

NO. 07-09-0181-CV
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL D 
 
 AUGUST 19, 2011

 
 

 
 
MID-CONTINENT GROUP d/b/a/ MID-CONTINENT CASUALTY & MID-CONTINENT
INSURANCE, APPELLANT
 
V.
 
KENNETH GOODE, APPELLEE 

 
 

 
 FROM THE 72ND DISTRICT
COURT OF LUBBOCK COUNTY;
 
NO. 2006-536,112; HONORABLE RUBEN REYES, JUDGE

 
 

 
Before QUINN, C.J., and CAMPBELL and
PIRTLE, JJ.
 
 
MEMORANDUM OPINION
            Appellant, Mid-Continent Group d/b/a
Mid-Continent Casualty & Mid-Continent Insurance, appeals from a judgment
entered in favor of Appellee, Kenneth Goode, in an action to recover
underinsured/uninsured motorist (UIM) benefits. 
In support, Mid-Continent broadly presents three issues:  (1) whether Goode's evidence of causation between
an automobile accident and his cervical injury is legally and factually
sufficient; (2) whether Goode's evidence of the reasonableness and necessity of
his medical care is legally and factually sufficient; and (3) whether legally
sufficient evidence supports Goode's right to recover under the UIM provisions
of his policy with Mid-Continent.  We
affirm.   
Background
            On April 5, 2003, Goode's pickup was
struck by another vehicle.  After being
struck, Goode attempted to protect and stabilize himself by holding onto the
steering wheel with his left hand.  During
the accident investigation he told police officers that he was having trouble
with his left arm and shoulder.  His
shoulder eventually required surgery; however, his pain persisted and in 2006 a
cervical injury was diagnosed. 
Mid-Continent, Goode's UIM insurance carrier, disputed whether the
cervical injury resulted from the 2003 accident.  Unable to reach an agreement as to damages, on
August 10, 2006, Goode filed this action to recover under the UIM provisions of
an insurance policy issued by Mid-Continent. 
 
            Pretrial Hearings
            There were three pretrial hearings in
this case.  At a pretrial hearing held September
14, 2007, the trial court proposed two methods of trying the case.  The first method involved trying liability
and damages, essentially a lawsuit against an insurance company.  The second method involved treating the
action like a regular automobile accident case, a lawsuit of one driver against
the other.  During an exchange between the
parties, the following occurred:
GOODE'S COUNSEL:  And [Mid-Continent's
counsel] brought up a good thing.  I was
about to address the Court with regard to bringing the contract in, talking
about the permission, talking about the underinsured issues.  Do I have the burden of proving that
contractual relationship, or are we just going to go straight into the PI [personal
injury] case?
THE COURT:  Are you contesting that?
MID-CONTINENT'S COUNSEL:  I am not
contesting the contract.  No, I am not
contesting that coverage would lie under the circumstances.  Basically, we are -- [Goode's counsel] and I
agree that it is a pretty simple issue. 
I am really not contesting liability, other than I am contesting
causation, and we will kind of get into that with these experts.  
THE COURT:  Right.  And it is just like a regular car wreck.  I mean, take the insurance element out of
this, as far as an underinsured claim. 
There was an accident.  There was
some injury to this part of the body.  We
don't think the injury to this part of the body is related, and this is
why.  The delay in treatment -- you know,
he didn't even claim he was injured at that point, whatever.  It doesn't make any difference.
            One
year later, during the pretrial hearing that occurred on September 19, 2008,
the parties continued their discussion as to whether to try the case as a
contract case or a personal injury case: 

THE COURT:  All right.  Anything else we need to deal with, with
regard to the depositions?  No?  Anything else we need to deal with, with
regard to the Charge?
MID-CONTINENT'S COUNSEL:  Judge,
the only thing I have a question about is, and, we mentioned it a year ago, and
I can't remember what all we've talked about, about how to try this case, and
we have set it up in our Court's Charge, to try Kenneth Goode as Plaintiff,
versus the driver, William Lee Harris, and try the car wreck case.  We are
going to admit liability.  So [Goode's counsel]
doesn't have to prove up anything regarding liability. It's just a damage
issue case, with a credit at the end, with the stipulation from [Goode's counsel].  I think we may have done that.  We probably need to do that again.  The policy limits were paid at $50,000, on
behalf of William Lee Harris' insurance company for -- to Mr. Goode on the original
claim.
THE COURT:  So you are wanting to try it as -- repeat the first part of what
you told me, to make sure I've understood what you said.
MID-CONTINENT'S COUNSEL:  That we
are trying it as a separate or accident case, Mr. Goode against the driver that
caused the accident, instead of a contract claim against Mid-Continent
Insurance Company.   
*  
*   *
THE COURT:  Let me help you
there.  Normally, in these
underinsured/uninsured cases, the only issue for the jury to establish is
liability and then the amount of damages. 
Here, the defense is apparently stipulating to liability.  So the only issue is the amount of damages,
okay?  
           *  
*   *
THE COURT:  Okay.  With regard to the Charge, then, since you
are going to stipulate as to liability, we are simply going to have then a
question on damages, right, one-question charge on damages?
GOODE'S COUNSEL:  On past and present.
MID-CONTINENT'S COUNSEL:  That is
right.  I mean, we were going to
stipulate, I think -- I mean, just to be consistent,
we are going to go ahead and stipulate anyway. 
But we are trying a car wreck case, one party against the other.  But I don't think it is going to matter.  I am not going to try this case on
liability.  So we are going to stipulate
as to liability.
THE COURT:  Okay. 
(Emphasis added).   
A third pretrial hearing was held on
the day of trial.
            Trial
            A jury trial of Goode's
action commenced on September 22, 2008.  The evidence
showed that, immediately following that April 2003 automobile accident, Goode
complained of pain in his shoulder.[1]  His physician, Dr. Chavez, referred him to
Dr. Nordyke, an orthopedic surgeon.  When
he initially visited Dr. Nordyke, Goode complained only of pain in his shoulder
and denied any pain in his neck.  After examination,
Dr. Nordyke concluded from Goode's MRI scan and symptoms that he was suffering
from a rotator cuff injury and SLAP tear[2]
or torn cartilage to his shoulder.
            In
September 2003, Goode underwent surgery to repair his shoulder injury.  Dr. Nordyke subsequently described the
surgery as successful and anticipated that Goode's recovery would last four to
six weeks.  That same month, Goode was
diagnosed with prostate cancer.  In early
October, Dr. Nordyke became concerned because Goode continued to experience pain
in his shoulder.  By late October,
Goode's shoulder was stiff and he was at the lower end of where Dr. Nordyke
expected he would be after rehabilitation or physical therapy.  Thinking the radiation therapy for the
prostate cancer might be affecting Goode's rehabilitation,
Dr. Nordyke treated Goode with steroids for frozen shoulder or adhesive
capsulitis, i.e., inflammation or tightness in the shoulder.  From November 2003 through January 2004,
Goode's symptoms persisted and Dr. Nordyke continued Goode's steroid treatment.  In February 2004, Goode was doing much better
and Dr. Nordyke released him while continuing the steroid treatments for a
short period.  
            Thereafter,
Goode continued to work even though he was experiencing pain in his
shoulder.  He did not return to Dr.
Nordyke because he thought the pain would eventually go away and there was no
one to relieve him at work.[3]  In July 2005, Goode again saw his physical
therapist complaining of pain in his shoulder. 
He also sought an impairment rating. 

            In
December 2005, he went to see Dr. Chavez for a follow-up on his shoulder.  Dr. Chavez diagnosed Goode as suffering from chronic
shoulder pain and muscle atrophy.  He again
referred Goode to Dr. Nordyke, and, in March 2006, Goode saw Dr. Nordyke
complaining, for the first time, of neck pain accompanied by numbness in his
left arm with tingling sensations going down his arm.  Dr. Nordyke re-evaluated Goode's shoulder and
concluded that Goode had not progressed as he had expected after surgery.  When Goode's shoulder x-rays looked good, Dr.
Nordyke suspected that Goode's pain might be originating in his neck.  He decided to look at Goode's cervical spine
and ordered a new MRI scan.  This MRI
showed some degenerative changes in the disk and cervical spine.  Dr. Nordyke put Goode on steroids and
referred him to Dr. Claude Oliva, a pain management specialist, and Dr. Nevan Baldwin,
a neurosurgeon.  
            Dr.
Baldwin saw Goode in early April 2006.  This
time Goode complained of pain in the base of his neck and, when he was in
certain positions, his neck would lock up.  
When Dr. Baldwin reviewed Goode's MRI results, he observed a problem at
the C-6, C-7 level of Goode's spine.  He
ordered another MRI which confirmed that there was a narrowing of the disk at that
level.  Dr. Baldwin concluded that Goode
had a ruptured or bulging cervical disk--cervical radiculitis. 
            At
trial, Dr. Nordyke opined that Goode injured his neck at the same time he
injured his shoulder, i.e., Goode's cervical disk was also injured in the April
2003 accident.  In retrospect, looking
back at Goode's medical records since the accident, Dr. Nordyke testified that
he probably missed Goode's neck injury because he believed that Goode's lack of
progress during rehabilitation in 2003 and early 2004 was due to his prostate
cancer and radiation treatment coupled with the steroid therapy which
"calmed down [Goode's] cervical radiculitis."  He testified that Goode's symptoms from May 2003
until April 2006 were consistent with having a herniated disk because Goode was
experiencing shoulder pain continuously throughout the period despite a
successful operation repairing his rotator cuff and SLAP tear.  Dr. Nordyke testified that an article from a
respected medical textbook indicated that the condition of having a frozen
shoulder or adhesive capsulitis was "highly associated" with also
having cervical radiculitis or a herniated disk.  He further testified that in his normal
practice, ten to fifteen percent of his patients experience no pain with a cervical
disk problem.[4]  
            Dr.
Baldwin agreed with Dr. Nordyke that Goode's symptoms of a cervical spine
injury arose at the time of the accident and persisted since that time.  He also agreed with Dr. Nordyke that Goode
could have injured his disk in the accident without exhibiting symptoms.  Dr. Baldwin testified that one of the very
frequent presentations of a C-6, C-7 herniation[5]
is that the pain goes right along the inner edge of the shoulder blade.  He further stated that "just if you
touch along the tips between the shoulder blade and the spine, they get pain
and tenderness in that area, and sometimes coming out toward the shoulder. And
then, as things progress, this symptom gets a little worse, and then they have
the tingling in the hand and so forth." 

            Dr.
Baldwin testified that Goode's cervical disk problems could have been caused by
the accident, or they might have already been present and merely advanced over
the course of the following years.[6]  He further opined that, regardless whether or
not Goode suffered from degenerative spine conditions prior to the accident, it
was possible the accident either exacerbated a pre-existing condition or caused
the condition.  He testified x-rays and
MRIs "really do not describe any significant degenerative changes"
and "couldn't say one way or the other whether the spurs found in Goode
were caused by the April 2003 auto accident."
            Dr.
James Burke, an orthopedic surgeon, testified as Mid-Continent's expert.  According to his testimony he saw nothing in
Goode's records to indicate that he had problems with his neck at the time of
the accident.  In support, he asserted
there was no indication Goode complained of neck pain from April 2003 until
April 2006 and observed that, in his opinion, Goode's degenerative changes
would not likely have been caused by trauma. 
Rather than suffering from frozen shoulder or adhesive capsulitis after
surgery, Dr. Burke opined that Goode suffered from postoperative
stiffness.  In addition, he testified
Goode suffered from spondylosis, a generic term equivalent to degenerative
changes in the spine.  He disagreed with
Dr. Nordyke's opinion tying Goode's cervical problems to the 2003 accident
because Dr. Nordyke had previously noted that Goode was negative for neck
problems.  He also disagreed whether a C-6,
C-7 issue could cause Goode's shoulder pain because he opined such problems are
usually associated with the C-5 or C-6 nerve root.  He opined that, had the accident exacerbated
Goode's symptoms, either from a pre-existing neck condition or had caused the problems
that eventually led to the deterioration of Goode's neck, such an injury would
have been "evidence[d] by the examination and questioning of Dr. Nordyke
at some period more temporal to the injury."  As a result, he concluded that "the car
accident of April 5, 2003, did not cause Goode's current disc and cervical
problems."[7]
            On
cross-examination Dr. Burke did concede that it was "possible" that
adhesive capsulitis or frozen shoulder could occur as a result of a minor
trauma to the shoulder.  He further
opined that it was unusual for Goode to still be having shoulder pain in
January 2004, approximately three months after surgery.  He testified that, like Dr. Nordyke, he too had
seen a fair number of patients with shoulder pain having problems with their
neck, but complaining of no neck pain. 
He had also treated persons with ruptured cervical disks that didn't
have neck pain and agreed with Dr. Nordyke that "the two can be
confused."  He also agreed that the
diagnosis of adhesive capsulitis can be associated with cervical radiculitis;
but, in his opinion, that this was not the case with Goode.  He testified Goode had "a stiff and sore
shoulder or adhesive capsulitis, following a shoulder surgery which is
completely different entity from frozen shoulder or adhesive capsulitis, as it
presents without shoulder surgery." 
Finally, he testified that it was "possible" that the collision
in question could have turned the situation with regard to Goode's neck from
asymptomatic to symptomatic.  
            At
the trial's conclusion, a single question on the issue of damages was submitted
to the jury.[8]  In nine subquestions pertaining to individual
elements of damage, the jury returned a verdict totaling $289,362.43.[9]  In post-verdict proceedings, the trial court
denied Mid-Continent's motion to disregard the jury's findings and, after
applying stipulated credits for sums previously paid and adding pre-judgment
interest, entered a judgment in favor of Goode for $244,467.58, plus court
costs and post-judgment interest at the rate of 5% compounded annually from
March 6, 2009.  This appeal followed.
Discussion
            Mid-Continent asserts Goode's
evidence in support of a causal connection between the accident and his
cervical condition was legally and factually insufficient.  Mid-Continent also asserts that Goode's
evidence in support of his medical expenses is legally insufficient because it
fails to establish the necessity of the services or the reasonableness of the
charges.  Lastly, Mid-Continent contends
Goode's evidence that Mid-Continent breached its insurance contract with Goode
was legally insufficient.


Standard of Review--Legal and Factual Sufficiency
When both legal and factual
sufficiency challenges are raised on appeal, the reviewing court must first
examine the legal sufficiency of the evidence. 
See Glover v. Tex. Gen. Indemnity Co., 619
S.W.2d 400, 401 (Tex. 1981).  In
conducting a legal sufficiency review, we must consider the evidence in the
light most favorable to the challenged finding and indulge every reasonable inference
that supports the verdict, City of Keller v. Wilson, 168 S.W.3d 802,
821-22 (Tex. 2005); crediting favorable evidence if reasonable jurors could,
while disregarding contrary evidence unless reasonable jurors could not.  Id. at 827.  A
challenge to the legal sufficiency will be sustained only when (a) there is a
complete absence of evidence of a vital fact, (b) the court is barred by rules
of law or of evidence from giving weight to the only evidence offered to prove
a vital fact, (c) the evidence offered to prove a vital fact is no more than a
mere scintilla of evidence, or (d) the evidence conclusively establishes the
opposite of the vital fact in question.  Id. at 810; King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S.
1030,124 S.Ct. 2097, 158 L.Ed.2d 711 (2004). 
In addition, so long as the evidence falls within the zone of reasonable
disagreement, we may not invade the fact-finding role of the jurors, who alone
determine the credibility of witnesses, the weight to be given their testimony,
and whether to accept or reject all or a part of their testimony.  City
of Keller, 168 S.W.3d at 822. 




In reviewing factual sufficiency, the
reviewing court must consider, examine, and weigh the entire record,
considering both the evidence in favor of, and contrary to, the challenged
findings.  Maritime Overseas Corp. v.
Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998), cert. denied, 525 U.S.
1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998). 
In doing so, the court no longer considers the evidence in the light
most favorable to the finding; instead, the court considers and weighs all the
evidence, and sets aside the disputed finding only if it is so contrary to the
great weight and preponderance of the evidence as to be clearly wrong and manifestly
unjust.  Id. at
407; Ortiz v. Jones, 917 S.W.2d 770,
772 (Tex. 1996).   
Causation
            "[A]t trial the plaintiff must
establish two causal nexuses in order to be entitled to recovery:  (a) a causal nexus between the defendant's
conduct and the event sued upon; and (b) a causal nexus between the event sued
upon and the plaintiff's injuries." 
Morgan v.
Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984).  Only the second nexus is at issue here.
            To meet the legal sufficiency
standard in a personal injury case, plaintiffs are required to adduce evidence
of a "reasonable medical probability" or "reasonable
probability" that their injuries were caused by the negligent act, meaning
simply that it is "more likely than not" that the ultimate harm or
condition resulted from the negligent act. 
Jelinek v.
Casas, 328 S.W.3d 526, 532-33 (Tex. 2010).  "[R]easonable medical probability can be
based on the evidence as a whole, and it is not absolutely necessary that an
expert couch his or her opinion in terms of ‘reasonable medical probability.’"
Rehabilitative Care
Systems of America v. Davis, 43 S.W.3d 649, 661 (Tex.App.--Texarkana 2001),
pet. denied, 73 S.W.3d 233 (Tex. 2002) (citing Duff v. Yelin, 751 S.W.2d 175, 176 (Tex.
1988).  Although a medical expert may not
base his or her opinion on "mere conjecture, speculation, or possibility,"
Rehabilitative Care Systems, 43
S.W.3d at 663 (citing Bradley v. Rogers,
879 S.W.2d 947, 953-54 (Tex.App.--Houston [14th Dist.] 1994, writ denied)), the
expert may appropriately testify concerning possible causes of plaintiff's
condition in order to assist the jury in evaluating other evidence of
causation.  Id.  
Analysis
            As to
Mid-Continent's first issue, we must examine the record to determine whether
Goode presented legally and factually sufficient evidence to establish that
"in reasonable medical probability" the accident in question caused
Goode's cervical condition.
            Goode testified at trial that prior
to the accident he had no problems with his neck or his shoulder.  Immediately after the automobile accident he
was diagnosed with a shoulder injury and within three years he was experiencing
chronic shoulder pain which continued to the present at the time of trial.  Both Drs. Nordyke and Baldwin agreed that the
absence of neck pain at the time of the accident did not necessarily exclude
the possibility that Goode's neck injury occurred at that time.  Furthermore, Dr. Baldwin testified that a
very common presentation of a C-6, C-7 herniation is that the pain runs along
the inner edge of the shoulder blade which sometimes radiates over the shoulder,
indicating that neck injuries can often present themselves as shoulder pain.  
            Both Drs. Nordyke and Burke
testified that Goode's frozen shoulder or adhesive capsulitis was associated
with having cervical radiculitis or a herniated disk and Dr. Nordyke relied on
an article in a medical textbook to show that the medical community recognized these
symptoms as being "highly associated."  While Dr. Nordyke opined that Goode's
shoulder pain following successful surgery indicated the possibility of a
cervical injury, Dr. Burke opined that Goode's stiffness following surgery was
a postoperative condition caused by the surgery and not the accident.  Dr. Burke also testified that adhesive
capsulitis could occur as the result of minor trauma to the shoulder and that a
collision, such as the collision in question, could have turned a neck problem
from asymptomatic to symptomatic. 
            While Dr. Burke's opinion that
Goode's current disk problems were not caused by the accident in question was
based on Dr. Nordyke's failure to identify a neck injury shortly after the accident,
Dr. Nordyke testified that he may have missed the diagnosis due to Goode's prostate
cancer and radiation treatment.  Dr.
Nordyke also testified that Goode's steroid therapy would have quieted any
cervical issue in addition to treating the inflammation in his shoulder.  Dr. Nordyke testified that it was not until
Goode visited him in April 2006 complaining of a tingling sensation in his fingers
and pain in his arm that he came to suspect that Goode had also injured his neck
in the accident.  
            Mid-Continent asserts that Goode's
evidence of causation is predicated solely on Dr. Nordyke's reference to an
article in a medical textbook.[10]  We disagree. 
Reasonable medical probability can be based on the evidence as a
whole.  Rehabilitative Care Systems, 43 S.W.3d at 663 (citing Duff v. Yelin, 751 S.W.2d 175, 176 (Tex.
1988)).  
            Mid-Continent also contends that Dr.
Nordyke's opinions lack probative value because he ignores the fact that
Goode's MRI evidences no abnormalities at C-5 and he disregards the absence of
temporal proximity between the accident and the onset of neck pain.   In that regard, Dr. Burke testified that
neck problems are usually related to the C-5 or C-6 nerve root while Dr.
Baldwin testified that his second MRI confirmed a narrowing of Goode's disc at
the C-6, C-7 level.  Furthermore, Dr.
Baldwin recognized that Goode had degenerative changes in his spine in the 2006
MRIs but opined that he believed the accident either caused or exacerbated
whatever degenerative processes Goode was experiencing in the following years.
Dr. Baldwin also testified that Goode's x-rays and MRIs did not describe any
significant degenerative changes and, because the changes occurred in a single
level, Goode's x-rays and MRIs indicate or hint that, at some point, there was
a concentration of force, or injury at that level.[11]  Accordingly, Dr. Nordyke does not ignore the
cervical abnormalities, he simply disagrees with Dr. Burke that degenerative changes
were the cause of Goode's neck pain in 2006. 
As to the question of temporal proximity, although there was a three
year span between the accident in 2003 and Goode's complaint of neck pain in
2006, Dr. Nordyke's opinion evidence closed the gap by establishing the medically-recognized
association between a shoulder and neck abnormality, Goode's failure to fully
recover after a successful reparation of his shoulder issues, and Goode's
chronic shoulder pain during the entire period. 
Both Drs. Nordyke and Baldwin testified that Goode exhibited symptoms of
cervical radiculitis from the date of the accident forward.  Dr. Nordyke testified that he failed to
diagnose the neck issue earlier because of Goode's diagnosis of prostate cancer
and his steroid treatment not only masked the pain in Goode's shoulder but also
any issues with his neck.  Although evidence
of temporal proximity is relevant to the issue of causation, the absence of
temporal proximity does not exclude causation any more than the presence of temporal
proximity, by itself, establishes medical causation.  See
Guevara v. Ferrer, 247
S.W.3d 662, 668 (Tex. 2007). 
Thus, the fact that Goode's neck issues did not present themselves until
three years after the accident, by itself, does not render Dr. Nordyke's or Dr.
Baldwin's opinions speculative or conjecture as a matter of law.  
            In the final analysis, Goode's
experts, Drs. Nordyde and Baldwin, simply disagreed with Mid-Continent's
expert, Dr. Burke, on a number of issues. 
The resolution of conflicts in opinion is best left to the finders of
fact.  See City of Keller, 168 S.W.3d at 822; Cantu v. Pena, 650 S.W.2d 906, 909-10
(Tex.App.--San Antonio 1983, writ ref'd n.r.e.).  In this case, those conflicts were simply
resolved by the jury in Goode's favor.    Based upon the record, we cannot say that the
evidence that Goode suffered a cervical injury as a result of the accident is
so weak as to do no more than create a mere surmise or suspicion of fact.  Nor can we say the jury's implied finding to
that effect is so against the great weight and preponderance of the evidence as
to be clearly wrong or manifestly unjust. 
See generally Rehabilitative Care
Systems, 43 S.W.3d at 663; Cantu, 650
S.W.2d at 910.  Mid-Continent's first
issue is overruled.
Medical Expenses 
            By its
second issue, Mid-Continent challenges a portion of the jury's award for past
and future medical care.  In doing so, it
challenges the legal sufficiency of the evidence establishing the necessity of
the care and the reasonableness of the associated expense.  Specifically, it challenges $7,474.89 of the
$37,188.25 awarded for past medical expenses[12] and all of the $59,094.18
awarded for future medical expenses. 
Mid-Continent contends the verdict lacks the support of legally
sufficient evidence because expert proof of reasonableness and necessity is
missing.  We disagree. 
Past
Medical Expenses
            As to past medical expenses, in
both the opening and closing statements to the jury, Mid-Continent's counsel
asserted that past medical expenses associated with Goode's shoulder injury
were proper and should be awarded.[13]  Immediately following opening statements
Goode's counsel tendered numerous exhibits, including an exhibit entitled Summary of Damages, in support of his
claim for damages: $37,188.25 for total past medical care and $59,094.18 for
total future medical care.[14]  When asked by the trial court whether
Mid-Continent had any objection to the admission of these exhibits,
Mid-Continent's counsel replied, "No objection, Your Honor."[15]  Although he does not specifically identify during closing
arguments what expenses his $36,000
reference was intended to identify, a review of the record indicates that the
only reasonable reference would be to the $37,188.25 for past medical care identified
in the Summary of Damages, previously
introduced without objection.  
            Thus, having stipulated to the
admission of Goode's trial exhibit evidencing his past medical expenses and
prospective charges for future medical services; see Tex. R. Civ. P. 11 (providing that agreements made between
parties are enforceable if made in open court and entered of record); Bufkin v. Bufkin, 259 S.W.3d 343, 355
(Tex.App.--Dallas 2008, pet. denied), and having agreed that Goode's claim for
past medical care was "proper" and "legitimate,"
Mid-Continent will not now be heard to contest the jury's finding as to that
element of Goode's damages.  Mid-Continent's
"stipulation is a binding contract between the parties and the court,
serves as proof on an issue that would otherwise be tried, is conclusive on the
issue addressed, and estops the parties from claiming to the
contrary."  Solares v. Solares, 232 S.W.3d 873, 883
(Tex.App.--Dallas 2007, no pet.) (citing Houston Lighting & Power Co. v. City of
Wharton, 101 S.W.3d 633, 641 (Tex.App.--Houston [1st Dist.] 2003, pet.
denied)).  Accordingly, the jury's
finding as to past medical care is supported by legally sufficient evidence.  
Future
Medical Expenses
            As to future medical expenses, Texas
follows the "reasonable probability" rule.  Fisher
v. Coastal Transport Co., 149 Tex. 224, 228-29, 230 S.W.2d 522, 524 (1950);
Bituminous Cas. Corp., 223 S.W.3d 485
(Tex.App.--Amarillo 2006, no pet.); Hughett v. Dwyre, 625 S.W.2d 401 (Tex.App.--Amarillo 1981, writ ref'd
n.r.e.).  Adhering to
that rule, Texas courts have consistently held that the award of future medical
expenses is a matter primarily for the jury to determine.  No precise evidence is required and the jury
may base its award upon the nature and extent of the injuries, the progress
toward recovery of the injured party under the treatment already provided, the
reasonable cost of medical care rendered in the past, and the physical condition
of the injured party at the time of trial. 
Edens-Birch Lumber
v. Wood, 139 S.W.2d 881, 887 (Tex.Civ.App.--Beaumont 1940, dism'd judg.
corr).  See also Ibrahim v. Young, 253 S.W.3d 790, 808-09 (Tex.App.—Eastland 2008, pet.
denied); Bituminous Cas.
Corp., 223 S.W.3d at 490-91.  Nonetheless, a plaintiff seeking recovery for
future medical expenses must show there is a
reasonable probability that medical expenses resulting from the injury will be
incurred in the future and the reasonable costs of such care.  Bituminous
Cas. Corp., 223 S.W.3d at 490.  Here, Dr. Baldwin, the neurosurgeon,
testified of Goode’s need for surgery, and Goode introduced evidence of its
likely cost.   
            Under the record in this case, we
conclude that the evidence was legally sufficient to support the submission of
the issue regarding the amount of medical expenses that, in reasonable
probability, Goode would incur in the future. 
Furthermore, we conclude that the evidence is legally sufficient to
support the jury's answer to that issue. 
Accordingly, Mid-Continent's second issue is overruled.
Breach of Contract
            Mid-Continent
next asserts that the record is devoid of any evidence in support of a
requisite element of Goode's breach of contract claim because Goode failed to
proffer evidence of Mid-Continent's policy provisions permitting recovery.  A plaintiff seeking recovery against an
insurance company for injuries resulting from the negligence of an
uninsured/underinsured motorist must plead and prove that, at the time of the
accident, the plaintiff was protected by UIM coverage.  Mid-Century Ins. Co. v. McLain, No. 11-08-0097-CV, 2010 Tex.App.
LEXIS 1719, at *5 (Tex.App.--Eastland March 11, 2010, no
pet.) (mem. op.).  Having reviewed the record, supra, we find that Mid-Continent
stipulated to liability during pretrial proceedings. See Tex. R. Civ. P. 11.  Furthermore,
by agreement, the case was tried as an automobile accident case with a single
issue pertaining to damages caused by the accident.  Because Mid-Continent stipulated to liability
on the insurance contract, Goode was not required to offer proof on that issue,
and Mid-Continent is barred from disputing it. 
Solares, 232
S.W.3d at 883; Hansen v. Academy Corp., 961 S.W.2d 329, 335 (Tex.App.--Houston [1st Dist.] 1997, pet.
denied).  Accordingly,
the parties' stipulation is sufficient evidence of Mid-Continent's liability pursuant
to its insurance contract.  Mid-Continent's
third issue is overruled.
Conclusion
            The
trial court’s judgment is affirmed.
 
                                                                                    Patrick
A. Pirtle
                                                                                          Justice  




[1]Goode
testified that he had no problems with his shoulder or neck prior to the
accident,.


[2]A
SLAP tear is an injury to a part of the shoulder joint.  It is an acronym for Superior Labrum from
Anterior to Posterior.


[3]Goode
is a contract lease operator for a petroleum company.  As such, he was required to single-handedly
take care of production and perform minor maintenance on numerous oil
wells.  


[4]Dr.
Nordyke practices arthroscopic and sports medicine surgery.  He specializes in upper extremity issues and
does "quite a bit of shoulder work." 



[5]Dr.
Baldwin described Goode's ruptured or bulging disk as a condition that develops
over a long period of time.  He testified
that, when the disk is injured, "if it's torn, for example, and ruptures
over the course of time, typically, the disk will lose its water content, and
as it does so, the water keeps it kind of spongy and soft and lets the disk
perform its natural function to be our body's shock absorber.  When the disk loses its water content, it
becomes more firm, it loses its sponginess and will lose its height.  The bones come closer together as the disc
height is lost.  And associated with
that, usually, is some bone spur formation and some other changes which were
seen in Mr. Goode's MRI."  He
testified "[t]hose changes [in Goode's spine] oftentimes are
long--long-standing, and so they could have actually been there at the time of
the accident. And, because it was after the accident, when we first saw the
patient, and it was years before they first--to my knowledge, anyway, the first
MRI was obtained, those changes could have been initiated at the time of the
accident, and they could have advanced over the course of the following years. .
. ."   


[6]Dr.
Baldwin testified that Goode's second MRI confirmed there was a narrowing of
the disk at the C-6, C-7 level at the opening on the side of the spine where
the nerve exits to go down the arm, the seventh root coming down from the top
of the left side of the spine.


[7]Dr.
Burke did agree that Goode's shoulder was injured in the April 2003 automobile
accident.


[8]Question
1 stated "[w]hat sum of money, if paid now in cash, would fairly and
reasonably compensate Kenneth Goode for his
injuries, if any, that resulted from the occurrence in question?"


[9]The
jury's award included:  $25,000 for past
physical pain, $25,000 for future physical pain, $58,080 for future loss of
earning capacity, $4,000 for disfigurement, $6,000 for future disfigurement,
$25,000 for past physical impairment, $50,000 for future physical impairment,
$37,188.25 for past medical expenses, and $59,094.18 for future medical
expenses. 


[10]To
the extent Mid-Contintent challenges the reliability of Dr. Nordyke's textbook
reference as a basis for his opinion, Mid-Continent failed to object to the
evidence when it was offered at trial.  See Maritime Overseas Corp.
v. Ellis, 971 S.W.2d 402, 410 (Tex. 1998) ("To preserve a complaint
that scientific evidence is unreliable and thus, no evidence, a party must
object to the evidence before trial or when the evidence was offered.")  "Without a timely objection to the
reliability of the scientific evidence, the offering party is not given an
opportunity to cure any defect that may exist, and will be subject to trial and
appeal by ambush."  Id. at 409 (citing Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1066-67 (9th Cir. 1996),
cert. denied, 519 U.S. 1108, 117
S.Ct. 942, 136 L.Ed.2d 831 (1997)). 
Although Mid-Continent tested Dr. Nordyke's credentials as an expert by
objection prior to trial, Mid-Continent did not object to this evidence at
trial.    


[11]Dr.
Baldwin also testified that he had no basis to dispute Dr. Nordyke's opinion
that Goode had cervical spine and shoulder problems since the accident and
Goode's cervical spine abnormality was largely masked by his shoulder
symptoms.  Dr. Baldwin testified that,
given Dr. Nordyke's expertise on shoulder issues, he completely deferred to Dr.
Nordyke's opinion on the matter.


[12]Mid-Continent
challenges the past medical expenses for services provided by Dr. Nordyke
($4,968.89), ASLAN ($156.00), Dr. Strahan ($1,230.00), Dr. Mould ($780.00), and
NWTX Imaging Associates, P.A. ($340.00). 
Although acknowledging that evidence of these amounts were introduced
into evidence, Mid-Continent argues that "none of the foregoing exhibits
[are] probative of reasonable and necessary medical-care expense because such
statements, standing alone, do not 'constitute evidence of probative force that
the charges are reasonable.'" (Citation to internal quotation omitted).


[13]In
his opening statement, Mid-Continent's counsel said, "It's not the damages
to the shoulder.  Doesn't have anything
to do - those - those are proper damages." 
In his closing statement he said, "I will tell you right now that
the 36,000 for the shoulder repair is absolutely legitimate, and we have no
objection to that.  We told you very
early on that that was not a problem, and you should award that, because that
is legitimate."  


[14]Ultimately,
the jury accepted this summary and awarded these damages - to the penny.


[15]At
the September 19, 2008, pretrial hearing held less than a week before trial,
Mid-Continent's counsel represented that Mid-Continent stipulated to the
admissibility of all plaintiff's trial exhibits with the exception of a letter
from Dr. Baldwin to Goode's counsel.  At that
hearing, the following exchange occurred:
GOODE'S COUNSEL:  I believe this is the same issue that was
brought up in their Daubert challenge,
and that you have already ruled on the contents of the letter and deemed it
admissible.  Beyond that one issue, I
think we are in agreement on everything else that I have proffered as
evidence.  Is that correct?
MID-CONTINENT'S
COUNSEL:  Yes, sir.  That is our understanding as well.
GOODE'S COUNSEL:  Which is inclusive of past medical and future
medical and the manner in which they will be introduced through exhibits.  
THE COURT:  Okay. 
With regard to your exhibits, do we have an exhibit list?  Is that in one of these books?
           *    
*     *
THE COURT:  [Mid-Continent's counsel], when [Goode's counsel]
refers to all exhibits, except one, it appears that you-all have an agreement
as to the admissibility thereof.  Do you
know what he is talking about?  Is that
accurate?  Can I accept that as a stipulation?
MID-CONTINENT'S COUNSEL:  Yes, sir; as far as the medical that he
referred to earlier, the medical affidavits, medical records, so on and so
forth, I believe that those are essentially the exhibits that we are talking
about and the exhibits that we would use at trial, which we have stipulated as
to admissibility.


