Ten Hagen Excavating, Inc. v. Jose Castro-Lopez and Lorena Castro

AFFIRM; and Opinion Filed August 29, 2016.

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00902-CV

TEN HAGEN EXCAVATING, INC., Appellant
V.
JOSE CASTRO-LOPEZ AND LORENA CASTRO, Appellees

On Appeal from the County Court at Law No. 1
Dallas County, Texas
Trial Court Cause No. CC-11-00454-A

OPINION
Before Justices Francis, Lang-Miers, and Myers
Opinion by Justice Lang-Miers
This is a personal injury case arising from a traffic accident. Appellees Jose Castro-

Lopez and his daughter Lorena Castro (the Castros) were two of the plaintiffs and appellant Ten

Hagen Excavating, Inc. was one of two defendants. After a week-long jury trial in which

liability and damages were contested, both issues were resolved against Ten Hagen. In short,

Ten Hagen was found vicariously liable for the negligence of the driver who caused the accident

(the other defendant). The jury also found that the Castros each suffered certain categories of

compensable damages as a result of the accident, including past physical pain and mental

anguish, and past medical care expenses. Based on the jury’s verdict, the trial court rendered

judgment against Ten Hagen and the driver, jointly and severally, and ordered them to pay the

Castros a total of $916,262.35.
 Stated succinctly, Ten Hagen argues on appeal that the judgment should be reversed and

a take-nothing judgment should be rendered in its favor for three independent reasons. First, Ten

Hagen argues that it is not vicariously liable for the driver’s negligence because, contrary to the

trial court’s partial directed verdict, Ten Hagen was not the driver’s “statutory employer” under

applicable safety regulations. Second, Ten Hagen argues that even if it was the driver’s

employer, it did not owe a legal duty to the Castros because the driver was not acting in the

scope of his employment at the time of the accident. Third, Ten Hagen argues that objective

physical evidence proves that the driver’s negligence did not cause the accident.

In the alternative, Ten Hagen argues that we should reverse the judgment in part and

render a reduced judgment because the evidence is legally insufficient to support the findings as

to Lorena Castro’s damages. And as a final alternative, Ten Hagen argues that we should reverse

the judgment and remand this case for a new trial because the trial court erred by excluding the

testimony of its rebuttal medical expert concerning the reasonableness and necessity of the

Castros’ past medical expenses.

We resolve these issues against Ten Hagen and affirm the trial court’s judgment. 1

BACKGROUND

The Accident 2

The traffic accident giving rise to this case happened on Interstate 30 around 2 p.m. on

November 11, 2010. The accident drew media attention because it caused a pileup that shut

down traffic in both directions on the Trinity River Bridge just west of downtown Dallas:

1
Ten Hagen also raises another alternative argument that we should reverse and remand for a new trial if we conclude that the issue of
whether it was a statutory or common law employer presented a fact question. Because of our disposition of the first issue, we do not need to
address this alternative argument.
2
The accident-related photographs were introduced into evidence during trial by Ten Hagen as part of a 238-page compendium exhibit of
photographs marked as Defendant’s Exhibit 479.

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 The Dallas County Sheriff’s Department investigated the accident and concluded that it

was caused by Buddy Lloyd Ross II—the driver of this 18-wheeler (a tractor pulling an open

round-bottom trailer, with Ten Hagen’s name and motor carrier number on it):

There was conflicting testimony about the accident (as described in detail below). But it

is undisputed that the accident began when the 18-wheeler and a cement truck somehow collided

while traveling in the westbound lanes of Interstate 30. After they collided, both vehicles veered

left toward the center guard rail. The cement truck crossed over the guard rail, rolled onto its

side, and landed in the left eastbound lane, hitting other vehicles—including the Castros’ vehicle.

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The cement truck’s barrel detached and rolled into the center eastbound lane. The front of the

18-wheeler also crossed over the guard rail and landed partially in the left eastbound lane.

The Castros’ Claims

The Castros intervened as additional plaintiffs in a lawsuit filed against Ross and Ten

Hagen by multiple other plaintiffs, including the cement truck driver. In their third and final

amended petition in intervention, the Castros alleged that Ross’s negligence caused the accident,

and that Ten Hagen was vicariously liable for Ross’s negligence because Ten Hagen was Ross’s

employer under common law or statutory law (namely, “Federal Motor Carrier Safety

Regulations and the Texas Transportation Code”) and because Ross was acting in the course and

scope of his employment at the time of the accident. The Castros also asserted a claim for gross

negligence against Ross and Ten Hagen, and claims against Ten Hagen for negligent hiring,

negligent retention, negligent entrustment, and negligent supervision.

The Trial

The Castros’ claims against Ross and Ten Hagen were tried to a jury along with the

claims of Carlos Martinez, the cement truck driver. Lorena sought damages for past physical

pain and mental anguish and past medical expenses. Jose sought damages for past and future

physical pain and mental anguish, past and future loss of earning capacity, past and future

disfigurement, past and future physical impairment, and past and future medical expenses. Ross

did not appear at trial and Ten Hagen alone defended against the Castros’ claims.

Several facts were undisputed at trial. For example, as to the 18-wheeler bearing Ten

Hagen’s name and motor carrier number, it was undisputed that Ross owned the tractor and Ten

Hagen owned the trailer. In addition, although it is unclear who added them and exactly when

they were added, it was also undisputed that, before the accident, Ten Hagen knew its name and

motor carrier number were on the tractor.

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 The disputed issues at trial included whether, under common law, Ross’s employment

relationship with Ten Hagen was more in the nature of an employee or an independent

contractor. In addition, Ten Hagen also disputed the Castros’ evidence that Ross was acting in

the scope of his employment at the time of the accident; that Ross caused the accident; and that

the accident proximately caused the damages alleged by the Castros. Ten Hagen attempted to

dispute whether the Castros’ past medical expenses were reasonable and necessary, but the trial

court excluded the testimony of Ten Hagen’s expert on this issue because the court had

previously granted a motion to strike the expert’s pretrial affidavits on the same issue.

The plaintiffs each testified about the accident and their injuries. In addition, they

presented testimony from nine other witnesses before resting their case. Six witnesses testified

in person: (1) Ten Hagen’s president, (2) the deputy sheriff who investigated the accident, (3) the

passenger in the cement truck, (4) a vocational rehabilitation expert, (5) an orthopedic surgeon,

and (6) an expert on the issue of motor carriers and the safety regulations that apply to them.

The plaintiffs also offered into evidence deposition testimony from Ross and two other

eyewitnesses.

After the plaintiffs rested their case, Ten Hagen presented testimony from five witnesses.

Four witnesses testified in person: (1) Ten Hagen’s president, (2) the Ten Hagen employee who

gave Ross Ten Hagen stickers to put on his tractor, (3) an accident-reconstruction expert, and

(4) a rebuttal vocational rehabilitation expert. Ten Hagen also offered into evidence deposition

testimony from a rebuttal medical expert on the issue of whether the plaintiffs’ alleged injuries

were caused by the accident.

After both sides rested, Ten Hagen and the Castros made cross-motions for directed

verdicts on an issue related to Ten Hagen’s vicarious liability for Ross’s alleged negligence.

More specifically, focusing on the arrangement between Ten Hagen and Ross, and relying on

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factors set forth in Sharpless v. Sim, 209 S.W.3d 825 (Tex. App.—Dallas 2006, pet. denied), and

Martinez v. Hays Construction, Inc., 355 S.W.3d 170 (Tex. App.—Houston [1st Dist.] 2011, no

pet.), the Castros argued that for purposes of motor carrier liability under federal and state safety

regulations, Ten Hagen was deemed to be Ross’s “statutory employer” (i.e., deemed to be the

motor carrier that operated the 18-wheeler) as a matter of law. In response, Ten Hagen argued

that Sharpless and Martinez did not apply. Ten Hagen argued that under applicable safety

regulations, a motor carrier has to be “acting as a motor carrier in order to be in the position of a

statutory employer,” and at the time of the accident it was instead in the position of a

“shipper”—like someone who “hire[s] FedEx to ship something for us.” Based on this

argument, Ten Hagen moved for a directed verdict on the “whole case” on several grounds,

including on the ground that it was “acting as a shipper, and a shipper has no duty to comply

with the Federal Motor Carrier Safety Regulations or the Texas Motor Carrier Safety

Regulations.”

The trial court granted the Castros’ motion and agreed to include the following

instruction in the jury charge:

“Statutory Employer/Employee”

You are instructed that, at the time of the collision in question, Buddy Lloyd Ross
II was a statutory employee of Ten Hagen Excavating, Inc., and Ten Hagen
Excavating, Inc. was Buddy Lloyd Ross II’s statutory employer under the Federal
and Texas Motor Carrier Safety Regulations as a matter of law.

As a result of this instruction, the Castros agreed to “withdraw any request for a common

law employee instruction, definition, or charge.” Before the case was submitted to the jury, the

plaintiffs also withdrew most of their claims except for the negligence claim against Ross and the

related issue of Ten Hagen’s vicarious liability for Ross’s negligence.

Six questions were submitted to the jury: whether “the negligence, if any” of Ross and/or

Martinez proximately caused the accident; the percentages of responsibility attributable to Ross
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and Martinez (if the jury concluded that both were at fault); whether Ross was “acting in the

scope of his employment” at the time of the accident; and the amount of each plaintiff’s

damages. The jury rendered a unanimous verdict in response to these questions. The jury found

that Ross’s negligence was the sole proximate cause of the accident 3 and that Ross was acting in

the scope of his employment at the time. The jury awarded Jose a total of $658,959.38 in

damages. And the jury awarded Lorena a total of $160,911.13 in damages—$150,000 for past

physical pain and mental anguish, and $10,911.13 for past medical expenses.

After the jury’s verdict, the trial court severed the claims of other plaintiffs, including

Martinez. As to the Castros’ claims, the trial court rendered judgment on the jury’s verdict

against Ten Hagen and Ross, jointly and severally, for a total of $916,262.35 (which includes the

Castros’ damages, prejudgment interest on actual damages, and court costs), plus post-judgment

interest. Ten Hagen filed a motion for judgment notwithstanding the verdict on the issue of

whether Ross was a statutory employee. The motion was overruled by operation of law.

STATUTORY EMPLOYMENT ISSUE

In its first issue Ten Hagen argues that it cannot be vicariously liable for Ross’s

negligence (i.e., that it owed no duty to the Castros) because it was not Ross’s statutory employer

under Texas Motor Carrier Safety Regulations. 4 In other words, Ten Hagen challenges the trial

court’s decisions to deny Ten Hagen’s motion for directed verdict, grant the Castros’ motion for

partial directed verdict, and instruct the jury that Ten Hagen was Ross’s statutory employer.

3
Although the jury was instructed not to answer the question concerning percentages of responsibility unless they found that both Ross and
Martinez caused the accident, the jury nevertheless answered that question and attributed 100% of the responsibility to Ross and 0% to Martinez.
4
The Texas Supreme Court recently clarified that Federal Motor Carrier Safety Regulations apply only in cases involving the transportation
of property across state lines. See Gonzalez v. Ramirez, 463 S.W.3d 499, 502–03 (Tex. 2015) (per curiam). Because there is no evidence in this
case of transportation across state lines, we apply Texas regulations.

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 Standard of Review

In analyzing a directed verdict, we apply the same standard of review applicable to

summary judgments. See AVCO Corp. v. Interstate Sw., Ltd., 251 S.W.3d 632, 667 (Tex.

App.—Houston [14th Dist.] 2007, pet. denied) (citing City of Keller v. Wilson, 168 S.W.3d 802,

823 (Tex. 2005)). When both sides move for summary judgment as a matter of law and the trial

court grants one motion and denies the other, we review all of the evidence and render the

decision that the trial court should have rendered. See FM Props. Operating Co. v. City of

Austin, 22 S.W.3d 868, 872 (Tex. 2000).

Applicable Law

Motor carrier safety regulations are designed to protect the public from the risks

associated with the operation of commercial motor vehicles. 5 Among other things, motor carrier

safety regulations ensure that a commercial motor vehicle is safely maintained and operated,

prevent confusion about which party bears ultimate financial responsibility in the event of an

accident, and ensure that injured parties are compensated. 6 For example, in Texas:

• a commercial motor vehicle and its driver must meet certain safety
standards; 7

5
In a case involving interstate commerce and certain federal regulations, for example, our sister court explained that the regulations were
designed to protect against attempts by motor carriers to shield themselves from liability for negligent drivers:
During the first half of the twentieth century, interstate motor carriers attempted to immunize themselves from liability for
negligent drivers by leasing trucks and nominally classifying the drivers who operated the trucks as “independent
contractors.” In order to protect the public from the tortious conduct of the often judgment-proof truck-lessor operators,
Congress in 1956 amended the Interstate Common Carrier Act to require interstate motor carriers to assume full direction
and control of the vehicles that they leased “as if they were the owners of such vehicles.” The purpose of the amendments
to the Act was to ensure that interstate motor carriers would be fully responsible for the maintenance and operation of the
leased equipment and the supervision of the borrowed drivers, thereby protecting the public from accidents, preventing
public confusion about who was financially responsible if accidents occurred, and providing financially responsible
defendants.
Morris v. JTM Materials, Inc., 78 S.W.3d 28, 37–38 (Tex. App.—Fort Worth 2002, no pet.) (emphasis added).
6
See generally id.; 37 TEX. ADMIN. CODE § 4.11(a).
7
See generally 37 TEX. ADMIN. CODE § 4.11(a) (incorporating by reference numerous Federal Motor Carrier Safety Regulations), see also
49 C.F.R. §§ 391.13, 392.1, 393.1, 396.1; TEX. TRANSP. CODE ANN. §§ 644.001–.252; 647.001–.019.

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 • each side of the power unit must display the name of the owner or operator
and show the motor carrier registration number; 8 and

• the owner or operator has to carry at least a certain amount of liability
insurance. 9

Under Texas Motor Carrier Safety Regulations, when a negligent driver of a commercial

motor vehicle causes an accident, ultimate financial responsibility lies with the party determined

to be the “motor carrier” at the time of the accident. See generally Gonzalez v. Ramirez, 463

S.W.3d 499, 502–03 (Tex. 2015) (per curiam) (“The Texas Regulations apply to ‘commercial

motor vehicles’ and hold ‘motor carriers’ responsible for their ‘employees.’”). As a result,

courts and parties sometimes use the term “statutory employer” when referring to the motor

carrier. See, e.g., id. at 503. Under Texas safety regulations, a “motor carrier” is the individual

or entity “that controls, operates, or directs the operation of one or more vehicles that transport

persons or cargo over a road or highway in this state.” TEX. TRANSP. CODE ANN. § 641.001

(West 2011). In determining whether a particular defendant is deemed to be the “motor carrier”

with respect to a particular accident, the fact that the defendant is generally authorized to operate

as a motor carrier is irrelevant. See Gonzalez, 463 S.W.3d at 504. Instead, we focus on the facts

of the specific transaction at issue. Id.

Additional Background Facts

Ten Hagen’s president, Scott Ten Hagen, testified that his company does “on-site

excavation” at construction sites. That work frequently requires Ten Hagen to add and remove

dirt and other materials. To move those materials, Ten Hagen hires independent contractors,

including Ross. The other independent contractors that Ten Hagen uses are bigger companies—

Dirt Trucking, DFW Aggregates, Cowboy Trucking, and Alliance Trucking. When Ross hauled

8
See TEX. TRANSP. CODE ANN. § 642.002(a).
9
See id. § 643.101.

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for Ten Hagen, Ross drove his own tractor and used a Ten Hagen trailer. When possible, Ten

Hagen preferred to use Ross because it was more convenient and less expensive. 10 Ross worked

exclusively for Ten Hagen from 2004 until this accident in 2010.

Three witnesses testified about the circumstances surrounding the fact that Ten Hagen’s

name and motor carrier number were on the side of Ross’s tractor at the time of the accident.

Although their testimony was somewhat conflicting as to certain details, it is undisputed that Ten

Hagen knew that the 18-wheeler was impounded approximately two months before the accident

because it did not properly identify the owner or operator, and after that Ten Hagen gave Ross

stickers to put on the tractor. 11

10
According to Scott, Ten Hagen paid other independent contractors $70 per hour but paid Ross a “discounted hourly rate” of $50 per hour
in exchange for his use of Ten Hagen’s trailer. In addition, by hiring Ross, Ten Hagen skipped the middleman and dealt directly with the driver:
The bigger companies are a little more inconvenient. You have to go through a salesman. And then you have to go—and
then you got to go through dispatch. Then dispatch has to do a—dispatch a truck, and you may get a different truck every
day. So sometimes it’s more convenient to deal with a guy with one or two trucks. But, of course, he can’t handle a job
that may need a thousand, you know, loads of dirt on it.
...

Well, the little guy, you’re—you’re dealing with the owner, the driver, the guy that does the billing, you know. So it’s
more one on one so you can have him pick up odd loads more—wow, I don’t know what I’m trying—like a special load if
you just need one load where it’s way more inconvenient to call Alliance and—and you got to get a quote. You’ve got to
do a bunch of paperwork before that truck can be dispatched to go get one load.

11
Ross testified that he was hauling a load for Ten Hagen in August 2010 when he “got pulled over for no tarp.” The deputy sheriff told
Ross that the truck was being impounded because it “had to have signs on it and all that stuff.” In other words, the truck “had to have a motor
carrier’s identification.” Scott went to where the truck was impounded, and after that, the truck was towed to Ten Hagen’s yard and a Ten Hagen
mechanic added Ten Hagen’s name. Ross testified that he did not recall exactly when Ten Hagen’s motor carrier number was added, but he knew
he did not put it on the truck.
Scott testified that Ten Hagen’s name was on the truck “for some time.” With respect to the motor carrier number, he testified that he
knew the number was on there but Ross was supposed to remove it and “[e]vidently he failed to.” Scott acknowledged that the name and motor
carrier number indicated that Ten Hagen was operating the 18-wheeler:
Q. Now, the MCR number identifies for the highway patrol and other authorities whose authority the
truck is operating under, correct?
A. Correct.
Q. So with your number on that truck on the day of the collision, that’s telling the authorities, at least,
that that truck is operating under your authority, correct?
A. I would say so.
...
Q. Well, you certainly saw the logo on the side of the truck?
A. Well, the logo had been on the truck for a while. I didn’t have a problem with that one.
Q. So—and to the world he’s saying this is a Ten Hagen Excavating truck?
A. I would say, yes.
Finally, Andy Bolton, Ten Hagen’s mechanic, testified that he gave Ross one sticker for each side of his truck. But according to Bolton,
Ross applied the stickers himself.

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 Analysis

Ten Hagen argues that the material facts in this case establish that it was not a motor

carrier as a matter of law. To support its argument Ten Hagen primarily relies on Gonzalez and

Harris v. Velichkov, 860 F. Supp. 2d 970 (D. Neb. 2012).

First, Ten Hagen contends that the supreme court’s “recent decision in Gonzalez

mandates the conclusion that Ten Hagen is not a motor carrier and therefore is not Ross’s

statutory employer.” Ten Hagen acknowledges that the Texas Motor Carrier Safety Regulations

“create a ‘statutory employment’ relationship in which a motor carrier is deemed to be liable for

the negligence of its ‘statutory employees’” and that a statutory employee “may include

individuals who would be characterized as ‘independent contractors’ at common law.” But it

contends that to be a motor carrier the defendant had to exercise control over “the actual

transportation of the property” and there was no evidence of that control here because Ten

Hagen:

• contracted with independent contractors (like Ross) on an as-needed basis
to transport loads; and

• controlled only the loading site and identified delivery locations for the
hauls;

but

• did not control which driver operated a particular truck or what route the
drivers took; and

• was not responsible for providing the hauling permit under which the
drivers (like Ross) operated.

Ten Hagen argues that these “controlling factors” prove that it “was not a motor carrier as a

matter of law.” We disagree.

In Gonzalez, the defendant, Cuahutemoc (“Tim”) Gonzalez, was hired by a farm to

harvest the farm’s silage and haul it to a feed yard. Gonzalez, 463 S.W.3d at 501. Gonzalez did

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the harvesting, but hired other companies to transport the silage to the feed yard. Id. One of

those companies was 3R/Garcia Trucking, which, in turn, hired drivers, including Raymond

Ramirez, to haul the silage to the feed yard. Id. As Ramirez was hauling his load to the feed

yard, a tire on his truck blew out. He lost control of the vehicle and struck and killed two people

in another vehicle. Id. A representative of the estate of one of the deceased individuals sued

Gonzalez seeking to “hold him vicariously liable for the actions of Garcia and Ramirez based on

Gonzalez’s alleged status as a motor carrier.” Id. The trial court granted no-evidence summary

judgment in favor of Gonzalez, and the plaintiff appealed. A divided court of appeals reversed,

concluding that “fact issues exist as to Gonzalez’s status as a motor carrier and employer under

the Texas Regulations.” Id. at 503. Gonzalez appealed to the supreme court, which examined

the facts surrounding the accident and concluded that Gonzalez was not a motor carrier at the

time of the accident. Id. at 504. The court looked at “the facts that directly implicated control of

the actual transportation of the property” and concluded they were absent. Id. at 505 (“In

analyzing whether a defendant is a motor carrier, we focus on the specific transaction at issue.”).

Second, Ten Hagen relies on Harris, which the Gonzalez court described as “instructive.”

See Gonzalez, 463 S.W.3d at 505 (“Although the district court in [Harris] analyzed motor-carrier

status under Federal Regulations, we find the reasoning in that case instructive.”). In Harris,

FedEx hired a “power-only” contractor (i.e., a company that provided “a driver with a tractor”)

to haul FedEx trailers to a service center. Harris, 860 F. Supp. 2d at 973–74. After the driver

caused an accident that injured his passenger and killed a driver of an oncoming vehicle, the

passenger and the deceased driver’s family sued FedEx, arguing that the driver’s negligence was

imputed to FedEx under Federal Motor Carrier Safety Regulations based on its status as a

registered motor carrier. Id. at 975, 977. FedEx moved for summary judgment on the ground

that there were “no facts supporting imputation of [the driver’s] alleged negligence to FedEx.”

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Id. at 976. The district court agreed. The court explained that a defendant’s authority to operate

as a motor carrier is irrelevant for purposes of determining whether it bears ultimate financial

responsibility in a particular case. Id. at 979. What is relevant is whether the defendant was

acting as a motor carrier in the transaction at issue. Id. And in that case, FedEx was acting as a

shipper, not a motor carrier. Id.

In Gonzalez, the supreme court stated that the plaintiff in the Harris case was attempting

to “‘bootstrap’ FedEx into ‘motor carrier’ status by stretching the regulatory language,” when it

was the “power-only” contractor that assumed the role of motor carrier under those facts. 463

S.W.3d at 505 (quoting Harris, 860 F. Supp. 2d at 980). The supreme court concluded that

Gonzalez’s role with respect to the transaction at issue there was analogous to FedEx’s role in

the transaction at issue in Harris—“Gonzalez was acting as a shipper, not a motor carrier”

because there was “no evidence that Gonzalez exercised any control over the trucks or the

drivers as they transported the silage to the feed yard.” Id. at 505.

Ten Hagen argues that, like the defendants in Harris and Gonzalez, there is no evidence

that Ten Hagen exercised control over the 18-wheeler at the time of the accident. We disagree.

As we describe in greater detail below, Ross testified that Ten Hagen was directing the operation

of the 18-wheeler at the time of the accident. The night before the accident, Ten Hagen directed

Ross to pick up some trees and haul them to a recycling center. Ross picked up the trees, kept

the trees on the trailer, parked the 18-wheeler on Ten Hagen’s lot overnight, and delivered the

trees to the recycling center the next day. After Ross dropped off the trees, Ten Hagen directed

him to pick up a load of fill dirt in Arlington and haul it to Plano. After Ross did that, a Ten

Hagen superintendent directed Ross to go to Burleson to pick up more trees and haul them to the

recycling center. On his way to get the trees, Ross caused the accident at issue in this case. And

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Ten Hagen’s name and motor carrier number—and no one else’s—were on the tractor at the time

of the accident:

Based on all of the evidence presented in this case, we conclude that Ten Hagen met the

applicable definition of a motor carrier because it was controlling or directing the operation of

the 18-wheeler at the time of the accident. As a result, the trial court properly granted the

Castros’ motion and instructed the jury that Ten Hagen was Ross’s statutory employer. We

resolve this issue against Ten Hagen.

LEGAL SUFFICIENCY OF THE EVIDENCE

Next, Ten Hagen argues that the evidence is legally insufficient to support four of the

jury’s findings. More specifically, Ten Hagen challenges the evidence supporting the findings

that (1) Ross was acting in the scope of employment at the time of the accident, (2) Ross’s

negligence caused the accident and Martinez’s negligence did not cause the accident,

(3) $150,000 would fairly and reasonably compensate Lorena for her past physical pain and

mental anguish, and (4) $10,911.13 would fairly and reasonably compensate Lorena for her past

medical care expenses.
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 Standard of Review

When a party challenges the legal sufficiency of the evidence, we consider the evidence

in the light most favorable to the finding and indulge every reasonable inference that supports it.

See City of Keller, 168 S.W.3d at 822. “The final test for legal sufficiency must always be

whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict

under review.” Id. at 827. To determine whether the evidence meets this test, we credit

evidence that supports the verdict if reasonable jurors could, and disregard contrary evidence

unless reasonable jurors could not. See id. at 827. Anything more than a “scintilla of evidence”

is legally sufficient to support the jury’s finding. Cont’l Coffee Prods. Co. v. Cazarez, 937

S.W.2d 444, 450 (Tex. 1996). To be more than a scintilla, the evidence must rise “to a level that

would enable reasonable and fair-minded people to differ in their conclusions.” See Transp. Ins.

Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994).

When a party challenges the legal sufficiency of an adverse finding on an issue on which

it did not have the burden of proof, the party must demonstrate on appeal that there is no legally

cognizable evidence to support the adverse finding. See, e.g., City of Keller, 168 S.W.3d at 813

(explaining “evidence that might be ‘some evidence’ when considered in isolation is nevertheless

‘no evidence’ when contrary evidence shows it to be incompetent”). Evidence is legally

insufficient to support a finding if the record shows (1) a complete absence of evidence of a vital

fact, (2) the court is barred by the rules of law or evidence from giving weight to the only

evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more

than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact.

Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 228 (Tex. 2011).

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 First Finding: Scope of Employment

Ten Hagen argues that it did not owe a legal duty to the Castros, regardless of whether

“Ross were Ten Hagen’s employee,” because the evidence conclusively demonstrates that Ross

was not acting in the scope of his employment at the time of the accident. See generally Guerra,

348 S.W.3d at 228 (evidence is legally insufficient to support a finding if record shows evidence

conclusively establishes the opposite of a vital fact).

Applicable Law

Under common law, an employer is generally liable for the tort of its employee “only

when the tortious act falls within the scope of the employee’s general authority in furtherance of

the employer’s business and for the accomplishment of the object for which the employee was

hired.” Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex. 2007) (internal

quotation omitted). The specific elements require that an employee’s act must be (1) committed

within the scope of the general authority of the employee, (2) in furtherance of the employer’s

business, and (3) for the accomplishment of the object or purpose for which the employee was

hired. Bell v. VPSI, Inc., 205 S.W.3d 706, 715 (Tex. App.—Fort Worth 2006, no pet.) (citing

Leadon v. Kimbrough Bros. Lumber Co., 484 S.W.2d 567, 569 (Tex. 1972); Robertson Tank

Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 357 (Tex. 1971)). Applying these elements in a case

involving a car accident, for example, employers generally are not liable for accidents involving

their employees while the employees are traveling to and from work. See Tex. Gen. Indem. Co.

v. Bottom, 365 S.W.2d 350, 354 (Tex. 1963). Even when utilizing an employer-owned vehicle,

an employee is not always acting in the scope of employment. See, e.g., Goodyear Tire &

Rubber Co., 236 S.W.3d at 757.

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 Analysis

To determine whether the evidence is legally sufficient to support the jury’s finding, we

begin by summarizing Ross’s testimony. Ross testified that he was working for Ten Hagen on

the day of the accident hauling trees and dirt to and from suburbs near Dallas. He was paid by

the hour, not by the load, and he “believe[s]” the exact amount was $50 per hour. Ross started

the day by delivering a load of trees that were left in the trailer from the previous day. Next he

drove to Arlington, picked up a load of dirt, and delivered that load to Plano. After Ross

dropped off the dirt in Plano, a superintendent for Ten Hagen told Ross to drive to Burleson

(which he later indicated may have been Joshua rather than Burleson) to pick up another load of

trees. The accident occurred while Ross was on his way to pick up the second load of trees:

Q. Okay. So at the time of this accident, you were on your way to a job that
Ten Hagen had directed you to go to; is that correct?

A. Yes.

Q. You were going to go to Burleson, you were going to pick up some—what
did you say trees?

A. Trees.

Q. And what were you going to do with the trees?

A. Haul them to recycling.

Q. All of that was done on behalf of Ten Hagen and at Ten Hagen’s direction;
is that correct?

A. Schedule, yes.

Q. And how was it that you were told or how did you learn that you were to
go out to Burleson and pick these trees up? Did they tell you after you do
the drop-off in Plano, go here?

A. The superintendent did.

Q. People from Ten Hagen told you that?

A. Right.

–17–
 Q. Okay. So in terms of the directions that you received to go out to
Burleson, pick up this load, the superintendent for Ten Hagen told you to
go do that; is that correct?

A. After I got done with Plano, to go haul trees.

Ross explained that he chose a route that included Interstate 30 because the job site in Plano may

have needed another load of dirt, and if so he could “pick it up on 30.”

Despite Ross’s testimony, Ten Hagen argues that the evidence conclusively established

that Ross was not acting in the scope of his employment at the time of the accident for two

reasons. First, Ten Hagen argues that Ross was not “on the clock” at the time of the accident:

• Ross had delivered his load for Ten Hagen in Collin County before the
crash;

• the crash occurred later in Dallas County;

• Ross was not hauling anything for Ten Hagen at the time of the crash—his
truck was empty;

• while Ross testified he was driving toward another job for Ten Hagen,
Ross was paid hourly only during the time he spent for loading and
hauling of materials for Ten Hagen—he was not on the clock when
driving between hauling jobs.

Second, Ten Hagen argues that it was “not controlling Ross or his actions at the time of the

crash.”

To support its argument that Ross was “on the clock” only when he was loading or

hauling materials, Ten Hagen cites two pages from the testimony of Ten Hagen’s president, Scott

Ten Hagen. On the first page (read in context with the related questions and answers on the prior

page), Scott testified that Ten Hagen generally preferred to pay bigger hauling companies (not

Ross) a “flat fee” or “set price per load” because it was harder to monitor the bigger companies’

drivers. Next Scott was asked if Ross “[had] a load” at the time of the accident, and he

answered, “No.” These statements, however, do not conclusively demonstrate that Ross was

paid or “on the clock” only when he was loading or hauling materials. See generally City of

–18–
Keller, 168 S.W.3d at 816 (noting “[u]ndisputed evidence and conclusive evidence are not the

same—undisputed evidence may or may not be conclusive”). Moreover, Ross testified that he

was paid $50 per hour and not by the load.

On the second page, Scott testified that Ross’s timesheet on the date of the accident stated

that he stopped work at noon, which was before the accident. To the extent that Ten Hagen

argues that Scott’s testimony and Ross’s timesheet are conclusive evidence that Ross was not

“on the clock” at the time of the accident, we disagree. In addition to listing one start time and

one stop time, Ross’s timesheet on the day of the accident also stated a total work time of “4”

hours. It is undisputed that during this unbroken 4-hour work period the trailer he was hauling

was empty at least once—when he was driving from the recycling plant to Arlington. No time

was subtracted, however, for the time that the trailer was empty. Added together, Ross’s

timesheets indicated that he worked a total of 27 hours during the week of the accident—9 hours

on Monday (8 a.m. to 5 p.m.), 4 hours on Tuesday (with no start or stop time listed), 10 hours on

Wednesday (8 a.m. to 6 p.m.), and 4 hours on Thursday (the date of the accident). Ross’s

timesheet for Wednesday indicated that he hauled at least 3 loads that day, but no “off the clock”

time is listed. Ross’s time records also showed that he was paid a total of $1620 for 27 hours of

work that week. In short, based on Ross’s timesheets for the week of the accident, Ross was

paid $60 for every hour that he was hauling Ten Hagen’s trailer, including when it was empty.

We conclude that the evidence does not conclusively demonstrate that Ross was not “on the

clock” at the time of the accident.

Finally, Ten Hagen argues that the evidence conclusively demonstrated that Ten Hagen

was “not controlling Ross or his actions at the time of the crash.” To support this argument, Ten

Hagen cites generally to two pages of Ross’s testimony. In those pages Ross testified that when

the accident occurred he was on his way to pick up trees for Ten Hagen in Burlington or Joshua,

–19–
and that he was on Interstate 30 because the job site in Plano may have needed another load of

dirt and Interstate 30 “was the same highway that [he] got the previous load from.” This

testimony, however, does not conclusively demonstrate that Ten Hagen was not controlling Ross

or his actions at the time of the accident. To the contrary, Ross’s testimony that he was working

for Ten Hagen at the time of the accident and traveling to pick up a load of trees at Ten Hagen’s

direction is more than a scintilla of evidence that Ten Hagen was controlling Ross’s actions at

the time of the crash.

We conclude that the evidence at trial would enable reasonable and fair-minded jurors to

find that Ross was acting in the scope of his employment at the time of the accident. See, e.g.,

Arbelaez v. Just Brakes Corp., 149 S.W.3d 717, 721 (Tex. App.—Austin 2004, no pet.)

(employee in scope of employment when collision occurred while he was making “breakfast

run” for shop employees at manager’s affirmative request); see also Gebert v. Clifton, 553

S.W.2d 230, 232 (Tex. Civ. App.—Houston [14th Dist.] 1977, writ dism’d) (employee in scope

of employment when collision occurred while returning from location where he had been at

employer’s direction, in furtherance of employer’s business). We resolve this issue against Ten

Hagen.

Second Finding: Ross’s Negligence Caused the Accident

Next Ten Hagen argues that the evidence is legally insufficient to support the jury’s

finding that Ross’s negligence alone caused the accident. More specifically, Ten Hagen argues

that eyewitness testimony supporting the finding was “rendered incompetent” or “condemned”

by the “objective physical evidence.” See generally Guerra, 348 S.W.3d at 228 (evidence is

legally insufficient to support a finding if record shows evidence conclusively establishes the

opposite of a vital fact).

–20–
 Summary of the Evidence

Nine people testified about the accident: the three plaintiffs, four other eyewitnesses, one

investigator, and one accident-reconstruction expert. The eyewitness testimony was somewhat

conflicting. The conflicts centered on the initial collision in the westbound lanes, and the speed

of the eastbound traffic at the time.

The first witness was George Cantu, the passenger in the cement truck. Cantu testified

that there were a total of four westbound lanes and that the cement truck was hit twice from

behind while traveling in the left center lane (i.e., the lane just to the right of the inside lane). He

described traffic conditions at the time as “a normal day.”

The second witness was Timothy Allman, the Dallas County Deputy Sheriff who

investigated the accident. He testified that he has received training in traffic accident

investigations and has six or six-and-a-half years of experience investigating accidents. He has

investigated approximately 200 accidents, including at least 60 or 70 “serious wrecks” like this

one. During this investigation, he reviewed physical evidence including skid marks and property

damage. He and other deputies spoke to three eyewitnesses at the scene—Ross, Martinez, and a

man named Jose Leija who was traveling in one of the eastbound vehicles. As summarized in

his accident report diagram, Allman concluded that the cement truck was traveling in the inside

westbound lane and the 18-wheeler was traveling in the center westbound lane at the time of the

initial impact, and that the impact occurred when the 18-wheeler entered the left lane from the

center lane (the 18-wheeler is identified as units 1 and 2; the cement truck is identified as unit 3):

–21–
 The third witness (appearing by deposition) was Elsa Castillo, the front-seat passenger in

the vehicle identified as unit 7 on the accident diagram. Castillo testified that she was traveling

eastbound in the center lane at approximately 55 miles per hour in light traffic when she looked

over at the westbound traffic and saw the 18-wheeler change lanes from the center lane to the left

lane and hit the cement truck. She described the initial impact as follows:

Q What part of the 18-wheeler made contact with what part of the cement
truck or vice versa?

A The front part. It was like the cement truck—it hit like the side of the
cement truck.

Q Now, tell me. I’m not sure what that means to you. Can you tell me?

A Like the very end of the cement truck.
–22–
 Q When you say very end, do you mean the back?

A Yes.

Q What—okay. What part of the 18-wheeler collided with the back of the
cement truck?

A It was like the front part of the 18-wheeler?

Q The cab where the driver sits?

A I believe so.

The fourth witness (also appearing by deposition) was Jose Leija, the driver of the

vehicle identified as unit 4 on the accident diagram. Leija testified that he was traveling

eastbound in the inside lane (i.e., the lane closest to the center guard rail). According to Leija,

eastbound traffic was “very slow as usual” and westbound traffic was moving at a normal speed.

Leija testified that he was “able to witness the accident” because traffic was “pretty much at a

stop.” As the westbound vehicles were approaching Leija, the cement truck was in the inside

lane and the 18-wheeler was in the center lane. The cement truck was driving faster than the 18-

wheeler and was passing the 18-wheeler when the 18-wheeler moved into the left lane and hit the

cement truck. Leija described the initial impact as follows:

The cement truck was coming kind of close too on this side, and then it passed it,
passed the 18-wheeler. Once it passed the 18-wheeler, the point of contact was in
between the cargo and the cab of the cement truck.

Because of his vantage point, Leija was able to see the surprised look on the faces of the men in

the cement truck.

The fifth witness was Martinez. He testified that he was driving the cement truck

westbound in the center lane at the time of the accident. He was on his way back to his

company’s cement plant and was about 3/4 mile away from the exit he needed to take to get to

the plant. According to Martinez, westbound traffic was “almost desolate” and eastbound traffic

was “stopped.” As he prepared to move over into the right lane, he looked in both of his

–23–
rearview mirrors and did not see any vehicles behind him. Before he could move over, he was

hit twice from behind. After the second impact, he was unable to control the cement truck.

The sixth witness (appearing by deposition) was Ross. Ross testified that he was driving

the 18-wheeler westbound in the center lane and the cement truck was in the right lane.

According to Ross, the cement truck moved into the center lane and hit the right side of Ross’s

tractor. Ross generally described the traffic at the time as “the same as it normally is that time of

day”—traffic was not stopped, but “[e]veryone’s not hauling ass to get somewhere.”

The Castros, who were in the vehicle identified as unit 6 on the accident diagram,

testified that they were traveling home in the eastbound lanes and did not see the initial collision

in the westbound lanes. They both testified that eastbound traffic was very slow at the time of

the accident.

The ninth and final witness was Hal Watson Jr., Ph.D., Ten Hagen’s accident-

reconstruction expert. Watson is a former university professor who taught mechanical

engineering courses for 35 years. Watson specializes in forensic engineering or accident

reconstruction, including traffic accidents, industrial accidents, and construction accidents. He

has given deposition testimony in hundreds of cases and testified in state and federal court

around 75 or 80 times.

The defendants hired Watson five days after the accident. He “drove the scene” but was

unable to “walk the scene” because the accident occurred on a busy freeway with “very narrow

shoulders [and] almost no median.” In addition, he also went to the “state compound” to see and

photograph the cement truck and the 18-wheeler. He also met with Allman and reviewed the

accident report, read the deposition testimony of eyewitnesses, and reviewed all of the videos

and pictures that were taken at the scene by news agencies and others.

–24–
 Based on his investigation, Watson concluded that Martinez caused the accident by

moving into Ross’s lane of traffic:

It is my opinion that this incident was caused by the driver of the cement mixer in
either attempting to change lanes when unsafe or failing to drive his vehicle in a
single travel lane and to impact the side of Ross’[s] truck, which started a chain of
events in which the cement truck veered left into the inside travel lane and into
the guard fence and took Ross’[s] truck and trailer with him.

According to Watson, the damage to the 18-wheeler shows that the accident could not have

occurred the way it was described in the accident report:

The Buddy Ross tractor was damaged all the way across the front of the vehicle.
The major damage done to his tractor was on the right front. The right front
bumper was bent all the way in, the fender was crumpled, and the wheel was
deflated. It takes a great deal of force to deflate a large truck tire. It rarely
happens in a collision.

If the—on the other hand, on the left side of the vehicle, which is where the police
officer said the initial contact was made, there is slight damage, but the steering
would not have been affected on that wheel. The wheel was not affected. The
tire was not affected. The bumper wasn’t bent. If there had been a collision like
he described, there would be major damage to the front of the Buddy Ross tractor
on the left side. That was not there.

In Watson’s opinion, the physical evidence supports Ross’s testimony. For example,

Watson testified that the damage to Ross’s tractor on the passenger side and the right front side is

consistent with a “sideswipe-type collision” and with Ross’s statement that the cement truck hit

the passenger side of his tractor:

–25–
–26–
In addition, according to Watson, skid marks leading from the center lane to the median show

that “heavy braking and steering forces began in the center lane, not in the inside lane.”

On cross-examination Watson acknowledged that he wanted to do a full inspection of the

cement truck but was able to do only a “cursory inspection” because of how and where it was

parked at the compound. Watson was also asked about certain pictures (not identified by exhibit

number) that apparently showed damage to the guard rail and the 18-wheeler’s final position on

the guard rail. Watson appeared to deny that the guard rail could have caused the damage he

says could be attributed only to the impact from the cement truck.

Analysis

Ten Hagen argues that the testimony of Castillo and Leija cannot support the jury’s

finding for two reasons. First, Ten Hagen argues that their testimony was incompetent because

their view was obscured—i.e. they were “traveling on the highway in the opposite direction” and

“would have been on the other side of a concrete barrier.” As the supreme court has explained,

there may be certain cases in which an eyewitness’s testimony is no evidence of what occurred,

such as when “an eyewitness’s location renders a clear view of an accident ‘physically

impossible.’” City of Keller, 168 S.W.3d at 812. But this is not one of those cases. Although

there was a divider between the eastbound and westbound lanes, the evidence does not show that

it was a “concrete barrier” or that it was high enough to render the view of the westbound lanes

from the eastbound lanes physically impossible. Instead, images introduced into evidence during

trial by Ten Hagen show that the lanes were divided by a short metal guard rail:

–27–
In addition, Leija specifically testified that he was able to see the initial impact “because it was

up high.”

Ten Hagen also argues that the testimony of Castillo and Leija is incompetent because

their testimony was irreconcilably conflicting as to how the initial impact in the westbound lanes

occurred and the speed of eastbound traffic at the time. With respect to the initial impact, Ten

Hagen argues that Castillo’s testimony that the 18-wheeler hit the cement truck “from behind”

cannot be reconciled with Leija’s testimony that the 18-wheeler hit the left side of the cement

truck. And with respect to the speed of eastbound traffic at the time, Ten Hagen argues that

Castillo’s testimony that she was traveling 55 miles per hour cannot be reconciled with Leija’s

testimony that he was stopped in standstill traffic. We do not agree. Castillo and Leija had

different vantage points because they were not in the same vehicle or in the same lane when the

initial impact occurred. But they both said the cement truck was in the inside lane and the 18-

–28–
wheeler was in the center lane. In addition, they both testified that the 18-wheeler hit the cement

truck. And with respect to the discrepancy in their descriptions of the speed of eastbound traffic

at the time, it may be explained in part by the fact that they were in different lanes. Nevertheless,

even if their testimony was irreconcilably conflicting, that would not render it legally insufficient

to support a jury’s verdict. It is the jury’s prerogative to resolve conflicts in testimony. See City

of Keller, 168 S.W.3d at 819 (noting jurors “may choose to believe one witness and disbelieve

another”); see also Sw. Energy Prod. Co. v. Berry-Hefland, No. 13-0986, 2016 WL 3212999, at

*11 (Tex. June 10, 2016) (“If the evidence conflicts, it is the province of the jury to determine

which evidence to credit.”).

With respect to all of the testimony from witnesses who attributed fault to Ross—

including Leija, Castillo, and Martinez—Ten Hagen argues that their testimony cannot support

the jury’s finding because it is “condemned by the physical evidence.” To support this

argument, Ten Hagen cites repeatedly to Watson’s expert testimony concerning the “objective

physical evidence.”

To the extent that Ten Hagen argues that the jury could not disregard Watson’s

conclusion that Martinez caused the accident, we disagree. Expert testimony is not required to

establish negligence in a traffic-accident case if the question is not complex and not beyond the

competence of an average juror. See Pilgrim’s Pride Corp. v. Smoak, 134 S.W.3d 880, 892

(Tex. App.—Texarkana 2004, pet. denied). In other words, “not every motor vehicle accident

requires expert testimony to understand how it took place and who is at fault.” Id. This is

particularly true when several fact witnesses testify about the cause of the accident and the

physical evidence is not outside a layperson’s common sense or understanding. See id. In short,

Watson’s testimony may have been admissible as probative evidence, but it was the province of

–29–
the jury to decide how much weight, if any, to give to his testimony. See City of Keller, 168

S.W.3d at 819; see also Sw. Energy Prod. Co., 2016 WL 3212999, at *11.

And to the extent that Ten Hagen contends that the physical evidence in this case is

conclusive and allows for only one logical inference on the issue of whose negligence caused the

accident, we disagree. As the supreme court has explained, “there are few instances in which

disputed evidence is conclusive.” City of Keller, 168 S.W.3d at 816.

In this case, the two pictures that were specifically identified during Watson’s testimony

(as shown above) show damage to the front and sides of Ross’s vehicle—not just the passenger

side. We also note that in at least one of Ten Hagen’s pictures of the accident scene, the right

front wheel of the 18-wheeler appears to be resting on the guard rail:

It appears that the metal steps below the passenger door are bent forward in one of the

pictures Watson relied upon—but these pictures were taken after the vehicle was removed from

its final position on the center guard rail, and Ten Hagen does not cite evidence showing how the

–30–
steps looked before the accident or how they looked before authorities removed the 18-wheeler

from the center guard rail. In short, we cannot say that there is any objective physical evidence

in this case that conclusively demonstrates that Ross’s negligence was not the sole cause of the

accident. See, e.g., Cty. of Dallas v. Poston, 104 S.W.3d 719, 724 (Tex. App.—Dallas 2003, no

pet.) (rejecting defendant’s argument that objective physical evidence rendered plaintiff’s

testimony legally insufficient to support finding of negligence).

We conclude that the evidence at trial would enable reasonable and fair-minded jurors to

find that Ross’s negligence alone caused the accident. We resolve this issue against Ten Hagen.

Third Finding: $150,000 for Lorena’s Past Physical Pain and Mental Anguish

Next Ten Hagen argues that the evidence is legally insufficient to support the jury’s

finding that $150,000 would fairly and reasonably compensate Lorena for her past physical pain

and mental anguish. More specifically, Ten Hagen argues that there was less than a scintilla of

evidence to support each element of the award. See generally Guerra, 348 S.W.3d at 228

(evidence is legally insufficient to support a finding if record shows evidence offered to prove a

vital fact is no more than a scintilla).

Applicable Law

As we recently explained in another truck-accident case, the process of awarding

damages for discretionary, amorphous injuries such as pain and suffering or mental anguish is

inherently difficult because the alleged injury is a subjective, unliquidated, nonpecuniary loss.

Swearinger v. Guajardo, No. 05-15-00202-CV, 2016 WL 4162785, at *2 (Tex. App.—Dallas

Aug. 5, 2016, no. pet. h.) (mem. op.) (citing Dawson v. Briggs, 107 S.W.3d 739, 750 (Tex.

App.—Fort Worth 2003, no pet.)). “A great deal of discretion is given to the jury in awarding an

amount of damages it deems appropriate for pain and suffering.” Christian Care Ctrs., Inc. v.

O’Banion, No. 05-12-01407-CV, 2015 WL 5013615, at *4 (Tex. App.—Dallas Aug. 25, 2015,

–31–
no pet.) (mem. op.). Evidence of past pain and mental anguish may be proven through a

plaintiff’s testimony or other evidence, including circumstantial evidence. Id. If there is no

direct evidence of pain, the jury is permitted to infer the occurrence of pain from the nature of

the injury. Id.

Generally, an award of mental anguish damages must be supported by direct evidence

that the nature, duration, and severity of mental anguish was sufficient to cause, and caused,

either a substantial disruption in the plaintiff’s daily routine or a high degree of mental pain and

distress. See Swearinger, 2016 WL 4162785, at *2. Evidence of a high degree of mental pain

and distress must be more than mere worry, anxiety, vexation, embarrassment, or anger. Id.

Evidence at Trial

Lorena testified that she was 18 years old at the time of the accident. On that day she had

been attending Remington College in Fort Worth studying to be a medical x-ray assistant. Her

father picked her up in the family’s only vehicle. They were driving eastbound on Interstate 30

toward their home and planned to stop at the store first. Their car was stopped in heavy traffic

when a westbound cement truck crossed over the guard rail and hit them. When Lorena was

asked if the impact was scary, she said, “Yeah, it really was.” Photographs of the accident show

that the Castros’ car was smashed and its top was torn off:

–32–
After seeing pictures of the Castros’ vehicle taken at the accident scene, the defendants’ rebuttal

medical expert agreed that if Lorena was in the vehicle at the time of the accident, she was

“fortunate” not to have been “hurt very bad.”

Lorena got out of the car by climbing out of the top, but her father was trapped inside.

After she got out, she wanted to help her father, but others at the scene would not allow her

because “they didn’t know if anything was going to either blow up or anything was going to

catch on fire.” When she was shown a picture of their car at the accident scene Lorena cried,

then apologized, as she tried to explain how she felt watching her dad trapped inside the car:

Q. . . . [W]hat was scaring you? Was it the possibility that something was
going to catch on fire, or was it something different?

A. It was different.

Q. What was it?

A. I mean, my dad was trapped. I couldn’t do anything to help. (Witness is
crying). Sorry.

–33–
The record does not indicate how long she cried on the stand, but when she was able, she

continued to testify and began to list her injuries caused by the accident, including neck pain

from whiplash and back pain. When asked if she felt like she had “healed 100 percent

emotionally from the trauma,” Lorena answered, “No.”

After her father was pulled from the vehicle, she rode with him in the ambulance to the

hospital and stayed with him as long as she could. A notation in Lorena’s medical records

indicates that she was covered in glass when she arrived at the hospital, and that she was

admitted to the hospital complaining that she felt glass in her eye:

Patient began complaining of glass in her eye, shoes, and clothing. Patient was
admitted by 7:26 to Methodist Hospital.

When she was examined, hospital personnel could not see any object in her eye. But after she

left the hospital Lorena began to feel pain in her neck, arm, and lower back. The pain did not go

away, and a month after the accident, she sought treatment from a chiropractor. According to the

chiropractor’s medical records, Lorena described her symptoms to the chiropractor as neck pain,

mid-back pain, headaches, left shoulder pain, left leg pain, and chest pain. Lorena responded

favorably to the treatment, which she received for four months after the accident. At the time of

trial she said her pain was better and that “it comes and goes” maybe once or twice a month.

Analysis

With respect to Lorena’s past mental anguish, Ten Hagen argues that Lorena offered less

than a scintilla of evidence to support her claim because her evidence did not show a high degree

of mental pain and distress and instead her “only testimony was that the crash scared her.” We

disagree. Lorena cried on the witness stand almost four years later when she saw a picture from

the accident scene and recounted the trauma of seeing her father trapped in the car as people on

the scene warned her it might explode. In addition, the evidence in this case included numerous

disturbing pictures of the damage to the Castros’ car. Considering the evidence in the light most
–34–
favorable to the finding, we conclude that there is more than a scintilla of evidence concerning

Lorena’s high degree of mental pain and distress.

With respect to Lorena’s past physical pain, Ten Hagen argues that Lorena offered only

“scant evidence” of “minor pain.” We disagree. According to her chiropractor’s medical

records, when Lorena visited the chiropractor one month after the accident, she reported “that her

vehicle was thrown sideways,” “[h]er body was thrown forward,” “[s]ince the accident she has

experienced progressively severe headaches [and that] [h]er pain began later the same day.” It

took her four months to recover from most of the pain of her injuries, and she was still

experiencing some pain at the time of trial (almost four years later).

Additionally, the jury was asked a broad-form question, and asked for a lump-sum

answer, concerning two amorphous injuries—Lorena’s past physical pain and mental anguish.

Under these circumstances, and in light of the evidence in this case, Lorena’s past mental

anguish or past physical pain alone could support the jury’s entire lump-sum award. See, e.g.,

Figueroa v. Davis, 318 S.W.3d 53, 63 (Tex. App.—Houston [1st Dist.] 2010, no pet.)

(“Sufficient evidence of either past physical pain or past mental anguish could support the award

because the charge did not ask for separate damages figures for each type of injury.”).

We conclude that the evidence at trial would enable reasonable and fair-minded jurors to

find that $150,000 would fairly and reasonably compensate Lorena for her past physical pain and

mental anguish. We resolve this issue against Ten Hagen.

Fourth Finding: $10,911.13 for Lorena’s Past Medical Care Expenses

Finally, Ten Hagen argues that the evidence is legally insufficient to support the jury’s

finding that $10,911.13 would fairly and reasonably compensate Lorena for her past medical

care expenses. More specifically, Ten Hagen argues that Lorena did not present any evidence

that her medical expenses were causally related to the accident. See generally Guerra, 348

–35–
S.W.3d at 228 (evidence is legally insufficient to support a finding if record shows a complete

absence of evidence of a vital fact).

Applicable law

A plaintiff must establish through competent evidence that her injuries were causally

related to the event sued upon. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex.

1984). Expert testimony regarding this causal nexus is not always required. See id. at 733. In

the context of an automobile accident, lay testimony “establishing a sequence of events which

provides a strong, logically traceable connection between the event and the condition” can

support a finding of causation if the conditions

(1) are within the common knowledge and experience of laypersons, (2) did not
exist before the accident, (3) appeared after and close in time to the accident, and
(4) are within the common knowledge and experience of laypersons, caused by
automobile accidents.

Guevara v. Ferrer, 247 S.W.3d 662, 667 (Tex. 2007).

Analysis

First, Ten Hagen argues that there is no evidence that Lorena’s chiropractic expenses

were causally related to the accident. But Ten Hagen refers to chiropractic expenses “beginning

January 12, 2011 (two months after the accident),” while Lorena’s chiropractic records showed

that she began seeing the chiropractor on December 10—less than one month after the November

11 accident. The records stated that she was seen “for treatment of injuries that she sustained as

the result of a motor vehicle accident.” During her examination Lorena told the chiropractor

“that her vehicle was thrown sideways,” “[h]er body was thrown forward,” “[s]ince the accident

she has experienced progressively severe headaches [and that] [h]er pain began later the same

day.” Lorena also told the chiropractor that her injuries from the car accident caused neck pain,

mid-back pain, headaches, left shoulder pain, left leg pain, and chest pain. The chiropractor’s

records also indicated that prior to the accident, Lorena reported no history of surgery, accident,
–36–
injury, broken bones or any other condition or injury that may have caused the symptoms.

Viewed together, Lorena’s testimony and chiropractic records generally meet the requirements

set forth in Guevara and connect her injuries to the accident. See Guevara, 247 S.W.3d at 667.

Ten Hagen argues that the “uncontroverted testimony” from its rebuttal medical expert

established that Lorena’s injuries “would not be expected to cause ongoing complaints more than

a couple of months after the accident.” To the extent Ten Hagen argues that this testimony

conclusively established the opposite of a vital fact (i.e., that Lorena’s injuries were not caused

by the accident), we disagree. Although he may have disputed how long the pain would last, he

did not testify that Lorena’s injuries were not caused by the accident.

Although Ten Hagen also argues that there is no causal connection between Lorena’s

“2013 medical care expenses” and the 2010 accident, it does not cite to the record or otherwise

identify or describe the 2013 medical care expenses. Consequently, we do not address it. See

Barnett v. Coppell N. Tex. Court, Ltd., 123 S.W.3d 804, 817 (Tex. App.—Dallas 2003, pet.

denied).

We conclude that the evidence at trial would enable reasonable and fair-minded jurors to

find that $10,911.13 would fairly and reasonably compensate Lorena for her past medical care

expenses. We resolve this issue against Ten Hagen.

EXCLUSION OF REBUTTAL EXPERT TESTIMONY

Ten Hagen argues that the trial court abused its discretion when it excluded part of the

trial testimony of Ten Hagen’s medical expert, John Sklar, M.D.—which Ten Hagen intended to

introduce to rebut the Castros’ evidence that their past medical expenses were reasonable and

necessary (i.e. to rebut the affidavits of the Castros’ medical providers made pursuant to section

18.001 of the Texas Civil Practice and Remedies Code). Ten Hagen argues that the trial court

abused its discretion twice—first, when it granted the Castros’ pretrial motion to strike Sklar’s

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counteraffidavits for failure to comply with section 18.001; and second, when it excluded Sklar’s

trial testimony because it had previously struck Sklar’s counteraffidavits. Alternatively, Ten

Hagen argues that even without a proper counteraffidavit, section 18.001 did not preclude Ten

Hagen from introducing Sklar’s testimony at trial to rebut the Castros’ evidence that their past

medical expenses were reasonable and necessary. Ten Hagen argues that the exclusion of this

evidence probably caused the rendition of an improper judgment and warrants a remand for new

trial.

Standard of Review

We review a trial court’s rulings admitting or excluding evidence under an abuse of

discretion standard. Hong v. Bennett, 209 S.W.3d 795, 799 (Tex. App.—Fort Worth 2006, no

pet.). We will uphold the ruling if there is any legitimate basis in the record to support it. See id.

A trial court’s erroneous legal conclusion, even in an unsettled area of law, is an abuse of

discretion. See id.

Section 18.001 Affidavits Concerning Past Medical Expenses

Because Ten Hagen’s arguments center on civil practice and remedies code section

18.001, and because it argues that the trial court misapplied the law relating to section 18.001

counteraffidavits, we set forth in detail the purpose, requirements, and effect of affidavits and

counteraffidavits made pursuant to section 18.001 of the civil practice and remedies code.

In a personal injury case, a claim for past medical expenses must be supported by

evidence that (1) the plaintiff’s injuries were caused by the defendant’s negligence, and (2) the

medical treatment was necessary and the charges for that treatment were reasonable. See

generally Texarkana Mem’l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 840 (Tex. 1997) (“We [ ]

hold that a plaintiff should recover only for medical expenses specifically shown to result from

treatment made necessary by the negligent acts or omissions of the defendant[.]”); Whitaker v.

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Rose, 218 S.W.3d 216, 223 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (noting even default

judgment does not relieve plaintiff of burden to show past medical expenses were reasonable and

necessary). A plaintiff can present evidence concerning the reasonableness and necessity of past

medical expenses through (1) expert testimony, or (2) an affidavit from the plaintiff’s medical

provider made pursuant to section 18.001. See Whitaker, 218 S.W.3d at 223; see also TEX. CIV.

PRAC. & REM. CODE ANN. § 18.001 (West 2013). In other words, a medical provider’s section

18.001 affidavit can save the plaintiffs the expense of having to hire an expert to testify that their

medical expenses were reasonable and necessary. 12 See Turner v. Peril, 50 S.W.3d 742, 747

(Tex. App.—Dallas 2001, pet. denied) (“Section 18.001 provides a significant savings of time

and cost to litigants, particularly in personal injury cases, by providing a means to prove up the

reasonableness and necessity of medical expenses.”).

As our sister court explained, section 18.001 is, in essence, an exception to the hearsay

rule:

Section 18.001 is an evidentiary statute which accomplishes three things: (1) it
allows for the admissibility, by affidavit, of evidence of the reasonableness and
necessity of charges which would otherwise be inadmissible hearsay; (2) it
permits the use of otherwise inadmissible hearsay to support findings of fact by
the trier of fact; and (3) it provides for exclusion of evidence to the contrary, upon
proper objection, in the absence of a properly-filed counteraffidavit.

Beauchamp v. Hambrick, 901 S.W.2d 747, 749 (Tex. App.—Eastland 1995, no writ). But the

exception to the hearsay rule applies only when no controverting affidavit is served:

Unless a controverting affidavit is served as provided by this section, an affidavit
that the amount a person charged for a service was reasonable at the time and
place that the service was provided and that the service was necessary is sufficient
evidence to support a finding of fact by judge or jury that the amount charged was
reasonable or that the service was necessary.

12
Section 18.001 generally applies in “all civil actions” in which a plaintiff seeks to recover damages for amounts that have already been
paid to a service provider. See TEX. CIV. PRAC. & REM. CODE ANN. § 18.001(a)–(b). Section 18.001 addresses only the issue of the
reasonableness and necessity of past expenses—it does not establish “the requisite causal link” between the occurrence and the plaintiff’s
damages. See Gunn v. McCoy, 489 S.W.3d 75, 101 (Tex. App.—Houston [14th Dist.] 2016, pet. filed).

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TEX. CIV. PRAC. & REM. CODE ANN. § 18.001(b). 13 And even when the exception applies and the

uncontroverted affidavit is admissible, it is not conclusive evidence as to the amount of

recoverable damages for past medical expenses. See Gunn v. McCoy, 489 S.W.3d 75, 101 (Tex.

App.—Houston [14th Dist.] 2016, pet. filed). The jury is not required to award a plaintiff the

amount of damages established in the affidavit, but if it chooses to do so, the affidavit is

sufficient evidence to support the finding that the past medical expenses were reasonable and

necessary. See Gutierrez v. Martinez, No. 01-07-00363-CV, 2008 WL 5392023, at *9 (Tex.

App.—Houston [1st Dist.] Dec. 19, 2008, no pet.) (mem. op.).

If an opposing party intends to controvert a claim reflected by an initial affidavit, the

opposing party must serve a counteraffidavit. There are two main requirements for a

counteraffidavit: (1) it must give reasonable notice of which claims the opponent intends to

controvert and why, and (2) it must be made by a person who is qualified to testify about the

matters in dispute. See TEX. CIV. PRAC. & REM. CODE ANN. § 18.001(f). 14

Procedural Background

In this case, in support of their claims for past medical expenses, the Castros served

several provider affidavits pursuant to section 18.001 attesting to the reasonableness and

necessity of the services they provided. The medical providers included a hospital, medical

doctors, ambulance service, chiropractors, pharmacy, anesthesia consultants, a surgical acute

care provider, radiological consultants, laboratory consultants, and other medical providers. In

13
The general requirements for a provider’s affidavit concerning the reasonableness and necessity of past medical expenses are set forth in
section 18.001(c). See TEX. CIV. PRAC. & REM. CODE § 18.001(c). In addition, section 18.002 sets forth detailed templates that providers and
records custodians can use to ensure compliance with section 18.001. See id. § 18.002. Under section 18.001(d), a party who intends to present
the affidavit as evidence at trial must serve a copy of the affidavit on all other parties at least 30 days before the start of the plaintiff’s case at trial.
Id. § 18.001(d).
14
Under section 18.001(e), a party who intends to controvert an affidavit must serve a copy of the counteraffidavit on each party (1) within
30 days of receiving the affidavit and at least 14 days before the start of the plaintiff’s case at trial, or (2) with leave of court, before the start of
the plaintiff’s case at trial. Id. § 18.001(c).

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response, Ten Hagen served counteraffidavits prepared by Sklar essentially controverting many

of the claims stated in the Castros’ section 18.001 affidavits.

Before trial, the Castros moved to strike Sklar’s counteraffidavits on the grounds that

(1) he was not qualified to controvert the affidavits of the Castros’ medical providers, and (2) his

counteraffidavits failed to give the Castros reasonable notice of the bases on which he intended

to controvert the claims reflected in the affidavits of the Castros’ medical providers. In addition,

the Castros moved to strike Sklar’s counteraffidavits because they largely focused on his opinion

that the Castros’ injuries were not caused by the accident, which is outside the scope of section

18.001. The trial court granted the motion and struck Sklar’s counteraffidavits without stating

the basis for its ruling.

As part of the evidence it intended to offer at trial, Ten Hagen designated portions of

Sklar’s deposition testimony that it intended to play for the jury, and the Castros apparently filed

a motion to strike this testimony before it was offered. Although the motion itself is not in the

appellate record, it appears from the hearing on it that the Castros made two main arguments in

their motion: (1) the trial court should strike Sklar’s testimony regarding his opinion that the

accident was not the proximate cause of the Castros’ injuries because Ten Hagen’s pretrial

disclosure concerning Sklar’s causation opinions was inadequate, and (2) the trial court should

strike Sklar’s testimony about the reasonableness and necessity of the Castros’ past medical

expenses because it previously struck his section 18.001 counteraffidavits on the same subject.

The trial court denied the motion to strike as to Sklar’s causation testimony and granted the

motion to strike as to his testimony about the reasonableness and necessity of the Castros’ past

medical expenses:

The designation indicates that Dr. Sklar is expected to give opinions with regard
to the motor vehicle accident in question; that it was not a proximate cause of the
personal injuries claimed by the plaintiff, intervenors, and claimants; and Dr.
Sklar will be allowed to testify to that affect.
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 Because his previous affidavits were stricken, he will not be allowed to testify as
to reasonableness and necessity of medical care and medical expenses. Dr. Sklar
is also allowed to testify or to opine as to any pre-existing conditions and ordinary
diseases of life, which were not proximately caused by the subject motor vehicle
accident. That is the Court’s opinion—or ruling on Dr. Sklar.

After the jury rendered its verdict, Ten Hagen filed a bill of exception and offer of proof

attaching the deposition testimony that was excluded by the trial court.

Analysis

On appeal Ten Hagen argues that the trial court abused its discretion when it struck

Sklar’s counteraffidavits before trial. Ten Hagen argues that Sklar’s “testimony and affidavit”

were admissible because (1) he was qualified to opine on the reasonableness and necessity of the

Castros’ past medical expenses, and (2) his affidavits gave reasonable notice of the basis for

controverting the Castros’ claims. But with respect to why Sklar’s counteraffidavits gave

reasonable notice, Ten Hagen’s argument is:

Dr. Sklar explained in detail the types of injuries they had, the usual amount of
treatment required for such injuries, and the costs that would have been expected
based on his experiences with these matters.

Ten Hagen supports this statement with one general citation to his counteraffidavits and

curriculum vitae (spanning 40 pages in the clerk’s record). Within those 40 pages there are a

total of 25 numbered paragraphs under the headings “RECAP OF OPINIONS.” Ten Hagen does

not provide argument as to why these opinions gave the Castros reasonable notice of the bases

for controverting the Castros’ claims. In addition, the Castros’ motion raised a third ground for

striking Sklar’s counteraffidavits that Ten Hagen does not address—namely that the

counteraffidavits exceeded the scope of section 18.001 because they mostly addressed causation

as opposed to reasonableness and necessity. See generally Douglas v. City of Kemp, 05-14-

00475-CV, 2015 WL 3561621, at *3 (Tex. App.—Dallas June 9, 2015, no pet.) (“If an appellant

does not challenge all possible grounds, we must affirm the ruling on the unchallenged

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ground.”). For these reasons, we are unable to conclude that the trial court abused its discretion

by striking Sklar’s counteraffidavits.

Ten Hagen also argues that the trial court abused its discretion by excluding Sklar’s

testimony at trial concerning the reasonableness and necessity of the Castros’ past medical

expenses solely because his counteraffidavits had been struck. Stated differently, Ten Hagen

argues that striking Sklar’s counteraffidavits was not a proper basis for the trial court to exclude

Sklar’s testimony at trial.

To support its argument, Ten Hagen relies on two cases. First, Ten Hagen cites Gutierrez

for the proposition that a defendant who does not serve a counteraffidavit is not “precluded from

introducing evidence controverting the reasonableness and necessity of a plaintiff’s medical bills

and treatment.” See Gutierrez, 2008 WL 5392023, at *12. Gutierrez, however, does not stand

for that proposition.

In Gutierrez our sister court recognized that evidence contravening the affidavits is

properly excluded in the absence of a timely filed 15 counteraffidavit, but held that a defendant

who does not file a counteraffidavit may nevertheless make “arguments contesting affidavits of

reasonable and necessary expenses” during opening statements and closing arguments. Id.

(emphasis added). It did not hold that a defendant could present its own expert witness at trial to

controvert those matters in the absence of a counteraffidavit. See id.

Second, Ten Hagen cites Grove v. Overby, No. 03-03-00700-CV, 2004 WL 1686326, at

*6 (Tex. App.—Austin July 29, 2004, no pet.) (mem. op.). As with Gutierrez, however, Grove

does not support the proposition that a defendant who does not serve a counteraffidavit can

introduce expert testimony at trial to controvert the claimant’s section 18.001 affidavit.

15
Prior to 2007, section 18.001 required affidavits and counteraffidavits to be filed in the trial court. In 2007, section 18.001 was amended
to require that affidavits and counteraffidavits be served, rather than filed—but one reference to “filed” inadvertently remained and was not
removed and replaced with “served” until 2013. Because the arguments in this case do not implicate the most recent amendment to the statute,
we refer to the current version in this opinion. See TEX. CIV. PRAC. & REM. CODE ANN. § 18.001(a)–(b).

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 In Grove, the trial court allowed the defendant, who had not filed a counteraffidavit, to

cross-examine the plaintiff about his injuries and prior medical condition and introduce copies of

some of the plaintiff’s medical records showing the plaintiff’s medical history. Id. The Grove

court said that the trial court did not abuse its discretion by doing so because a claimant’s section

18.001 affidavit did not establish “conclusive evidence of the reasonableness or necessity of the

charges or of causation of the corresponding injuries.” Id. But the defendant in that case did not

seek to offer its own expert’s testimony to controvert the claimant’s section 18.001 affidavit. See

id.

In short, we do not agree that Gutierrez or Grove supports the proposition that Ten Hagen

was entitled to introduce Sklar’s expert testimony at trial to controvert matters contained in the

Castros’ section 18.001 affidavits after Sklar’s counteraffidavits were struck.

One of the purposes of a section 18.001 affidavit is that it “provides for exclusion of

evidence to the contrary, upon proper objection, in the absence of a properly-filed

counteraffidavit.” Beauchamp, 901 S.W.2d at 749. As a result, and in the absence of a proper

counteraffidavit, we cannot say that the trial court abused its discretion when it excluded Sklar’s

trial testimony controverting the Castros’ section 18.001 affidavits. See generally Haygood v.

De Escabedo, 356 S.W.3d 390, 399 (Tex. 2011) (noting section 18.001 provides “for any dispute

over reasonable and necessary expenses to be teed up by affidavit”).

We resolve this issue against Ten Hagen.

CONCLUSION

We conclude that the trial court properly instructed the jury that Ten Hagen was Ross’s

statutory employer at the time of the accident. We also conclude that the evidence is legally

sufficient to support the findings that (1) Ross was acting in the scope of his employment at the

time of the accident, (2) Ross’s negligence alone caused the accident, (3) $150,000 would fairly

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and reasonably compensate Lorena for her past physical pain and mental anguish, and

(4) $10,911.13 would fairly and reasonably compensate Lorena for her past medical care

expenses. Finally, we conclude that the trial court did not abuse its discretion when it excluded

the testimony of Ten Hagen’s rebuttal medical expert concerning the reasonableness and

necessity of Lorena’s past medical expenses.

We affirm the trial court’s judgment.

/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE

150902F.P05

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

TEN HAGEN EXCAVATING, INC., On Appeal from the County Court at Law
Appellant No. 1, Dallas County, Texas
Trial Court Cause No. CC-11-00454-A.
No. 05-15-00902-CV V. Opinion delivered by Justice Lang-Miers.
Justices Francis and Myers participating.
JOSE CASTRO-LOPEZ AND LORENA
CASTRO, Appellees

In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

It is ORDERED that appellees Jose Castro-Lopez and Lorena Castro recover their costs
of this appeal from appellant Ten Hagen Excavating, Inc.

Judgment entered this 29th day of August, 2016.

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