                                 NO. 07-06-0368-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                    JULY 24, 2007

                         ______________________________


                        ARTURO RODRIGUEZ, APPELLANT

                                          V.

                 BROWNING-FERRIS INDUSTRIES, INC.,
        BROWNING-FERRIS SERVICES, INC., A/K/A BFI, INC., APPELLEES

                       _________________________________

         FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;

               NO. CI-05H-109; HONORABLE ROLAND SAUL, JUDGE

                        _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                              MEMORANDUM OPINION


      Appellant, Arturo Rodriguez, appeals the judgment entered in this cause following

a jury verdict rendered against Appellee, BFI Waste Services of Texas, L.P. (hereinafter
“BFI”),1 for personal injuries. A jury found both parties were equally negligent in causing

Rodriguez’s injuries and awarded Rodriguez $20,000 for lost wages, but nothing for

physical pain, mental anguish, or medical expenses. Presenting two issues, Rodriguez

contends the jury’s failure to award damages for (1) physical pain, mental anguish, and (2)

medical expenses was against the great weight and preponderance of the evidence. We

affirm.


                                     Background Facts


          Rodriguez was injured on September 2, 2003, when a lid on a dumpster owned by

BFI struck him in the head as he was emptying trash. The following day, Rodriguez went

to the emergency room complaining of headaches and neck pain. After an examination

and x-rays, the emergency room physician concluded that he was suffering from a head

contusion and neck strain. On September 5, Rodriguez followed up with his primary care

physician, Dr. Howard Johnson. Dr. Johnson concurred with the initial diagnosis and

prescribed muscle relaxants for his neck. He then released Rodriguez to resume his

normal activities.


          1
        Originally, Rodriguez sued Browning-Ferris Industries, Inc. and Browning-Ferris
Services, Inc., a/k/a BFI, Inc. In the Original Answer and the Amended Original Answer
the defendant pointed out that the proper defendant was BFI Waste Services of Texas,
L.P. Thereafter, Rodriguez amended his petition to name BFI Waste Services of Texas,
L.P. as the only defendant. Despite requesting that the case be re-styled, Rodriguez never
obtained an order from the trial court granting that request. As a consequence, the
incorrect style of the case has remained. The trial court clerk, the notice of appeal, and the
Clerk of this Court have each carried the style of the case as noted hereinabove.

                                              2
       Four days later, Rodriguez returned to the doctor complaining of numbness and

tingling in his left arm. This time, Dr. Johnson ordered an MRI of Rodriguez’s cervical

spine. The MRI results revealed signs of degenerative disk disease and a herniated disk

asserting pressure on the nerves in his neck. Based on the MRI, Dr. Johnson referred

Rodriguez to Dr. Luiz Cesar, a neurosurgeon in Amarillo. Dr. Cesar reviewed the MRI

results on October 8, 2003. He immediately confirmed the disk herniation and observed

other signs of “chronic wear and tear.” He also observed narrowing in the spinal canal. To

alleviate Rodriguez’s problems, he recommended surgery to repair the herniated disk and

alleviate the compression on the spinal cord. The surgery was performed on November

3, and Rodriguez was discharged three days later. Despite the surgery, Rodriguez was

left with a permanent decrease in mobility in his neck.


       Rodriguez subsequently sued BFI for negligence alleging that it failed to maintain

or repair the dumpster lid and failed to warn him of a potentially dangerous situation. At

the conclusion of the evidence, the jury attributed both parties 50 percent of the negligence

and awarded a total of $20,000 for lost wages. The jury awarded zero damages for past

and future physical pain and mental anguish, past and future medical care, and future lost




                                             3
wages.2 Following a judgment on the verdict, the trial court denied Rodriguez’s motion for

new trial and Rodriguez filed this appeal.


      2
          In relevant part, the charge read as follows:

      Question Three

      What sum of money, if paid now in cash would fairly and reasonably
      compensate Arturo Rodriguez for his injuries, if any, that resulted from the
      occurrence in question?

      Consider the elements of damages listed below and none other. Consider
      each element separately. Do not include damages for one element and (sic)
      any other element. Do not include interest on any amount of damages you
      may find.

      Do not reduce the amounts, if any, in your answers because of the
      negligence, if any, of Arturo Rodriguez.

      Answer separately, in dollars and cents, for damages, if any.
      a.   Physical pain and mental anguish sustained in the past.
           ANSWER: 0

      b.        Physical pain and mental anguish that, in reasonable
                probability, Arturo Rodriguez will sustain in the future.
                ANSWER: 0

      c.        Medical care in the past.
                ANSWER: 0

      d.        Medical care that, in reasonable probability, Arturo Rodriguez
                will sustain in the future.
                ANSWER: 0

      e.        Lost wages sustained in the past.
                ANSWER: $20,000

      f.        Future wages that, in reasonable probability, Arturo Rodriguez
                will sustain in the future.
                ANSWER: 0

                                               4
       By his issues, Rodriguez claims that the jury erroneously disregarded the objective

evidence of his injuries and the uncontroverted testimony that he experienced pain as a

result thereof. He also claims the jury erred by disregarding the evidence of medical

expenses attributable to the accident in question. Therefore, Rodriguez maintains that the

jury’s failure to award him damages for physical pain, mental anguish, and medical

expenses was against the great weight and preponderance of the evidence. We disagree.


                                     Standard of Review


       A party attacking the sufficiency of an adverse jury finding on which it had the

burden of proof must demonstrate that the finding was against the great weight and

preponderance of the evidence. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex.

2001); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). We must consider and

weigh all of the evidence, not just the evidence which supports the verdict. Maritime

Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998). At the same time, we must

be cognizant of the fact that the jury is the sole judge of the credibility of witnesses and the

weight to be given their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d

757, 761 (Tex. 2003). We may set aside the verdict only if it is so contrary to the

overwhelming weight of the evidence that it is clearly wrong and manifestly unjust. Cain v.

Bain, 709 S.W.2d 175, 176 (Tex. 1986).




                                               5
                                            Analysis


       Reviewing the evidence in the present case, the record clearly reflects that

Rodriguez suffered some injury when he was struck by the dumpster lid. There is

conflicting evidence, however, as to whether this injury resulted in the damages sought at

trial because Rodriguez did not attempt to marshal his evidence or his arguments in such

a way as to differentiate damages resulting from this injury and damages resulting from a

preexisting condition. The emergency room records indicate that Rodriguez suffered a

head contusion and neck strain. This diagnosis was confirmed by Dr. Johnson. But when

Rodriguez complained of numbness and tingling in his left arm, an MRI revealed multiple

signs of degenerative disk disease in addition to a herniated disk. Both Dr. Johnson and

Dr. Cesar testified that such degenerative changes occur naturally over time as part of the

aging process.3 Both also stated that without having examined Rodriguez prior to the

injury, there was no way of ascertaining whether the herniated disk was caused by the

impact of the dumpster lid, although such an injury was conceivable. Dr. Cesar also

remarked that the narrowing of Rodriguez’s spinal canal was probably “of congenital

nature.”


       There is also evidence that Rodriguez had previously sought medical treatment for

complications similar to those alleged to have been caused by the falling dumpster lid. Dr.

Johnson testified that Rodriguez had come to his office prior to September 2003


       3
           Dr. Cesar’s testimony at trial was by video deposition.

                                               6
complaining of pain in his right shoulder and numbness in his hand. Rodriguez was

subsequently diagnosed with osteoarthritis. Dr. Johnson also testified, and Rodriguez

acknowledged, that he occasionally suffered from bouts of back pain, sleep apnea,

dizziness, and headaches. Rodriguez, however, claims that none of these ailments

prevented him from performing his employment duties, and he was never restricted from

working.


                                   “Zero Damages Rule”


       To further support his position, Rodriguez implicitly asks us to invoke the legal

principle commonly referred to as the “zero damages rule.” This “rule” provides that when

there is objective evidence of an injury, a jury’s failure to award some monetary amount for

each element of damages proved is per se against the great weight and preponderance

of the evidence.4 See generally W. Wendell Hall, Standards of Review in Texas, 38 St.

Mary’s L.J. 217, 217-18 (2006). However, this rule, and its various applications, has been

repeatedly criticized for being inconsistent with the standard of review articulated in Pool,

715 S.W.2d at 635. See, e.g., Golden Eagle Archery, 116 S.W.3d at 777 (O’Neill, J.,

concurring) (suggesting that the Court should “expressly disavow it”); Davis v. Davison, 905

S.W.2d 789, 792 (Tex.App.–Beaumont 1995, no writ) (Stover, J., concurring); Srite v.


       4
        The “zero damages rule” is not a rule of damages. Rather, it is a common name
for a challenge to negative jury findings as to damages based on the great weight and
preponderance of the evidence. Perez v. Lopez, 74 S.W.3d 60, 65 n. 1 (Tex.App.–El Paso
2002, no pet.); Estrada v. Dillon, 23 S.W.3d 422, 426 (Tex.App.–Amarillo 2000), reversed
in part on other grounds, 44 S.W.3d 558 (Tex. 2001).

                                             7
Owens-Illinois, Inc., 870 S.W.2d 556, 558 (Tex.App.–Houston [1st Dist.] 1993), rev’d in part

on other grounds, 897 S.W.2d 765 (Tex. 1995). Consequently, strict application of the rule

has been disavowed or expressly rejected by a majority of the intermediate appellate

courts, including this Court.    E.g., McDonald v. Dankworth, 212 S.W.3d 336, 349

(Tex.App.–Austin 2006, no pet.); Gonzalez v. Wal-Mart Stores, Inc., 143 S.W.3d 118, 124

(Tex.App.–San Antonio 2004, no pet.); Dunn v. Bank-Tec South, 134 S.W.3d 315, 325-26

(Tex.App.–Amarillo 2003, no pet.); Perez v. Lopez, 74 S.W.3d 60, 65 (Tex.App.–El Paso

2002, no pet.); Waltrip v. Bilbon Corp., 38 S.W.3d 873, 880 n.2 (Tex.App.–Beaumont 2001,

pet. denied); Water Doctors Intern., Inc. v. Lux, 957 S.W.2d 869, 870 n.1 (Tex.App.–Tyler

1997, no pet.); Pilkington v. Kornell, 822 S.W.2d 223, 225 (Tex.App.–Dallas 1991, writ

denied). Despite Rodriguez’s contentions, the relevant inquiry remains simply whether the

verdict is so contrary to the overwhelming weight of the evidence that it is clearly wrong and

manifestly unjust. See Golden Eagle Archery, 116 S.W.3d at 761.


                                        Conclusion


       Here, although there is objective evidence of injury, the jury simply may not have

believed that Rodriguez’s pain and suffering were due to the occurrence in question, but

were instead due to his preexisting condition. As previously stated, the jury is the sole

judge of the credibility of the witnesses and it is within its province to weigh the evidence

and resolve any conflicts. The jury heard testimony from multiple witnesses and it was its

function to accept or reject any, part, or all of the witnesses’ testimony and the evidence.


                                              8
See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). Considering that neither

doctor could testify to a sole cause of Rodriguez’s neck injury, we cannot say that the jury’s

failure to award damages for physical pain and mental anguish was so contrary to the great

weight and preponderance of the evidence as to be manifestly unjust. The same analysis

applies to the jury’s failure to award damages for past medical expenses. Therefore,

Rodriguez’s issues are overruled.


       Accordingly, the trial court’s judgment is affirmed.




                                                  Patrick A. Pirtle
                                                      Justice




                                              9
