barrios's left shoulder was
degenerative changes, which are caused by the course of time and the use of and wear
and tear of the shoulder. When Dr. Garza-Vale conducted his independent medical
examination of Barrios, Barrios indicated that he could not completely raise either his right
or left shoulders up—Barrios could only lift his left shoulder one hundred degrees and his
right shoulder about 120 degrees. However, Dr. Garza-Vale was unable to find anything
wrong with Barrios's left shoulder from the diagnostic studies that were performed.
Dr. Garza-Vale did not believe that Barrios's complaints of pain to his shoulder were
consistent with the March 11 incident. Dr. Garza-Vale explained that Barrios first
complained of shoulder pain after the February 11 incident when he injured his wrist.
Therefore, because Barrios had symptoms before the March 11 incident, Dr. Garza-Vale
was not convinced that Barrios was experiencing "referred" pain to the shoulder from the
neck. Dr. Garza-Vale testified that referred pain occurs, for example, when you have an
injury to your hand and the pain radiates from your hand to your neck or shoulder. Dr.
Garza-Vale did not believe that Barrios suffered any referred pain because "typically
referred pain is a neurological pattern" going from proximal to distal and does not usually
go from the distal to the proximal. Dr. Garza-Vale explained that
most nerves have a tendency to cause pain in the distal direction, away from
say the neck down the shoulder to the hand. But it's unusual to have pain
from the hand back to the neck. There are cases of that type of referred
pain, because nerves do have interconnections that go back and forth, but
the more typical pain is from proximal to distal.
Dr. Garza-Vale testified that the type of injury Dr. Pechero diagnosed Barrios with
is an annular tear with an intradiscal dysfunction. Dr. Garza-Vale explained that
means that the annulus, which is the ligament that covers the disc material
here (indicating), so it's a ligament that is 360 degrees around, and its sort
of like a cover, like a wrapping for the center portion of the disc called the
nucleus. So when you say that this round structure, the annulus, is broken,
now the central portion of the disc or the nucleus can come out and
compress cord or nerve root, but you have to have this tear of the annular
ligament.
According to Dr. Garza-Vale, Barrios did not suffer an annular tear and nothing was being
8
compressed. Dr. Garza-Vale stated,
This gentleman had numbness throughout the arm. He had weakness
throughout the arm. In fact, he gave very little effort in his examination. He
just really didn't do much of anything. And so there was really no clinical
exam that correlated with a herniated disc, an annular tear, compressed
nerve, none of those features that you normally see in a herniated disc
syndrome.
Dr. Garza-Vale testified that the clinical picture that he gathered from Barrios did not match
a diagnosis of an annular tear or a diagnosis requiring further treatment or surgery.10
Dr. Garza-Vale explained that Barrios complained of bilateral pain and not pain only
to the left arm, which does not correlate with herniated disc syndrome. Dr. Garza-Vale
stated that Barrios "gave minimal effort" during the exam and had a weak grip. Dr. Garza-
Vale testified that there was no reasonable explanation for Barrios's weak grip. According
to Dr. Garza-Vale, that raises a "big red flag" that Barrios was "putting on symptoms that
[were not] there." Dr. Garza-Vale said that Barrios would not raise his arms above
shoulder level and that meant Barrios was not giving any effort. Dr. Garza-Vale stated,
"This gentleman had—had—he was well muscled, let's put it that way. He did not have tiny
arms. And a fellow that's that well muscled that can't raise his arms up, that's pretty
remarkable." According to Dr. Garza-Vale, that symptom was inconsistent with a herniated
disc, and if Barrios had a problem at the C5 or C6 level, "he would have had comfort by
lifting his arms up."
Dr. Garza-Vale opined that if a patient had a problem with the C5-C6, over time, one
would see atrophy of the muscles—the biceps would become weaker and would shrink.
However, in Barrios's case, Dr. Garza-Vale observed that Barrios's right and left muscles
were identical and there was no atrophy. Dr. Garza-Vale believed this meant that the
nerves were working fine on both sides. Dr. Garza-Vale said that he tested Barrios's
reflexes, which "basically test[s] the same nerve not once but really three or four times" for
sensation, motor function, reflex function, and for "any signs that the nerve is—is
10
Dr. Garza-Vale stated that "[t]he clinical picture is set forth by the patient's subjective sym ptom s";
therefore, he relies on the patient's truthfulness.
9
compressed and you can't stretch that nerve." Dr. Garza-Vale stated that Barrios's reflexes
were normal, which did not correlate with Barrios's complaints of numbness, and the size
of his arm. On re-direct examination, Dr. Garza-Vale stated,
There was nothing that indicated a disruption of the annular ligament. On
the contrary, [Barrios] had pain only when he flexed his neck and not when
he extended his neck, which is just the opposite of—of a typical herniated
disc syndrome. They get pain going back, not forward. . . . He had initially
normal exams times two from his own treating doctor. And then suddenly,
all of a sudden he now has an abnormal exam. The doctor lists
abnormalities in certain muscle groups, but doesn't say if they're right side
or left side, doesn't say to what degree. We normally see weakness, for
example from zero to five. So if someone has weakness, you say four [over]
five, three over five, two over five or zero over five if they can't move at all.
But—but you specify, and then you put down it's left side or right side. He
just says there's weakness in the muscles blah, blah, blah, but doesn't say
where, which ones.
According to Dr. Garza-Vale, an annular tear is recognized by neurosurgeons as a
proper diagnosis; however, an annular tear can be seen in an MRI and will typically
correlate with appropriate clinical symptoms. Dr. Garza-Vale testified that the clinical
picture must correlate with the diagnostic studies and that a doctor must review them both.
Dr. Garza-Vale explained:
The reason you look at both is because they should correlate very closely.
If you have an annular tear, the annular tear typically will be lateralized to the
left or to the right. And so the patient should have symptoms therefore that
go to the left if the annular tear is on the left. If there's compression of nerve
on the left, you should therefore get symptoms on the left. And the
symptoms should go in the appropriate location, say C6 to the thumb, or at
least to the biceps area. It may not have to radiate all the way to—to the
thumb, but it should have very specific correlation.
Dr. Garza-Vale stated that he did not see an annular tear on the April 12 MRI
studies performed on Barrios. When asked what he found abnormal on the June 1 MRI
studies, Dr. Garza-Vale stated, "Nothing. There's the tiniest little bulge there. I would
admit it just bulges ever so slightly, but that's normal. Most people if you look at their MRIs
and look hard enough, you're going to see a bulge. . . . It's quite common to see a bulge
on normal asymptomatic people." Dr. Garza-Vale stated that he would not have performed
surgery on the bulge seen in the MRI. Dr. Garza-Vale opined that a doctor must be able
to separate a normal bulge from a pathologic abnormality. He stated, "The difference
10
between the two is you need to see nerve compression, not a tiny bulge. If you go after
that, you might as well start operating on everybody, just line them up."11
Dr. Garza-Vale explained the discogram procedure as follows:
A discogram is a study where a needle is positioned into the disc, usually
with the patient in—in a supine position. So, in other words, he's laying down
on a table. And you're basically putting your hands here (indicating[)], and
moving the trachea and esophagus to one side as you put a needle on the
opposite side. You're basically trying to get the esophagus out of the way,
so you're going at an angle. Once you have localized the needle in the
appropriate place or discs that you want to study, you then inject them with
an iodine containing material. And the idea is to see if—if the ligaments, the
annular ligaments that we say cover that central portion of the disc have a
tear and produce a leak. So you'll see the dye go through the annular tear
and typically go again to one side or the other, but not centrally.
...
You sometimes can get the dye to trail where you had the needle and so
you'll—you'll get dye to come out, but its coming anterior (indicating), this
way, instead of posterior. The tears we are looking for are posterior.
...
You're injecting an iodine-containing material into the disc space under
pressure and then seeing does the patient get reproduction of symptoms, for
example, does he get relief of symptoms if you inject an anesthetic there,
and do you get extravasation of dye where the dye has come out through a
tear such that it lateralizes to the right or to the left consistent with the clinical
symptoms, left arm pain, right arm pain.
...
In a normal discogram . . . . [t]he—the liquid would be contained just
centrally. It tends to get near the edge however, the posterior edge.
Depending on your age, it tends to get closer and closer to the posterior
edge because the annulus is thinnest on the back wall.
Dr. Garza-Vale testified that the North American Spine Association stated in its
journal that it did not recommend cervical discograms such as the one performed on
Barrios. That association only recommended lumbar discograms. But in either case, it
recommended against a discogram if the patient had a normal MRI. Dr. Garza-Vale
explained:
11
On cross-exam ination, Dr. Garza-Vale agreed that som e annular tears would not be seen on the
MRIs taken in this case because of the quality of the im age.
11
The difference [between a lumbar discogram and a cervical discogram] is
that you really don't have a spinal cord down in the lower end of the spinal
canal, so it's a lot safer to do a [lumbar] discogram. If it leaks, it leaks. It's
not going—going to harm the spinal cord. There is no spinal cord there. But
in the neck you have some very important venous structures that can
connect the disc to the venous circulation of the cord, and hence, you can
get the dye—if you inject it hard enough, you can get it into the cord. And
when you do that, you damage the cord.
Dr. Garza-Vale testified that he would never have recommended a cervical discogram for
Barrios.
Dr. Garza-Vale believed the discogram has several problems. First, there are many
false positive and negative results; and therefore, it is not a very reliable test. "The
discogram is reliant upon, first of all, the patient telling you, yes, I feel pain. Well,
sometimes you have a patient say ouch at every level. Sometimes he'll say, well, I don't
feel anything. So it just—there's too much variability and too little reproducibility to make
it a truly objective examination." Next, typically, as people age, discs become more porous
and leak, and that leak, according to Dr. Garza-Vale, means nothing. According to Dr.
Garza-Vale, a Marcaine Challenge may be performed to increase a discogram's reliability.
It is
a local anesthetic that is used, first of all, to determine if the patient says, oh,
that reproduced my symptoms when you inject [the dye] and put pressure on
that annulus by pushing on that syringe. You then take that syringe out,
change it and put in Marcaine, which is a local anesthetic, and should reduce
the pain from the annular tear when you inject the anesthetic. And the
patient would say, my pain is gone; I feel much better. It's a confirmation
that that is an abnormal disc and that it is the appropriate location of the
source of that person's pain.
Dr. Garza-Vale opined that if the patient continues to complain of pain, then the pain is not
in that location, the pain is from another source, or it is psychogenic. The fact that a
Marcaine challenge was not performed when Barrios had his discogram caused Dr. Garza-
Vale to believe that the discogram's reliability and objectivity were reduced.
Dr. Garza-Vale testified that he did not see any evidence of an annular tear on the
CT scan performed on Barrios after the discogram. Dr. Garza-Vale stated, "What I see is
the dye comes close in contact or is central where the annulus is the thinnest. And so you
12
see a little knuckle of dye go right up to the edge centrally . . . . [Y]ou can see a little
knuckle of dye go right up to the edge and stay there. It doesn't come out, so its not
extruded." According to Dr. Garza-Vale, the CT scan showed a normal annular bulge just
as the MRI had shown and the dye was not coming through the ligament, but "staying right
at the edge of the ligament." When asked if there was anything on the CT scan that
suggested that Barrios had an annular tear, Dr. Garza-Vale replied, "Nothing." Dr. Garza-
Vale also stated that the first MRI and second MRIs, and the discogram all looked normal
to him.
III. STANDARD OF REVIEW AND APPLICABLE LAW
In considering the factual sufficiency of the evidence where as here, "only one
category of damages is challenged on the basis that the award in that category was zero
or was too low, a court should consider only whether the evidence unique to that category
is so against the great weight and preponderance of the evidence as to be manifestly
unjust, shock the conscience, or clearly demonstrate bias."12 We review the entire record
and consider evidence both favorable and contrary to the verdict to determine whether the
jury's negative finding is against the great weight and preponderance of the evidence.13
To reverse a judgment due to factually insufficient evidence, we must
detail the evidence relevant to the issue in consideration and clearly state
why the jury's finding is factually insufficient or is so against the great weight
and preponderance as to be manifestly unjust; why it shocks the conscience;
or clearly demonstrates bias. Further, [we], in [our] opinions, should state in
what regard the contrary evidence greatly outweighs the evidence in support
of the verdict.[14]
IV. DISCUSSION
Barrios contends the jury's finding of zero damages for pain and suffering is against
the great weight and preponderance of the evidence. Barrios argues that the jury was not
12
Golden Eagle Archery, Inc. v. Jackson, 116 S.W .3d 757, 775 (Tex. 2003).
13
Monroe v. Grider, 884 S.W .2d 811, 820 (Tex. App.–Dallas 1994, writ denied).
14
Pool v. Ford Motor Co., 715 S.W .2d 629, 635 (Tex. 1986).
13
"free to disregard pain and suffering" because there was evidence that he sustained
objective injuries of a fractured wrist and "severe annular tears to a cervical disc." Although
Barrios points to evidence that he fractured his wrist, the jury was not asked to determine
damages based on that incident and was only asked to determine whether he sustained
damages from the March 11 incident wherein he allegedly sustained the neck injury.15
Barrios alleges that the evidence, including his medical records, substantiate an
objective injury. Dr. Pechero and Dr. Garza-Vale both relied on Barrios's description of his
symptoms, two MRI studies, a discogram, and a CT scan to formulate their opinions
regarding Barrios's injury.
The first MRI taken on April 12 was normal, according to Dr. Garza-Vale. Dr.
Pechero testified that the doctor who performed the MRI reported that it was a "[n]ormal
MRI of the cervical spine." Dr. Pechero acknowledged that the April 12 MRI did not show
a bulge or any other abnormality. Although Dr. Pechero found a bulge on the June 1 MRI,
he agreed that it was possible that the bulge could have occurred before or after the March
10 incident. Dr. Pechero stated that he based his opinion on when the injury occurred on
the information provided by Barrios. Dr. Garza-Vale admitted that there was a small bulge
visible on the June 1 MRI, but he asserted that it was normal to see those types of bulges
on MRIs, even in asymptomatic individuals.
Dr. Garza-Vale opined that one would see an annular tear in an MRI. However, no
evidence was presented that the annular tear could be observed on the MRIs taken of
Barrios's neck. Dr. Pechero testified that he could not "tell" whether Barrios had an annular
tear from the June 1 MRI and as stated above, found that the April MRI was normal. When
asked whether the bulge he observed on the June 1 MRI was what led him to order the
15
Outside the presence of the jury, at a charge conference with the trial court, Barrios's counsel
stated, "The plaintiff is not going to subm it a separate or any question with regard to the first accident."
Question num ber one in the charge asked, "Did the negligence as defined above under the Jones Act, if any,
of those nam ed below cause the incident of March 2005?" The jury was instructed to determ ine the am ount
of dam ages if it "answered Question No. 1 . . . 'Yes' for King Fisher Marine, L.P." Specifically, the jury was
asked to award dam ages, if any, for past and future pain and m ental anguish. W e note that throughout his
brief, appellant refers to the dam ages he com plains of as "pain and suffering."
14
discogram, Dr. Pechero responded, "I think it was more the persistent pain that he had that
kind of led me to continue to work him up to see what was really causing his discomfort."
Dr. Pechero believed that he would have performed the discogram based on the clinical
findings alone, even if he had not seen the bulge on the MRI.
Barrios asserts that the discogram confirmed that he had an annular tear and that
it provided objective results that "could not be faked by subjective complaints of pain."
However, Dr. Pechero agreed that when performing a discogram, the doctor relies on the
patient's complaints of pain and that the doctor who performed the discogram on Barrios
relied solely on Barrios's statements that he felt pain in a particular area after the injection.
Dr. Garza-Vale testified that the discogram is highly unreliable because the test is based
on what a patient tells the physician regarding the pain he is experiencing; therefore, it is
not a truly objective examination. Dr. Garza-Vale opined that because a discogram is
based on subjective complaints of pain and is unreliable, doctors can perform a Marcaine
Challenge or pressure testing to confirm the patient's complaints of pain. However, no
such testing was performed to confirm Barrios's complaints that he felt pain during the
discogram.
Dr. Pechero stated that the CT scan was the first objective diagnostic test that
substantiated Barrios's complaints of pain due to an annular tear—a test Dr. Garza-Vale
testified contained no evidence of an annular tear.16 Although Dr. Pechero stated that the
CT scan was objective evidence of the annular tear, Dr. Garza-Vale disputed that
conclusion. The remaining evidence of Barrios's pain was of a subjective nature.17
Barrios argues that he "testified directly as to the pain he had experienced"18 and
16
Dr. Pechero testified that the intradiscal dysfunction could not be observed on the CT scan and
usually is visible on MRIs; however, no evidence was presented that the MRIs taken showed an intradiscal
dysfunction.
17
Barrios's m other, father, and wife each testified that Barrios was still experiencing pain after his
neck surgery.
18
W e note that on direct exam ination, Barrios did not describe the pain he has experienced as a result
of the alleged injury. The only reference to pain m ade by Barrios is when he stated that he was hurting after
the fall because he hit his head, arm , shoulder, and entire left side.
15
the fact that the surgery relieved his complaints of pain bolsters the existence of an annular
tear. However, Dr. Garza-Vale testified that Barrios was "putting on symptoms that [were
not] there." In addition, Dr. Garza-Vale stated that the clinical symptoms that Barrios
described did not correlate with an annular tear. Dr. Pechero testified that after the
surgery, Barrios's neck pain was gone and Barrios felt "good." Dr. Pechero stated that
neurologically, Barrios's "arm [was] back" and his weakness and numbness were gone.
However, Barrios testified on cross-examination that he feels "bad" and when asked if Dr.
Pechero was "wrong" when he stated Barrios was "pain free," Barrios replied, "Yes."
"To uphold a jury's finding that an injured party incurred no damages for past pain
and suffering, the jury must have found by a preponderance of the evidence that no pain
and suffering accompanied the injury."19 The jury is the sole judge of the credibility of the
witnesses and the weight to be given their testimony; therefore, "an appellate court must
give deference to a jury's decision regarding what weight to give contradictory testimonial
evidence because the decision is most likely based on an evaluation of credibility and
demeanor, which the jury is in the better position to judge."20 Here, the jury was free to
believe or disbelieve Barrios's subjective complaints of pain as well as the testimony of any
other witness, including Dr. Pechero—who, in this case, primarily relied on what Barrios
told him.21 We accept and will not interfere with the jury's resolution of any conflicts or
inconsistencies in the evidence in determining the sufficiency of the evidence.22
A jury finding that the plaintiff suffered no past pain and suffering is against the great
19
Lamb v. Franklin, 976 S.W .2d 339, 341 (Tex. App.–Am arillo 1998, no pet.).
20
Lancon v. State, 253 S.W .3d 699, 706 (Tex. Crim . App. 2008).
21
See W alker v. Ricks, 101 S.W .3d 740, 748 (Tex. App.–Corpus Christi, 2003, no pet.) (providing that
a jury m ay "disbelieve a witness, including a physician, even though his testim ony is not contradicted"); W altrip
v. Bilbon Corp., 38 S.W .3d 873, 882 (Tex. App.–Beaum ont 2001, pet. denied) ("The judgm ents and inferences
of experts or skilled witnesses, even when uncontroverted, are not conclusive on the jury or trier of fact, unless
the subject is one for experts or skilled witnesses alone, where the jury or court cannot properly be assum ed
to have or be able to form correct opinions of their own based upon evidence as a whole and aided by their
own experience and knowledge of the subject of inquiry. W e believe that the presence or absence of pain,
based on the subjective com plaints of an individual, is not a subject for experts or skilled witnesses alone.")
(internal citations om itted).
22
See W alker , 101 S.W .3d at 750.
16
and preponderance of the evidence when there is uncontroverted evidence of an objective
injury.23 However, in this case, evidence that Barrios suffered an objective injury—an
annular tear—was controverted by Dr. Garza-Vale's testimony that the CT scan was
normal, and the remaining evidence of Barrios's damages for physical pain were entirely
subjective—that is, based on Barrios's complaints of pain to Dr. Pechero and others.24
Therefore, after reviewing all of the evidence, we cannot conclude that the evidence
supporting the jury's finding of zero damages for physical pain is against the great weight
and preponderance of the evidence.25 We overrule Barrios's sole issue.
IV. CONCLUSION
We affirm.
LINDA REYNA YAÑEZ,
Justice
Delivered and filed the
27th day of May, 2010.
23
Monroe, 884 S.W .2d at 820 (citing Hammett v. Zimmerman, 804 S.W .2d 663, 664-65 (Tex.
App.–Fort W orth 1991, no writ)).
24
See Golden Eagle Archery, Inc., 116 S.W .3d at 775 (explaining and approving the court's
conclusion in Monroe that the "jury could not ignore uncontroverted evidence of injury in denying recovery for
past physical pain"); see also Luna v. Torres, No. 13-07-00471-CV, 2009 Tex. App. LEXIS 6972, at *12 (Tex.
App.–Corpus Christi Aug. 31, 2009, no pet.) (m em . op.) ("A jury m ay award 'zero dam ages' when the injuries
sustained are subjective in nature or there is both subjective and objective evidence of dam ages."); Biggs v.
GSC Enters., Inc., 8 S.W .3d 765, 768-69 (Tex. App.–Fort W orth 1999, no pet.) (stating that "[a]ppellate courts
are reluctant to overturn jury findings of no dam ages for pain and suffering when the indicia of injury and
dam ages are m ore subjective than objective").
25
See Monroe, 884 S.W .2d at 820.
17