                               Fourth Court of Appeals
                                      San Antonio, Texas

                                  MEMORANDUM OPINION
                                         No. 04-11-00927-CV

                                            Corey A. BELL,
                                               Appellant

                                                  v.

                                        Trinidad M. CASTRO,
                                               Appellee

                     From the 150th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2010-CI-09739
                             Honorable Martha Tanner, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: November 21, 2012

AFFIRMED

           In this personal injury case, Corey A. Bell challenges the award of damages to Trinidad

M. Castro, arguing that there is no evidence of future physical impairment and factually

insufficient evidence of future medical expenses and future physical pain and mental anguish.

We affirm the judgment of the trial court.
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                                         BACKGROUND

       Just before midnight on October 27, 2008, Bell ran a red light, causing his Ford Taurus to

collide with Castro’s Dodge Ram van. There was no dispute that Bell caused the accident.

Castro did not seek medical attention at the scene of the accident; however, San Antonio Police

Department Detective Pablo Arriaga, who responded to the accident, testified that Castro

appeared to be in shock. Arriaga advised Castro to “get checked out.”

       Castro testified that he was very nervous after the accident, and worried about the men in

the other car. He was able to drive his vehicle home. He stated that his left ankle began to swell

and hurt the day after the accident. His left hand also became swollen a few days after the

accident, but later healed. About twenty-nine days after the accident, with the pain in his ankle

persisting, Castro, who works on his feet as a restaurant busboy, sought the care of a

chiropractor. The chiropractor ordered an x-ray and MRI of Castro’s ankle in January 2009.

After three or four visits and no alleviation of pain, the chiropractor recommended that Castro

seek treatment with another doctor. Dr. Sanjay Misra, an orthopedic surgeon, prescribed Castro

medication and administered cortisone injections in his ankle, which did not help his pain.

Castro stated that his ankle hurts when he moves a lot and swells two to three times a week; he

has to be careful not to turn his foot a certain way, otherwise it makes a snapping or cracking

sound and he feels “bone on bone.” He stated that he did not have any problems with his ankle

before the accident, and that he did not injure his ankle in any other way after the accident. He

testified that he continues to have problems with his ankle and that it currently hurts. Castro

further stated that he continues to work as a restaurant busboy, but uses an ankle brace for

support and sometimes uses Icy Hot spray. Castro last saw Dr. Misra in September 2009, almost

two years before trial. During the two years immediately prior to trial, Castro did not see another



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physician for his pain or take any medications. Castro stated that he does not have the financial

ability to pay for medical treatment, and would not have been able to seek medical treatment

were it not for his attorneys.

        Dr. Sanjay Misra was accepted as an expert witness by the trial court. Dr. Misra testified

that he is an orthopedic surgeon who treated Castro beginning in May 2009.                Dr. Misra

interpreted the results of Castro’s x-ray and MRI. The x-ray did not show any broken or

fractured bones in the ankle. The MRI showed swelling in the marrow of the bone due to trauma

from impaction. The MRI showed a 1.5 millimeter-lesion in the ankle bone, which Dr. Misra

termed an osteochondral defect. Dr. Misra explained that an injury of this type does not manifest

immediately after impact, and that it is difficult to repair. Dr. Misra was certain that Castro’s

“injury is definitely painful and is a result of the accident.”

        Dr. Misra first treated Castro with three separate cortisone injections; the last injection

was given in August 2009. Dr. Misra prescribed pain medication at the end of May 2009 that

was never refilled by Castro as of the date of trial. Castro’s medical bills for treatment by Dr.

Misra totaled about $857. His prescription drug bill was $204.34.

        Castro continued to experience pain after the cortisone injections. Dr. Misra thus opined

that Castro would not heal on his own, and recommended in September 2009 that he undergo

surgery called ankle arthroscopy with osteochondral drilling. Dr. Misra explained that without

surgery, the area of the injury would start “to crumble and deteriorate” and “spread,” causing

Castro to develop “total arthritis of the ankle joint.” Dr. Misra stated that the total cost for that

surgery, including surgeon fees, hospital fees, anesthesia fees, and rehabilitation fees would be

about $20,000. After the surgery, Castro would be immobilized for about six weeks in a cast or

boot, and would start physical therapy afterwards.



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       In his medical narrative, which was admitted into evidence, Dr. Misra stated, “I advised

Mr. Castro even after the surgery he will have good and bad days for the rest of his life. As he

gets older he will develop some arthritis in his left ankle and will continue to have chronic

pain . . . . Essentially the patient is going to have some long term physical restrictions. I do not

want him to do any heavy lifting beyond 10-15 lbs. and no overhead reaching activities[;] these

are the restriction limitations he is under now and will be his restriction limitations in the future.”

Dr. Misra further opined that both now and in the future, Castro will need chronic over-the-

counter pain medications like Motrin and Naprosyn, and occasional use of pain killers such as

Ultram. The cost of future care, including doctor visits and medications, was estimated to be

$5,000 a year for the rest of Castro’s life. Dr. Misra testified that the average North American

male has a life expectancy of about 80 years. Castro was 49 years-old on the date of the

accident. Dr. Misra opined that Castro is going to have a ten percent total body impairment in

the future even after the surgery.

       At the charge conference, Bell objected to the submission of a damage question on future

physical impairment.

       The case was submitted to the jury who unanimously found Bell 100% responsible for

the accident. The jury was asked “what sum of money, if paid now in cash, would fairly and

reasonably compensate Trinidad M. Castro for his injuries, if any, that resulted from the

occurrence in questions?” The jury answered as follows:

       a.   Past medical care expenses:                        $6,000
       b.   Future medical care expenses:                      $170,000
       c.   Past physical pain and mental anguish:             $25,000
       d.   Future physical pain and mental anguish:           $75,000
       e.   Future physical impairment:                        $25,000




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None of the listed categories of damages were defined for the jury. The jury was instructed that

it may not compensate twice for the same loss.

        The trial court entered a judgment incorporating the entirety of the $301,000 in damages

awarded by the jury, as well as costs and prejudgment interest. Thereafter, Bell filed a motion

for new trial challenging the sufficiency of the evidence to support the award of damages and a

motion to disregard the jury’s finding on future physical impairment. After Castro agreed to a

remittitur of $265.09 for past medical expenses, Bell’s motions were denied by the trial court.

The trial court then entered a Modified Final Judgment that reduced the damages for past

medical expenses as per Castro’s voluntary remittitur and reduced the amount of prejudgment

interest. Bell timely appealed.

                                            DISCUSSION

        On appeal, Bell challenges three categories of damages awarded by the jury.

   I.      FUTURE PHYSICAL IMPAIRMENT

        Bell first argues that the trial court erred in refusing to grant his motion to disregard the

jury finding for future physical impairment because there is no evidence to support an award for

future physical impairment damages.

Standard of Review and Applicable Law

        The denial of a motion to disregard a jury finding is reviewed as a no-evidence or legal

sufficiency issue. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). When considering

a legal sufficiency challenge, we review the evidence in the light most favorable to the verdict

giving “credit [to] favorable evidence if reasonable jurors could, and disregard[ing] contrary

evidence unless reasonable jurors could not.” Id. at 827. We must determine “whether the

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



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review.” Id. Evidence is legally insufficient when the record discloses: (1) a complete absence

of evidence of a vital fact; (2) the court is barred by rules of law or of 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 establishes conclusively the opposite of

a vital fact. Id. at 810.

        Physical impairment is defined as the loss of a person’s former lifestyle. See Casas v.

Paradez, 267 S.W.3d 170, 188 (Tex. App.—San Antonio 2008, pet. denied). The effect of any

physical impairment must be substantial and extend beyond any pain, suffering, mental anguish,

lost wages, or diminished earning capacity. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d

757, 772 (Tex. 2003); Tagle v. Galvan, 155 S.W.3d 510, 519 (Tex. App.—San Antonio 2004, no

pet.); Patlyek v. Brittain, 149 S.W.3d 781, 785 (Tex. App.—Austin 2004, pet. denied). Thus, to

recover damages for physical impairment, the plaintiff must show: (1) he incurred injuries that

are distinct from, or extend beyond, injuries compensable as pain and suffering, loss of earning

capacity, or other damage elements; and (2) these distinct injuries have had a “substantial” effect.

Tagle, 155 S.W.3d at 519. “Unless the separate and distinct loss is obvious, the plaintiff must

produce some evidence showing the tasks or activities that he can no longer perform.” Plainview

Motels, Inc. v. Reynolds, 127 S.W.3d 21, 39 (Tex. App.—Tyler 2003, pet. denied) (citing

Southern Pac. Transp. Co. v. Harlow, 729 S.W.2d 946, 950-51 (Tex. App.—Corpus Christi

1987), writ dism’d, improvidently granted, 745 S.W.2d 320 (Tex. 1988)).

Analysis

        Castro was awarded $25,000 for future physical impairment. Bell argues there is no

evidence to support this award because there was no testimony that Castro sustained a loss

separate and distinct from pain and suffering or mental anguish. We disagree. Although we



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recognize that Castro did not present evidence showing what tasks and activities he was unable

to enjoy as a result of the accident, there was uncontroverted testimony by Dr. Misra that Castro

would suffer physical impairment in the future.       Dr. Misra testified that Castro would be

immobilized for six weeks after the surgery in a cast or a boot. Further, Dr. Misra stated that

Castro would suffer a ten percent total body impairment even after the surgery and would be

restricted from lifting anything heavier than 10-15 pounds and from reaching overhead. See

Brookshire Bros., Inc. v. Lewis, 997 S.W.2d 908, 922-23 (Tex. App.—Beaumont 1999, pet.

denied) (affirming award for future physical impairment where treating physician testified that

plaintiff suffered a 27% impairment and had a lifting restriction of 20 pounds). Additionally, Dr.

Misra testified that Castro would develop some arthritis in his left ankle as he ages. See

Blankenship v. Mirick, 984 S.W.2d 771, 777-78 (Tex. App.—Waco 1999, pet. denied) (affirming

award of $5,000 for future physical impairment where there was evidence that plaintiff could no

longer do aerobic exercises, she did not walk as well, her knees gave out, and her physician

stated likelihood of developing arthritis was much higher). Viewing this evidence in the light

most favorable to the verdict, and disregarding all evidence to the contrary, we find there is more

than a scintilla of evidence supporting the jury’s award of future physical impairment damages.

See City of Keller, 168 S.W.3d at 810; Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d

817, 826 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). Thus, the trial court did not err in

denying Bell’s motion to disregard the jury’s finding for future physical impairment.          We

therefore overrule Bell’s first issue.

    II.      FUTURE MEDICAL EXPENSES AND FUTURE PHYSICAL PAIN AND MENTAL ANGUISH

          Bell next argues that the evidence is factually insufficient to support the damages

awarded for (1) future medical expenses and (2) future physical pain and mental anguish.



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Standard of Review and Applicable Law

       We review an excessive damages claim using a factual sufficiency analysis. See Pope v.

Moore, 711 S.W.2d 622, 624 (Tex. 1986). Therefore, we shall examine all the evidence to

determine whether the award is supported by sufficient evidence and order a remittitur only if the

award is so against the great weight and preponderance of the evidence as to be manifestly

unjust. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Pool v. Ford Motor

Co., 715 S.W.2d 629, 635 (Tex. 1986); see also Casas, 267 S.W.3d at 185.

       “[T]he jury [generally has broad] discretion to award damages within the range of

evidence presented at trial.” Gulf States Utils., Co. v. Low, 79 S.W.3d 561, 566 (Tex. 2002);

Bundick v. Weller, 705 S.W.2d 777, 783 (Tex. App.—San Antonio 1986, no writ). To that end,

we are mindful that there is no certain standard to measure personal injury damages, and each

case must stand on its own facts and circumstances. See Baptist Mem’l Hosp. Sys. v. Smith, 822

S.W.2d 67, 79 (Tex. App.—San Antonio 1991, writ denied). “The jury’s findings may not be set

aside merely because its reasoning in arriving at the amount of damages is unclear.” Vela v.

Wagner & Brown, Ltd., 203 S.W.3d 37, 49 (Tex. App.—San Antonio 2006, no pet.). When the

trial evidence supports a range of damages, an award within that range is an appropriate exercise

of the jury’s discretion, and a reviewing court is not permitted to speculate on how the jury

actually arrived at its award. Drury Sw., Inc. v. Louie Ledeaux #1, Inc., 350 S.W.3d 287, 292

(Tex. App.—San Antonio 2011, pet. denied); see also Vela, 203 S.W.3d at 49.

       Nonetheless, we recognize that “[j]uries cannot simply pick a number and put it in the

blank.” See Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996).

Moreover, this court has a “‘duty to exercise sound judicial judgment and discretion in the

ascertainment of what constitutes reasonable compensation for the injuries suffered.’” Smith,



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822 S.W.2d at 79.      In assessing personal injury damages, the jury has wide latitude in

determining the amount of the award. Tagle, 155 S.W.3d at 518; Sw. Tex. Coors, Inc. v.

Morales, 948 S.W.2d 948, 951 (Tex. App.—San Antonio 1997, no writ).                The process of

awarding damages for amorphous, discretionary injuries such as pain and suffering is inherently

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

Briggs, 107 S.W.3d 739, 750 (Tex. App.—Fort Worth 2003, no pet.). The element of pain and

suffering is not subject to precise mathematical calculations or objective analysis and is

particularly within the province of the jury to resolve and to determine appropriate amounts. Id.

at 750-51; Morales, 948 S.W.2d at 951-52.

       Texas follows the “reasonable probability” rule for future damage for personal injuries.

See City of San Antonio v. Vela, 762 S.W.2d 314, 320 (Tex. App.—San Antonio 1988, writ

denied); Tagle, 155 S.W.3d at 519. The plaintiff must show there is a reasonable probability that

such medical expenses will be incurred in the future. Whole Foods Market Sw., L.P. v. Tijerina,

979 S.W.2d 768, 781 (Tex. App.—Houston [14th Dist.] 1998, pet. denied). An award of future

medical expenses is a matter primarily for the trier of fact to determine, and no precise evidence

is required. Vela, 762 S.W.2d at 321; Whole Foods, 979 S.W.2d at 781. The trier of fact may

base its award on the nature of the injuries, the medical care rendered before trial, and the

condition of the injured party at the time of trial. Vela, 762 S.W.2d at 321. In order to “sustain a

finding on future medical expenses, the plaintiff is not required to establish the future medical

consequences of his injury by expert medical testimony grounded on ‘reasonable medical

probability.’” Id.




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Analysis

       Bell contends that the jury’s award of $170,000 in damages for future medical expenses

consisted of $20,000 for future surgery as well as $5,000 per year for pain medications and

doctor visits for 30 years (i.e., the remainder of Castro’s life) for a total of $150,000. Bell

maintains that this award constitutes a double recovery because according to Dr. Misra, the

proposed surgery will allow Castro’s ankle to heal, and if the ankle is healed, Castro should not

need an additional $150,000 for pain medications for the rest of his life. Thus, he argues, the

award of both the cost to perform a surgery to alleviate pain and the cost of future pain

medication for the rest of Castro’s life constitutes an impermissible double recovery. See Weeks

Marine, Inc. v. Garza, 371 S.W.3d 157, 162 (Tex. 2012) (“The basis of a double recovery

challenge is that a party recovered twice for one injury.”).

       We disagree that the award for future medical expenses constitutes an impermissible

double recovery. Bell misreads Dr. Misra’s use of the term “heal” at trial. When asked about

the specifics of the proposed arthroscopy with osteochondral drilling surgery, Dr. Misra

answered that a hole would be drilled into the ankle lesion to “allow it to heal” and to inject stem

cells. He further explained that during the surgery, he would drill into the talar dome of the

ankle so that blood could be released from the bone marrow in hopes that “good cells . . . come

back and heal that defect which has been impacted.” Dr. Misra did not, however, state that the

surgery would completely “cure” Castro’s ankle. He specifically stated that even after the

surgery, Castro would continue to have chronic pain and would have long-term physical

restrictions. Dr. Misra stated that Castro would continue to need medications even after surgery,

including over-the-counter medications such as Motrin and Naprosyn, and the occasional use of

a pain killer such as Ultram. Dr. Misra testified that these medications would cost around $5,000



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per year, and that doctor visits would be necessary to refill the prescription medications. We

conclude this evidence is sufficient to support an award of future medical expenses for the

remainder of Castro’s life. See Vela, 762 S.W.2d at 321 (award of future medical expenses is a

matter primarily for the trier of fact to determine, and no precise evidence is required).

       Additionally, we conclude the evidence is sufficient evidence to support an award for

future ankle surgery. Dr. Misra testified that he first tried less aggressive treatments for Castro’s

ankle, yet the pain persisted and he opined that it would not improve without the recommended

surgery. Dr. Misra stated that the cost of surgery would be about $20,000, including fees for the

hospital, surgeon, anesthesiologist, and rehabilitation. Considering all the evidence in the record,

the jury could have reasonably concluded that there is a “reasonable probability” that Castro

would incur surgery expenses in the future. See id. Again, we hold that this evidence is

sufficient to support the jury’s award for future medical care expenses, including the cost of

surgery and drugs. See id. The evidence presented at trial as to these expenses was not so weak

as to be clearly wrong, unjust, or against the great weight and preponderance of the evidence.

See Dow Chem., 46 S.W.3d at 242. Accordingly, we overrule Bell’s complaint regarding future

medical care expenses.

       Finally, Bell argues that there is insufficient evidence to support the award for future

physical pain and mental anguish damages, and that such award constitutes a double recovery.

Bell again argues as follows: “Given the absence of any explanation as to the need for pain

medications if the recommended surgery takes place, there is insufficient evidence to support an

award of $75,000 for future physical pain and mental anguish. Ultimately, this award is nothing

other than additional compensation for the same injury to Castro’s ankle.”




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         As previously discussed, we disagree with Bell’s premise that Castro must choose

between the surgery and future medical care. The jury heard evidence that Castro will continue

to suffer chronic ankle pain in the future, even after the recommended surgery. Additionally, Dr.

Misra stated that Castro will develop some arthritis in his left ankle as he ages. On this record,

we cannot say the jury’s award of $75,000 for future physical pain and mental anguish 1 is

against the great weight and preponderance of the evidence. Thus, we conclude the evidence is

factually sufficient to support the jury’s award for future physical pain and mental anguish.

Accordingly, we overrule Bell’s final issue.

                                                   CONCLUSION

         Having overruled Bell’s issues on appeal, we affirm the judgment of the trial court.



                                                           Phylis J. Speedlin, Justice




1
  Because Castro did not identify a specific “high degree of mental pain and distress” experienced by him, or a
substantial disruption of his daily routine, the evidence in this record is insufficient to support an award for future
mental anguish. See Service Corp. Intern. v. Guerra, 348 S.W.3d 221, 232 (Tex. 2011). However, Bell did not
challenge the charge which asked for a lump sum for both future physical pain and mental anguish damages.
Because Bell did not draw the trial court’s attention to the insufficiency of the evidence to support an award of
future mental anguish damages, separate and apart from future physical pain damages, during the charge conference,
in closing arguments, or in a motion for new trial, he is limited to challenging the sufficiency of the evidence
supporting the damage award as a whole. See Ake v. Monroe, No. 04-05-00751-CV, 2006 WL 3017181, at *4, (Tex.
App.—San Antonio Oct. 25, 2006, no pet.) (mem. op.) (citing Thomas v. Oldham, 895 S.W.2d 352, 359-60 (Tex.
1995), and Tagle, 155 S.W.3d at 514-16).

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