                        In the
                   Court of Appeals
           Second Appellate District of Texas
                    at Fort Worth
                 ___________________________
                      No. 02-17-00276-CV
                 ___________________________

                  WILLIAM BLEVINS, Appellant

                                V.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee



               On Appeal from the 96th District Court
                      Tarrant County, Texas
                  Trial Court No. 096-259556-12


         Dissenting Memorandum Opinion by Justice Birdwell
                  DISSENTING MEMORANDUM OPINION

      The faultless victim of a high-impact automobile collision, Appellant William

Blevins, sustained uncontroverted, significant head trauma, objectively evidenced by

temporary loss of consciousness, short-term memory loss (amnesia), mental

disorientation, a subgaleal hematoma (bleeding between the scalp and the skull) to the

top of his head, “soft tissue swelling overlying the entire left side of the head,” and a

sizable headache. 1 Such injuries required emergency transport to a hospital for

treatment for pain and neurological evaluation, including a CT scan to rule out

intracranial hemorrhage, eventually resulting in a discharge diagnosis of concussion

with the prescription of pain medication and medical follow-up, as necessary.

Describing these acute, objective, and medically-documented injuries as “limited and

relatively insignificant,” the majority affirms the jury’s award of no damages for past

physical pain. See Majority Op. at 28. Because the decisions of our court and of other

Texas courts compel the opposite result, I would hold that the jury’s finding that

Blevins sustained no compensable past physical pain whatsoever was so against the




      1
       In addition to these injuries, Blevins sustained an abrasion on his right leg
from his knee to his hip. Because the record reflects that the primary dispute between
the parties dealt with the neuropsychological impact and valuation of Blevins’s
undisputed head trauma, I address only that portion of the evidentiary record.


                                           2
great weight and preponderance of the evidence as to be manifestly unjust, thereby

requiring a new trial. I, therefore, dissent.2

Jury’s zero-damages award for past physical pain is contrary to the evidence

       Texas courts have traditionally held that when a factfinder receives uncontested

evidence establishing a plaintiff’s objective personal injuries, a zero-damages verdict

for past physical pain must be reversed and a new trial ordered. See generally Rumzek v.

Lucchesi, 543 S.W.3d 327, 332–33 (Tex. App.—El Paso 2017, pet. denied) (collecting

cases); see also Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 775 (Tex. 2003)

(explaining that a verdict awarding no damages for pain and suffering should not be

upheld on appeal if there is “objective, undisputed evidence of a significant injury and

the jury could not have compensated the injured party in some other category of

damages”); Lowery v. Berry, 269 S.W.2d 795, 796–97 (Tex. 1954) (reversing jury’s

verdict that child suffered no damage due to motor vehicle accident, despite evidence

of skull fractures and head lacerations, because verdict was “not only unsupported by

any evidence, but [was] directly contrary to all the evidence”); Monroe v. Grider, 884

S.W.2d 811, 820 (Tex. App.—Dallas 1994, writ denied) (“When uncontroverted

evidence of an objective injury exists, a jury finding that the plaintiff suffered no past

pain and suffering is against the great weight and preponderance of the evidence.”)


       Because I concur with the majority’s resolution of the other grounds for
       2

appeal asserted by Blevins, I address only his factual sufficiency challenge by way of
my dissent.


                                                 3
(cited with approval in Golden Eagle Archery); Hammett v. Zimmerman, 804 S.W.2d 663,

664 (Tex. App.—Fort Worth 1991, no writ) (“When there is uncontroverted evidence

of an objective injury, a jury finding that the plaintiff suffered no past physical

impairment and pain is against the great weight and preponderance of the evidence.”)

(cited with approval in Monroe); cf. Estrada v. Dillon, 44 S.W.3d 558, 561 (Tex. 2001)

(affirming application of Monroe and Hammett objective injury analysis to zero-damages

award for past physical impairment).

      The principle of objective injury is historically well-developed by this court.

For example, in Hammett, we explained that to uphold a jury’s zero-damages finding in

the face of uncontroverted evidence of objective injury, the evidence must have

provided the jury a reason for finding that “the injured party’s injury was

unaccompanied by any pain and suffering.” 804 S.W.2d at 665. Moreover, we set forth

numerous examples of objective injuries that required reversal and a new trial given a

zero-damages verdict for past pain and suffering, including, inter alia, skull and facial

fractures, burns, broken bones, cuts, lacerations, and concussion. Id. at 666.3 Based


       3
         These exemplars of objective injury continue to be cited in our opinions and
the opinions of our sister courts, even after Golden Eagle Archery. See Davis v. Vaughters,
No. 01-17-00612-CV, 2018 WL 5661317, at *6 (Tex. App.—Houston [1st Dist.]
Nov. 1, 2018, no pet.) (mem. op.) (citing Hammett exemplars); Rumzek, 543 S.W.3d at
333 & n.4 (same); Laquey v. Cox, No. 02-17-00005-CV, 2017 WL 4413353, at *2 (Tex.
App.—Fort Worth Oct. 5, 2017, no pet.) (mem. op.) (same); Enright v. Goodman
Distrib., Inc., 330 S.W.3d 392, 398 (Tex. App.—Houston [14th Dist.] 2010, no pet.)
(same); Cesar v. Torres, No. 13-07-00471-CV, 2009 WL 2914395, at *3 (Tex. App.—
Corpus Christi–Edinburg Aug. 31, 2009, no pet.) (mem. op.) (same).


                                            4
upon the uncontroverted testimony of the plaintiffs’ treating physician that his

comparative review of radiological studies, performed before and after the underlying

motor vehicle accident, revealed a marked lumbar and sacral misalignment in one of

the plaintiffs consistent with her complaints of lower back pain, we held that the jury’s

zero-damages verdict for past pain and suffering of that plaintiff was against the great

weight and preponderance of the evidence, thereby requiring reversal and a new trial.

Id. at 666–68. Stated differently, we held that no rational jury could find that one of

the plaintiffs suffered no pain whatsoever. See id.4

       As to the other plaintiff in Hammett, although the same treating physician

reached a similar diagnostic conclusion based upon her subjective complaints and his

physical examination, there were no radiological studies confirming the diagnosis as

there were for the other plaintiff. Accordingly, we held that the purely subjective

nature of her complaints justified the same jury in finding that she suffered no pain

whatsoever. Id. at 668–69.5 Comparing as it does the injuries sustained by similarly


       4
        The majority cites Hammett without acknowledging this application of the
objective injury principle and without expressly overruling it. See Majority Op. at 23,
28. See also Lamb v. Franklin, 976 S.W.2d 339, 341 (Tex. App.—Amarillo 1998, no pet.)
(citing Hammett and stating that “[t]o uphold a jury’s finding that an injured party
incurred no damages for past pain and suffering, the jury must have found by a
preponderance of the evidence that no pain and suffering accompanied the injury”).
       5
        Although both of the plaintiffs in Hammett waited to seek medical treatment
until the day after the accident, see id. at 664, 667, 668, their treating physician obtained
radiological confirmation of only the former’s diagnosis because her neck injury was
sufficiently “intractable” that he hospitalized her for a neurological consult and spinal


                                             5
situated plaintiffs in the same accident, Hammett remains this court’s best example for

distinguishing objective from purely subjective injuries when addressing zero-damages

challenges, confirming that jurors may exercise their prerogative to disbelieve

evidence of the latter,6 but not the former. See Rumzek, 543 S.W.3d at 335 (discussing

Hammett as exemplar of this court’s zero-damages decisions); see also 28 Tex. Jur. 3d

Damages § 279 (2019) (citing Hammett as primary authority for objective injury

analysis).

       The majority recognizes this traditional, well-developed analysis, stating that

when “testimony about pain and mental anguish is accompanied by uncontroverted,

objective evidence of an injury—for an obvious example, loss of a limb, or broken

bones—appellate courts are more likely to overturn a zero-damages award for past

pain and mental anguish.” Majority Op. at 20 (citing In re State Farm Mut. Auto. Ins.,

483 S.W.3d 249, 263 (Tex. App.—Fort Worth 2016, orig. proceeding)). Nevertheless,

anticipating that the supreme court will eventually confirm its implication in Golden


manipulation under anesthesia, id. at 667. The latter required no such hospitalization
or treatment. Id. at 668. As a result, exercising their exclusive prerogative to assess the
credibility of the evidence, the jury could have disbelieved the latter’s purely subjective
profession of pain, but not the objective evidence documenting the former’s.
       6
        See also McGuffin v. Terrell, 732 S.W.2d 425, 428 (Tex. App.—Fort Worth 1987,
no writ) (“The jury was accorded the privilege of considering medical reports
indicating no objective symptoms and were not compelled to accept Dr. Murphy’s
opinion deductions. The jury apparently did not believe appellant’s testimony as to
the severity of her injuries nor her alleged pain and disability. The jury may disbelieve
an interested witness even if uncontradicted.”).


                                            6
Eagle Archery that an objective injury can be sufficiently insignificant or de minimis as to

permit a jury to exercise its credibility prerogative to disbelieve that the plaintiff

experienced any physical pain associated therewith,7 the majority relies on certain pre-

and post-Golden Eagle Archery decisions that either conflict with or are factually

distinguishable from our analysis in Hammett. Majority Op. at 21.

       For example, in In re State Farm, upon which the majority primarily relies, we

recited the insignificant-injury principle and applied it when the plaintiff was stopped

at a red light, the defendant bumped the plaintiff’s car from behind at less than four

miles per hour, the plaintiff’s car sustained minor damage, the plaintiff left the scene

of the accident without feeling injured, the plaintiff drove his vehicle to work and

worked the rest of the day without problems, and the plaintiff later received diagnoses

of muscle spasms and a disc protrusion or herniation. 483 S.W.3d at 252–60. Under

those circumstances, we held that the jury could have reasonably disregarded the

objective evidence as related to a pre-existing condition and found that the plaintiff


       7
        Although the supreme court suggested in Golden Eagle Archery that a zero-
damages verdict for past pain and suffering could be affirmed if the evidentiary record
revealed that the injury was not “significant,” the court did not and has yet to discuss
what would constitute such an “insignificant” or de minimis objective injury. See 116
S.W.3d at 775 (explaining that a verdict awarding no damages for pain and suffering
should not be upheld on appeal if there is “objective, undisputed evidence of a
significant injury and the jury could not have compensated the injured party in some
other category of damages”). As cited above, the court has affirmed, both implicitly
and expressly, the Hammett objective injury analysis for zero-damages awards in
personal injury cases, which is clearly predicated upon a jury’s credibility prerogative.
See supra at 4.


                                             7
“did not suffer any physical pain and suffering as a result of the accident.” Id. at 264.

We explained in part,

              It was undisputed that the accident occurred at a very low speed,
       causing less than $800 in damage to [the plaintiff’s] car and no damage
       to [the defendant’s] car. The jury heard conflicting evidence about the
       severity of [the plaintiff’s] injuries and whether his injuries were caused
       by the collision.[8] [The plaintiff] was instructed to return to the
       CareNow clinic in seven to fourteen days if his condition did not
       improve or return immediately if his condition worsened, but there was
       no evidence that he returned to the clinic.

Id.

       Similarly, other post-Golden Eagle Archery decisions affirm zero-damages

verdicts, but only when evidence of the existence or likely cause of the objective injury

invoked the jury’s credibility prerogative, not when the existence or likely cause of the injury

was uncontested. See Davis, 2018 WL 5661317, at *6–7 (basing holding on evidence that

after a car accident, the responding officer reported that the plaintiff and her

passenger were “not injured” and that her vehicle sustained “minimal damage,” the

plaintiff did not seek treatment for several days thereafter, she gave an inconsistent

history of pain associated with the accident, and the disc protrusion or herniation

revealed by MRI could have been age-, not trauma-related); Rumzek, 543 S.W.3d at

334–35 & nn. 5–6 (explaining that after a car wreck, the plaintiff was “diagnosed

       Not only did the radiological studies performed on the plaintiff after the
       8

accident alternatively reveal no objective findings by x-ray, then subsequently either a
protruding or herniated disc by MRI, the plaintiff’s pre-accident medical history
included at least two previous whiplash injuries that could have been the source of
such conflicting findings. See In re State Farm, 483 S.W.3d at 254–56.


                                               8
solely with soft tissue injuries” and his “x-rays were negative for any physical injury,

and instead only indicated that [he] was suffering from degenerative disc disease”);

Laquey, 2017 WL 4413353, at *2 (when jury awarded damages for past pain and past

and future medical expenses to the plaintiff arising out of car accident, holding that

evidence of purely subjective complaints of pain was sufficient to justify zero-damages

award for future pain); Enright, 330 S.W.3d at 395, 399 (noting that although air

conditioning condenser unit fell and hit plaintiff, he merely pushed the unit away,

neither showed nor expressed any evidence of pain, then declined to report the

accident or receive immediate treatment at a hospital); Rochester v. Acevedo, No. 02-04-

00177-CV, 2005 WL 1120023, at *1 (Tex. App.—Fort Worth May 12, 2005, no pet.)

(mem. op.) (basing holding on evidence that after an accident in which the front

bumper of the defendant’s vehicle struck the middle back bumper of the plaintiff’s

vehicle, the responding police officer, discerning no injuries, made no report of the

accident, and the plaintiff drove himself home, waiting eleven days before seeking

treatment for pain); see also Biggs v. GSC Enters., 8 S.W.3d 765, 767 (Tex. App.—Fort

Worth 1999, no pet.) (holding same when, at the scene of the accident, the plaintiff

told the responding officer that he was not hurt, and his medical history included a

chronic, pre-existing back condition that the jury could have associated with any

complaints of pain); Blizzard v. Nationwide Mut. Fire Ins., 756 S.W.2d 801, 804–06 (Tex.

App.—Dallas 1988, no writ) (noting in evidentiary summary that after a car accident,

the plaintiff got out of her car, exchanged information with the other driver, went

                                           9
home, did not seek medical attention until the next day, and was never hospitalized);

McGuffin, 732 S.W.2d at 426 (noting that after a car accident, the plaintiff did not

complain of any injury at the scene, responded that “she did not know” whether she

was injured, returned home, later complained of pain, and first showed an objective

injury three weeks after the accident).

      Summarizing these decisions, an objective injury appears to be sufficiently

insignificant or de minimis to sustain an award of zero damages for past physical pain

when (1) the severity of the accident involves a low to moderate impact resulting in

little or moderate damage to the plaintiff’s vehicle, (2) the plaintiff does not evidence

the objective injury at the scene of the accident or personally treats it as insignificant

by declining to seek immediate medical diagnosis and treatment, (3) subsequent

diagnostic examination reveals no or minimal objective sequelae of injury that are not

also attributable to other causes such as ordinary degeneration or a pre-existing injury

or condition, and (4) the plaintiff’s subjective medical history and complaints are the

primary basis for diagnosis and treatment. When sufficient evidence of these criteria

exists, a jury is deemed within its credibility prerogative to disregard or disbelieve

objective evidence of physical injury.

      Applying these criteria, however, the objective, undisputed evidence that

Blevins suffered significant head trauma does not support the majority’s insignificant-

injury conclusion. Initially, as to the severity of the accident, the uncontested

photographic and testimonial evidence demonstrated that at least two separate

                                           10
vehicles struck Blevins with sufficient force to completely destroy both front wheel

wells of his vehicle and trigger the deployment of the driver-side air bag. Such damage

required his forceable extraction from the vehicle and completely disabled its

continued operation. Accordingly, nothing about the severity of the accident

permitted the jury to disregard its occurrence as a possible source of traumatic

personal injury.

      Second, the undisputed evidence shows that Blevins sustained significant head

trauma not attributable to any other cause but the collision. Not only did he lose

consciousness as a result thereof, a disinterested bystander motorist who witnessed

the accident thought Blevins was dead as she approached his vehicle to help. This

same Good Samaritan thereafter observed him regain consciousness, but described

his level of consciousness as confused and disoriented: “The man, you could tell

something was wrong with him because his eyes was open, but he was not

comprehending. . . . You could see in his eyes that the lights--the lights were on, but

nobody was home; there was just nothing there.”9


      9
       Dr. Andrew Houtz confirmed this motorist’s “accident scene” observation of
Blevins’s loss of consciousness and mental disorientation, attributing them to the
high-impact nature of the collision:

      [T]he severity of the blow to his head was of such force that it . . .
      knocked him out.         Even when he regained consciousness, he
      experienced a period of confusion and disorientation, which, again, lets
      us know that his brain was not processing the way it should have been
      for a period of time after the head injury.


                                          11
      Blevins thereafter required emergency transport to a hospital for treatment for

pain and neurological evaluation. With a working diagnosis of head trauma, the EMTs

documented his loss of consciousness, memory loss, and mental disorientation,

including repetitive questioning, as well as a hematoma to the top of his head:

             Arrived to find pt. c-spined and backboarded in the back of
      ambulance on[ ]scene. Medstar crew advised that pt. was restrained
      driver o[f] one of the vehicles in a 4 car mvc. Pt. had hematoma to head
      with repetitive questioning, with positive LOC [loss of consciousness].
      Pt. c/o head pain. Pt. relays that he doesn’t know what happen[ed], and
      kept asking what my na[m]e was. Pt. advised that he remembers being in
      the ambulance, but no[t] how he ended up there. Pt. had hematoma to
      top of head. Pt. was treated, monitored and transported without further
      injury or illness.

In documenting his mental disorientation, the EMTs employed the Glasgow Coma

Scale, a “scale for measuring the level of consciousness, especially after a head injury,

in which scoring is determined by three factors: amount of eye opening, verbal

responsiveness, and motor responsiveness.” See Rio Grande Reg’l Hosp., Inc. v. Villarreal,

329 S.W.3d 594, 601 n.6 (Tex. App.—Corpus Christi–Edinburg 2010, pet. dism’d by




             ....

            So we know that an event happened that was severe enough to
      kind of knock his brain offline for a particular period of time.

State Farm never contested these observations of the Good Samaritan, nor this
portion of Dr. Houtz’s testimony identifying the high-impact nature of the accident as
their source.


                                           12
agr.)   (citing   Glasgow   Coma     Scale,        available   at   https://medical-dictionary.

thefreedictionary.com/Glasgow+Coma+Scale (last visited Feb. 26, 2019)).

        Contrary to the majority’s suggestion that Blevins’s “near perfect total” on the

Glasgow assessment left the jury free to disregard his injury as insignificant, see

Majority Op. at 9–10, 28–29, the EMTs objectively confirmed he suffered from some

degree of mental confusion on two of the three Glasgow assessments they had

conducted before transporting him to the hospital. Finally, the EMTs documented

significant “Headache/Migraine” of a severity of 5 on a scale of 10. At the time they

left the scene of the accident, there was clear, uncontested objective evidence of

significant head trauma, and the pain associated therewith, and absolutely no basis for

the jury to conclude that Blevins suffered no pain whatsoever as a result of the

collision.

        Third, upon arrival at the hospital, the emergency room staff admitted Blevins

complaining of headache and repetitive questioning. Before he was seen by a

physician, the staff performed three separate Glasgow assessments on Blevins, each

documenting some degree of mental confusion consistent with the EMTs’ previous

assessments.

        The attending physician’s notes subsequently confirmed Blevins’s chief

complaint as headache with loss of consciousness and memory loss:

        William Blevins is a 54 y.o. male who presents to the ED for HA
        [headache] s/p MVC. Pt was the restrained driver in a PT cruiser. Pt
        states that he does not remember the wreck. According to nursing, Pt

                                              13
         was c/o the HA at the top of his head. Positive neck pain but negative
         CP [chest pain] or ABD [abdominal] pain. The first thing that Pt
         remembers after the wreck is being in the ambulance. Pt states that his
         left thumb hurts when he moves it. According to mother, another driver
         ran a red light and hit Pt on the passenger side. Pts car ended up in a tree
         and 4 other cars were involved. Pt does not remember when his last
         tetanus shot was. Pt is not on any medication at home. There are no
         other Sx [symptoms] at this time.

By his review of systems, the physician noted Blevins was “positive” for headaches

and neck pain, but negative for dizziness, light-headedness, or mental confusion. By

his physical exam, the physician observed a contusion to the top of the head, but

found Blevins to be neurologically intact, giving him a Glasgow assessment with no

deficits. The doctor did note, however, that Blevins was “[a]mnestic of events”

leading to his transport and admission for emergency diagnosis and treatment.

         As a result of his initial assessment, the doctor prescribed intravenous

morphine for moderate to severe pain, every two hours as needed. As to his

differential diagnosis, the doctor included the following possible conditions: “ICH

[intracranial hemorrhage], Concussion, Contusion, Fx [fracture], Sprain.” To rule out

one or more of these conditions, the doctor ordered x-rays of the chest, pelvis, left

knee, and right leg, and CT scans of the head and spine. The radiologist’s impression

from the CT scan of the head was: “No definite acute intracranial process. There is

soft tissue swelling overlying the entire left side of the head. No underlying fracture is

seen.”




                                             14
      After Blevins spent approximately five hours in the ER, the doctor eventually

discharged him as suffering from a concussion, prescribed medications for both pain

and nausea, and recommended follow-up with his family physician, as needed. The

doctor’s discharge instructions indicated that a concussion requires a few days for

recovery and that, during that time, Blevins might experience continued headaches.

But the doctor further instructed Blevins to seek immediate medical care if he

experienced severe, persistent headaches.10

      Finally, Blevins’s subjective medical history and complaints were not the primary

basis for his emergent diagnosis and treatment. At the time of his discharge,

diagnostic evaluation of Blevins, post-accident, revealed clear, objective evidence of

significant head trauma in the form of (1) a concussion, (2) a hematoma/contusion to

the top of, and swelling along the entire left side of, his head, as well as (3) the pain

associated therewith. Indeed, his loss of consciousness, memory loss, hematoma,

swelling, and mental confusion were all objective symptoms of or radiological findings

consistent with a traumatic head injury, and the discharge diagnosis of concussion has

previously been noted by this court in Hammett and held by our sister courts to

remove a zero-damages verdict from a jury’s credibility prerogative. See Hammett, 804


      10
        Even though consistent with his discharge instructions, to the extent the
record reflects that Blevins continued to suffer and receive treatment for headaches
for some time after the accident, the existence and extent of his post-discharge pain was
a matter of purely subjective interpretation, such that the jury was free to wholly
discount this testimony, even under Hammett.


                                           15
S.W.2d at 666 (citing Del Carmen Alarcon v. Circe, 704 S.W.2d 520, 521 (Tex. App.—

Corpus Christi 1986, no writ) (holding jury “legally bound to make some award” for

past physical pain due to reverse curvature of spine, cerebral concussion, and cervical

and lumbar sprains)).

       In fact, in Horn v. State Farm Insurance, our sister court in Tyler held that the

jury’s zero-damages verdict in a factually similar uninsured motorist case was against

the great weight and preponderance of the evidence because the uncontested,

objective evidence established that the plaintiff sustained a “moderately severe”

cerebral concussion, as well as sprains of the neck and cervical spine. 567 S.W.2d 266,

268 (Tex. App.—Tyler 1978, no writ). Similar to Blevins, the insured was the victim

of a high-impact collision that knocked her vehicle into a ditch; she experienced

bleeding and bruising of her face, neck, and right shoulder; and she was transported

by ambulance to a hospital where she was admitted for evaluation and treated with

pain medication for headache. Id. at 267–68. Although the jury awarded sums for past

medical and hospital care, as well as loss of past earnings, it found that the insured

suffered no past physical pain and suffering. Id. at 267. In reversing and remanding

for a new trial, the court of civil appeals held,

              Although the amount of damages is ordinarily left to the
       discretion of the jury under the evidence before them, the jury cannot
       ignore the undisputed facts and arbitrarily fix an amount neither
       authorized nor supported by the evidence. In the instant case, there is
       nothing in the record indicating that [the insured] was not injured or that
       she did not suffer any pain. The undisputed facts disclose that [she] did
       suffer pain. Thus, the finding of the jury that [she] suffered no damages

                                             16
       is not only unsupported by any evidence, but directly contrary to all the
       evidence. In our view[,] the verdict was manifestly wrong[,] and the trial
       court should have granted a new trial.

Id. at 268 (citations omitted).

       Applying Hammett and Horn, there is nothing in this record indicating that

Blevins was not injured by the collision or that he did not suffer any pain as a direct

result thereof. Accordingly, there was absolutely no basis for the jury to disregard the

objective evidence of head trauma and conclude that Blevins suffered no pain

whatsoever as the immediate result of the collision.

       The majority’s insignificant-injury analysis appears to predicate its holding that

the jury was within its credibility prerogative to disregard this evidence, at least in part,

on the grounds that Blevins “never set the stage for an award of damages” based on

his objective injuries, particularly by failing to reference the evidence pre-admitted in

the form of his medical and hospital records. See Majority Op. at 23, 27–31. While it is

true that the primary foci of his evidentiary presentation were the alleged long-term

neuropsychological consequences of the collision, as particularly articulated through

the testimony of Dr. Houtz, Blevins did not expressly so limit his request for

damages. For example, he specifically described his concussion as a “severe injury”

during opening statement. He also told the jury about the internal bleeding in and

swelling of his head.

       Because the parties waived a transcription of closing arguments, the record

does not reveal what Blevins urged the jury to answer in response to the damages

                                             17
question in the charge, but there is no doubt he asked the jury to compensate him for

“[p]hysical pain and mental anguish sustained in the past” in an amount more than

zero. Moreover, given the fact that State Farm agreed to the admission of Blevins’s

medical and hospital records for the jury’s consideration on this very question––and

never once challenged either his discharge diagnosis or any of the objective findings

of head trauma made by the EMTs or the emergency room staff in reaching such

diagnosis, including those of the diagnostic radiologist and the treating physician,11––

it is highly unlikely that State Farm actually urged a zero-damages verdict upon the

jury, particularly when it could have reasonably and more credibly argued for a

valuation of damages well within the approximately $70,000 settlement credit to

which it was entitled and still obtained a “take nothing” defense judgment.




      11
         The majority appears to suggest that because Blevins was sparing in his
references to pain and never specifically referenced the objective findings supporting
its existence in his medical and hospital records, our factual sufficiency review should
not include such evidence. Majority Op. at 23. We have been granted no such
discretion, however, to presume to know what evidence the jury did or did not
consider during its deliberations, or to otherwise depart from the general rule that we
must consider “all of the evidence”—including admitted exhibits—in our factual
sufficiency review. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).


                                          18
       For all of these reasons, I would hold that the jury’s finding of zero damages

for Blevins’s past physical pain was so against the great weight and preponderance of

the credible evidence as to be clearly wrong and unjust and was therefore based on

factually insufficient evidence. I would sustain his second issue and remand for a new

trial. Because the majority does not, I dissent.

                                                    /s/ Wade Birdwell

                                                    Wade Birdwell
                                                    Justice

Delivered: February 28, 2019




                                            19
