                                                                                ACCEPTED
                                                                            03-15-00242-CV
                                                                                    7830504
                                                                 THIRD COURT OF APPEALS
                                                                            AUSTIN, TEXAS
                                                                      11/13/2015 4:57:29 PM
                                                                          JEFFREY D. KYLE
                                                                                     CLERK
                      Case Number 03-15-00242-CV

            IN THE THIRD DISTRICT COURT OF APPEALS FILED IN
                                                   3rd COURT OF APPEALS
                                                        AUSTIN, TEXAS
                             at Austin             11/13/2015 4:57:29 PM
                                                       JEFFREY D. KYLE
__________________________________________________________________
                                                            Clerk

                    GUILLERMO OCHOA-CRONFEL,
                            Appellant,

                                  v.

                      PATRICK C. MURRAY,
                             Appellee.
__________________________________________________________________

From Cause Number D-1-GN-11-002136 in the 345th Judicial District Court
                          of Travis County
__________________________________________________________________

                        BRIEF OF APPELLEE
__________________________________________________________________

                                  WALTERS, BALIDO & CRAIN, L.L.P.

                                                       Gregory R. Ave
                                            State Bar Number 01448900
                                            greg.ave@wbclawfirm.com
                             10440 North Central Expressway, Suite 1500
                                                    Dallas, Texas 75231
                                      Telephone Number (214) 347-8310
                                       Facsimile Number (214) 347-8311

                                          ATTORNEYS FOR APPELLEE
November 13, 2015                             PATRICK C. MURRAY
                LIST OF PARTIES AND THEIR COUNSEL

      Pursuant to Texas Rule of Appellate Procedure 38.1(a) and

38.2(a)(1)(A), the following are the parties to the trial court’s final judgment

being appealed and their counsel:

1.    Appellant:                    Guillermo Ochoa-Cronfel;

2.    Counsel for Appellant:        Paul T. Morin, Esquire
                                    (trial and appellant counsel)
                                    Paul T. Morin, P.C.
                                    503 West 14th Street
                                    Austin, Texas 78701;

                                    Guillermo Ochoa-Cronfel, Esquire
                                    (appellant counsel)
                                    The Cronfel Law Firm
                                    2700 Bee Caves Road, Suite 103
                                    Austin, Texas 78746

                                    Chris Cagle, Esquire
                                    (trial counsel)
                                    The Cagle Law Firm, P.C.
                                    4425 South Mopac Expressway
                                    Building II, Suite 105
                                    Austin, Texas 78735

3.    Appellee:                     Patrick C. Murray;

4.    Counsel for Appellee:         Gregory R. Ave (appellate counsel)
                                    Jay R. Harris (appellate counsel)
                                    Walters, Balido & Crain, L.L.P.
                                    Meadow Park Tower, Suite 1500
                                    10440 North Central Expressway
                                    Dallas, Texas 75231;


                                       i
                                    Brett Payne (trial counsel)
                                    Katherine Sacra McLean (trial counsel)
                                    Walters, Balido & Crain, L.L.P.
                                    9020 North Capitol of Texas Highway
                                    Building II, Suite 225
                                    Austin, Texas 78759; and

5.    Trial Judge:                  The Honorable Amy Clark Meachum,
                                    Presiding Judge of the 345th Judicial
                                    District Court of Travis County

      For clarity and convenience, Appellant Guillermo Ochoa-Cronfel will

be referred to as “Cronfel”; Appellee Patrick C. Murray will be referred to

as “Murray”; and the Honorable Amy Clark Meachum, Presiding Judge of

the 345th Judicial District Court of Travis County, will be referred to as the

“trial court.”

      The record on appeal consists of a one-volume Clerk’s Record which

will be cited by page number as “[CR __],” a one-volume Supplemental

Clerk’s Record which will be cited by page number as “[SCR __],” and a

seven-volume Reporter’s Record which will be cited as “[__ RR __].”




                                      ii
            STATEMENT REGARDING ORAL ARGUMENT

     This matter presents no novel or complex issues. Oral argument is

unnecessary because the dispositive issues have been authoritatively

decided and the facts and legal arguments are adequately presented in the

briefs and record. Moreover, the Court’s decisional process would not be

significantly aided by oral argument. In this regard, oral argument would

not clarify the parties’ written arguments or help the Court understand the

issues presented, as the briefing has accomplished this.     Nevertheless,

should the Court elect to hear oral argument regarding this matter, Murray

respectfully asks for the opportunity to present same.




                                     iii
                                     TABLE OF CONTENTS

LIST OF PARTIES AND THEIR COUNSEL.....................................................i

STATEMENT REGARDING ORAL ARGUMENT ...................................... iii

TABLE OF CONTENTS...................................................................................... iv

TABLE OF AUTHORITIES................................................................................ vi

STATEMENT OF THE CASE ............................................................................ xi

ISSUES PRESENTED FOR REVIEW .............................................................. xii

STATEMENT OF FACTS ..................................................................................... 1

        1.      Cronfel’s Lawsuit ............................................................................... 1
        2.      The Discovery Sanction ..................................................................... 2
        3.      The Trial & Jury Verdict .................................................................. 10
        4.      Cronfel’s Expert Testified as to His Previous and
                Subsequent Wrist Injuries, as Well as History of
                Sporadic Treatment .......................................................................... 13
        5.      Cronfel’s Testimony Lacked Credibility ....................................... 29

SUMMARY OF THE ARGUMENT ................................................................. 39

ARGUMENTS AND AUTHORITIES ............................................................. 40

        A.      The Standard of Review .................................................................. 40

                1.      Legal Sufficiency ....................................................................... 40
                2.      Factual Sufficiency – Against the Great Weight
                        and Preponderance of the Evidence .......................................... 42
                3.      A Court May Not Substitute Its Judgment for that
                        of the Jury’s ............................................................................... 44




                                                        iv
       B.      The Jury’s Negligence Finding as to Cronfel Is Supported
               By Legally and Factually Sufficient Evidence .............................. 46

       C.      The Evidence Is Factually Sufficient to Support the Jury’s
               Damage Awards ............................................................................... 52

       D.      The Trial Court’s Discovery Sanction Was Not an Abuse
               of Discretion ...................................................................................... 63

CONCLUSION AND PRAYER......................................................................... 68

CERTIFICATE OF COMPLIANCE .................................................................. 70

CERTIFICATE OF SERVICE ............................................................................. 71




                                                        v
                                  TABLE OF AUTHORITIES

                                                  Cases

Armadillo Bail Bonds v. State, 802 S.W.2d 237 (Tex. Crim. App. 1990) ........... 65

Barrajas v. VIA Metro. Transit Auth.,
945 S.W.2d 207 (Tex. App.–San Antonio 1997, no writ) .................................. 62

Barrios v. King Fisher Marine Serv., L.P.,
2010 Tex. App. LEXIS 3955 (Tex. App.–Corpus Christi
May 27, 2010, pet. denied) ............................................................................. 62-63

In re Bennett, 960 S.W.2d 35 (Tex. 1997) ............................................................. 65

Berry-Parks Rental Equip. Co. v. Sinsheimer,
842 S.W.2d 754 (Tex. App.–Houston [1st Dist.] 1992, no writ) ...................... 67

Braden v. Downey, 811 S.W.2d 922 (Tex. 1991)................................................... 66

Bradford v. Vento, 48 S.W.3d 749 (Tex. 2001) ...................................................... 42

Briones v. Levine’s Dep’t Store, Inc., 446 S.W.2d 7 (Tex. 1969) .......................... 45

Broesche v. Jacobson,
218 S.W.3d 267 (Tex. App.–Houston [14th Dist.] 2007, pet. denied) ............. 67

Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497 (Tex. 1995) ........................... 42

Cain v. Bain, 709 S.W.2d 175 (Tex. 1986) ............................................................ 46

Chrysler Corp. v. Blackmon, 841 S.W.2d 844 (Tex. 1992) .................................... 66

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ..............................40, 41, 44

Clancy v. Zale Corp.,
705 S.W.2d 820 (Tex. App.–Dallas 1986, writ ref’d n.r.e.) ............................... 45


                                                     vi
Croucher v. Croucher, 660 S.W.2d 55 (Tex. 1983) .......................................... 41-42

Crow v. Burnett, 951 S.W.2d 894 (Tex. App.–Waco 1997, writ denied) ......... 62

Dallas County Constable v. Kingvision Pay-Per-View,
219 S.W.3d 602 (Tex. App.–Dallas 2007, no pet.)............................................. 65

Dawson v. Briggs,
107 S.W.3d 739 (Tex. App.–Fort Worth 2002, no pet.) ..................................... 52

In re Does 1-10, 242 S.W.3d 805 (Tex. App.–Texarkana 2007, no pet.) ........... 64

Dow Chem. Co. v. Francis, 46 S.W.3d 237 (Tex. 2001) ........................................ 42

Dresser Indus., Inc. v. Lee, 880 S.W.2d 750 (Tex. 1993) ..................................... 44

Eberle v. Adams,
73 S.W.3d 322 (Tex. App.–Houston [1st Dist.] 2001, pet. denied) ................. 46

Eichelberger v. Eichelberger, 582 S.W.2d 395 (Tex. 1979) .................................... 65

Finlan v. Peavy, 205 S.W.3d 647 (Tex. App.–Waco 2006, no pet.) ................... 65

Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) ..............................40, 41

Garza v. Alviar, 395 S.W.2d 821 (Tex. 1965)........................................................ 43

Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757 (Tex. 2003) .................... 44

Gonzalez v. Wal-Mart Stores, Inc.,
143 S.W.3d 118 (Tex. App.–San Antonio 2004, no pet.)................................... 62

Greiner v. Jameson,
865 S.W.2d 493 (Tex. App.–Dallas 1993, writ denied) ..................................... 67

Herbert v. Herbert, 754 S.W.2d 141 (Tex. 1988) ................................................... 45


                                                 vii
Hooper v. Smallwood,
270 S.W.3d 234 (Tex. App.–Texarkana 2008, pet. denied) .............................. 42

Hyler v. Boytor,
823 S.W.2d 425 (Tex. App.–Houston [1st Dist.] 1992, no writ) ...................... 62

IFC Credit Corp. v. Specialty Optical Sys.,
252 S.W.3d 761 (Tex. App.–Dallas 2008, pet. denied) ...................................... 65

Ins. Network of Tex. v. Kloesel,
266 S.W.3d 456 (Tex. App.–Corpus Christi 2008, pet. denied)....................... 42

In re K.A.R.,
171 S.W.3d 705 (Tex. App.–Houston [14th Dist.] 2005, no pet.)..................... 65

Kentucky Cent. Life Ins. Co. v. Fannin,
575 S.W.2d 76 (Tex. Civ. App.–Amarillo 1978, no writ) .................................. 46

Kutch v. Del Mar College,
831 S.W.2d 506 (Tex. App.–Corpus Christi 1992, no writ)........................64, 65

Lawrence v. Kohl,
853 S.W.2d 697 (Tex. App.–Houston [1st Dist.] 1993, no pet.) ....................... 66

Low v. Henry, 221 S.W.3d 609 (Tex. 2007) .......................................................... 66

Luna v. Torres, 2009 Tex. App. LEXIS 6972
(Tex. App.–Corpus Christi August 31, 2009, no pet.) ...................................... 61

M.D. Anderson Hosp. & Tumor Inst. v. Felter,
837 S.W.2d 245 (Tex. App.–Houston [1st Dist.] 1992, no writ) ...................... 45

McDonald v. Dankworth,
212 S.W.3d 336 (Tex. App.–Austin 2006, no pet.)......................................passim




                                                 viii
McGuffin v. Terrell,
732 S.W.2d 425 (Tex. Civ. App.–Fort Worth 1987, no writ) ......................57, 62

Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) .................... 42

In re N.R.C.,
94 S.W.3d 799 (Tex. App.–Houston [14th Dist.] 2002, pet. denied) ............... 64

Oakley v. C.E. Duke’s Wrecker Service,
557 S.W.2d 810 (Tex. Civ. App.–Houston [1st Dist.] 1977,
writ ref’d n.r.e.) ...................................................................................................... 49

Onstad v. Wright,
54 S.W.3d 799 (Tex. App.–Texarkana 2001, pet. denied) ................................ 64

Pilkington v. Kornell,
822 S.W.2d 223 (Tex. App.–Dallas 1991, writ denied) ..................................... 52

Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442 (Tex. 1989) ........................... 43

Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986) ........................................... 43

Public Util. Comm’n v. Cofer, 754 S.W.2d 121 (Tex. 1988) ................................. 64

Rash v. Whisennand,
453 S.W.2d 353 (Tex. Civ. App.–Houston [14th Dist.] 1970,
writ ref’d n.r.e) ....................................................................................................... 49

Raw Hide Oil & Gas, Inc. v. Maxus Expl. Co.,
766 S.W.2d 264 (Tex. App. 1988, writ denied) .................................................. 43

Scott Bader, Inc. v. Sandstone Prods.,
248 S.W.3d 802 (Tex. App.–Houston [1st Dist.] 2008, no pet.) ....................... 67

Silcott v. Oglesby, 721 S.W.2d 290 (Tex. 1986) .................................................... 44




                                                            ix
State v. PR Invs.,
180 S.W.3d 654 (Tex. App.–Houston [14th Dist.] 2005) ................................... 67

Thompson v. Davis, 901 S.W.2d 939 (Tex. 1995) ................................................. 67

TransAmerican v. Powell, 811 S.W.2d 913 (Tex. 1991) ....................................... 67

Traylor v. Goulding, 497 S.W.2d 944 (Tex. 1973) ................................................ 44

Vaughn v. Tex. Employment Comm’n,
792 S.W.2d 139 (Tex. App.–Houston [1st Dist.] 1990, no writ) ...................... 66


                                             Other Authorities

Texas Rule of Appellate Procedure 38.1(a) ..........................................................i

Texas Rule of Appellate Procedure 38.2(a)(1)(A) ................................................i

TEX. R. CIV. P. 215................................................................................................... 66

TEX. R. CIV. P. 215.3................................................................................................ 66




                                                           x
                       STATEMENT OF THE CASE

      This appeal arises from cause number D-1-GN-11-002136, styled

Guillermo Ochoa-Cronfel v. Patrick C. Murray, pending in 345th Judicial

District Court of Travis County, the Honorable Amy Clark Meachum

presiding.   The underlying lawsuit arose out of a purported collision

between Cronfel’s bicycle and Murray’s dog on July 23, 2009. [CR 5.]

During the course of discovery, Cronfel was sanctioned $5,000.00 for failing

to comply with its written orders and necessitating numerous motions,

hearings, and court intervention. [CR 413.]

      Cronfel’s claims proceeded to trial on November 17, 2014. [I RR 1].

The jury determined both Cronfel and Murray were negligent in causing

the injuries at issue, attributed 55% of the responsibility to Murray and 45%

to Cronfel, and determined Cronfel’s past and future damages to be

$18,345.00 as a result of the accident. [V RR 52-54.] The trial court entered

its final judgment on the jury’s verdict on January 28, 2015. [SCR 3-5.]

      Thereafter, Cronfel filed a motion for judgment notwithstanding the

verdict [CR 519-21], which the trial court denied [VI RR 4-14]. Cronfel also

filed a motion for new trial [CR 527-34], which the trial court denied [CR

543]. Thereafter, Cronfel filed this appeal [CR 545-46].


                                      xi
             ISSUES PRESENTED FOR REVIEW

Cronfel’s appeal presents the following issues for the Court’s review:

     1.    Was there legally and factually sufficient
           evidence to support the jury’s verdict
           attributing 45% of the responsibility for the
           accident to Cronfel?

     2.    Was there legally and factually sufficient
           evidence to support the jury’s verdict as to
           amounts which would fairly and reasonably
           compensate Cronfel for his injuries, if any,
           that resulted from accident at issue?

     3.    Did the trial court abuse its discretion in
           imposing a sanction against Cronfel?




                               xii
                         STATEMENT OF FACTS

1.   Cronfel’s Lawsuit

     On July 14, 2011, Cronfel brought suit against Murray because of a

collision between Murray’s dog and Cronfel’s bicycle, which occurred

almost two years earlier (on July 23, 2009) (the “accident”).      [CR 4-8.]

Cronfel subsequently filed his first amended petition (the live pleading),

which described the accident as follows:

           7.    On or about July 23, 2009, [Cronfel] was
           riding his bicycle in his neighborhood . . .. On the
           same date and time, [Murray] was in the
           neighborhood walking his dog. [Murray’s] dog, a
           German Shorthair hunting breed, got out of
           [Murray’s] control and ran toward and jumped into
           [Cronfel’s] bicycle. The collision knocked the front
           wheel of [Cronfel’s] bicycle out from under him,
           causing him to fly off the bicycle and slam into the
           asphalt pavement, causing severe bodily injuries.

           8.    . . . [Murray] was the owner of the dog, that
           proximately caused [Cronfel’s] injuries and
           damages. [Murray] allowed the dog to roam the
           neighborhood freely, and failed to control his dog in
           accordance with City of Austin laws and the
           applicable deed restrictions governing [Murray’s]
           property within the Travis Country subdivision. As
           a result of [Murray’s] conduct, [Cronfel] has
           suffered severe personal injuries and will require
           multiple surgical interventions.

[CR 13.]


                                     1
      Based on these factual allegations, Cronfel asserted negligence and

negligence per se claims against Murray.        [CR 13-14.]   Cronfel further

asserted the acts or omissions of Murray breached the homeowner’s

association restrictive covenants and regulations regarding control of pets

which also was a proximate cause of his alleged injuries. [Id. at 14.]

2.    The Discovery Sanction

      The Clerk’s Record includes the final motion for death penalty

sanctions or alternatively motion to enforce order [starting at CR 176] and

its attached exhibits [CR 185-354].       The exhibits attached to the death

penalty motion are:

            (1)   Murray’s initial motion to compel [CR 217-20]
                  and its attached exhibits [CR 221-46];

            (2)   Murray’s amended motion to compel [CR
                  248-52] and its attached exhibits [CR 253-325];
                  and

            (3)   Murray’s motion to compel responses to the
                  subpoena duces tecum served on Lown and
                  motion to compel responses to Murray’s
                  second request for production of documents
                  [CR 340-43] and its attached exhibits [CR 344-
                  54].




                                      2
      Additionally, the record contains following orders and directives

from the trial court related to the discovery sanction at issue:

            (1)   the March 5, 2014 order granting Murray’s
                  motion and amended motion to compel and
                  expressly “ordered [Cronfel] to provide a
                  fully executed, Authorization to Disclose
                  Protected Health Information by March 6,
                  2014 at noon and to further waive the notice
                  period” [CR 327] (emphasis added);

            (2)   the March 21, 2014 correspondence from the
                  Honorable Judge Stephen Yelenosky in
                  response to Cronfel’s motion for emergency
                  protection from discovery to protect
                  privileged medical records wherein the trial
                  court states:

                        After my staff gave [Cronfel] a
                        setting for this afternoon on
                        [Cronfel’s] Emergency Motion for
                        Protection from Discovery to
                        Protect     Privileged     Medical
                        Records, I reviewed the motion.
                        [Cronfel] has known since Judge
                        Triana signed her order that he
                        was to provide the releases
                        without the restrictions now
                        sought. [Cronfel] is charged with
                        knowing that his medical records
                        would contain at least some
                        irrelevant material. So there is no
                        emergency that has just arisen.




                                       3
                      Since the relief sought would be
                      contrary to Judge Triana's Order
                      Granting [Murray’s] Motion to
                      Compel, she is the judge you
                      should contact if you wish to
                      request a setting with her on the
                      Central Docket or otherwise at her
                      direction.

                 [CR 338] (emphasis added);

           (3)   the September 18, 2014 order instructing
                 Cronfel to “produce a signed authorization
                 releasing [Lown’s] complete medical chart for
                 [Cronfel] by tomorrow September 19, 2014”
                 [CR 187; 382] (emphasis added); and

           (4)   the October 31, 2014 order granting Murray’s
                 motion for sanctions and awarding same
                 $5,000.00 in attorneys’ fees to “cover the
                 attorney's fees that [Murray] incurred in
                 response to this motion and all prior
                 underlying hearings on prior motions to
                 compel, and in part as sanctions for
                 objectionable conduct, including but not
                 limited    to   [Cronfel’s]    altering  the
                 authorization form attached to the Order of
                 the Court, signed and filed on September 18,
                 2014 [CR 413] (emphasis added).

     The tale of the discovery sanction begins with Murray’s initial set of

discovery served on Cronfel. Cronfel responded to Murray’s initial set of

discovery on August 6, 2012. [CR 202-15.] This discovery included the

following interrogatory and response:


                                    4
INTERROGATORY NO. 13: State the names,
addresses and telephone number of all physicians
or other practitioners of the medical arts who have
examined or treated you in the past ten (10) years
and please state for what ailment, disease, condition
or injury you were treated by each such physician
or practitioner and the approximate dates of such
treatments.

ANSWER:        [Cronfel] objects to Interrogatory
number thirteen in that it requests [Cronfel’s]
private information in requesting treatment for
matters that have nothing to do with this claim.
Such information is not relevant nor shall it lead to
the discovery of admissible evidence. Further the
request for such information is harassing and
overbroad, vague and ambiguous. [Cronfel] had
no prior injuries to his right forearm or right wrist.

             *            *            *

INTERROGATORY NO. 16: Are you under the care
of any physician or other health care providers at
this time? lf so, please state the name, address and
telephone number of all such physicians or health
care providers.

ANSWER:       [Cronfel] objects to Interrogatory
number 16 in that it requests [Cronfel’s] private
information in requesting information for matters
that have nothing to do with this claim. Such
information is not relevant nor shall it lead to the
discovery of admissible evidence. Further the
request for such information is harassing and
overbroad, vague and ambiguous. [Cronfel] is
currently under the care of [Ira Lown, M.D.
(“Lown”)] related to this incident, and his medical


                          5
           records will be provided.

[CR 208-9; emphasis added.]

     This discovery also included the following request for production

and response:

           4.    True and correct copies of the medical and/or
                 employment authorization attached to the
                 [Murray’s] First Set of Interrogatories to
                 [Cronfel].

                 [Cronfel] objects to RFP number four in that it
                 requests [Cronfel’s] private information in
                 requesting such information and that such
                 information is not relevant nor shall it lead to
                 the discovery of admissible evidence. Further
                 the request for such information is harassing
                 and overbroad, vague and ambiguous.
                 [Cronfel] will produce all medical records
                 and billing records in the form of business
                 records affidavit and medical billing records
                 affidavits.

[CR 213; emphasis added.]

     By August 16, 2013, Cronfel had failed and refused to provide any

medical records – despite his previous representation to contrary. [CR 177,

218.] Accordingly, Murray was forced to prepare and file a motion to

compel. [CR 217-46.] Prior to this hearing, however, Cronfel and Murray

reached an agreement that Cronfel would produce a complete copy of all of



                                     6
his medical records, including those of Lown. [CR 249.] Although Cronfel

produced some records, it was clear Cronfel had cherry-picked his records

and only produced those favorable to his claim. [Id.] Cronfel’s failure to

fully respond became more apparent during the deposition of his medical

expert, James Robison, IV, M.D., on February 18, 2014. [Id. at 249-50.]

       Based on Dr. Robison’s testimony, Murray served depositions on

written questions on the medical providers identified by Dr. Robison. [CR

250.] Murray also sent correspondence to Cronfel requesting he waive the

notice period so the records sought could be retrieved prior to the rapidly

approaching trial date.          [Id.]   Cronfel did not respond, necessitating a

second amended motion to compel. [CR 248.]

       The trial court heard Murray’s original and amended motions to

compel and entered an order directing Cronfel to execute an unrestricted

medical authorization, entitling Murray to obtain the complete medical

records from the medical providers identified by Dr. Robison.1 [CR 327.]

Despite the trial court’s explicit directive, Cronfel failed to provide the

authorization by the date specified in the order. [CR 178; 329-30.]



1
  Dr. Walters (a hand specialist), Healthsound Hand Clinic, and Select Physical Therapy from
January 2005 through the present (i.e., March 2014).


                                               7
     On March 7, 2014, Cronfel finally provided Murray with a limited

medical authorization in violation of the trial court’s order. [Id.] Shortly

thereafter, Cronfel sought to further limit Murray’s discovery by filing an

emergency motion for protection. [CR 332-34.] Cronfel asked the trial

court to protect certain records which were obtained pursuant to his prior

authorization. [Id.] However, the trial court rejected Cronfel’s request

stating Cronfel was fully aware since the entry of the prior order that he

was to provide medical releases without the restrictions he was now

seeking. [Id. at 338.] Critically, the medical records sought included those

of Lown – Cronfel’s testifying medical expert.

     Murray then noticed Lown’s deposition and included a subpoena

duces tecum, seeking his complete medical chart regarding Cronfel. [Id. at

345-47.] However, Cronfel and Lown, although initially stating they would

provide it [Id. at 349], later reneged on that promise and refused to provide

the chart (as evidenced by Murray’s motion to compel) [Id. at 340-43].

Thus, Murray filed a third motion to compel requesting the medical chart.

[CR 176-84.] The trial court heard Murray’s third motion on September 18,

2014, and ordered Cronfel “to produce a signed authorization releasing Dr.

Ira Lown’s complete medical chart for [Cronfel] by tomorrow, September

                                      8
19, 2014.” [CR 187; 382.]

      In addition to sending the foregoing order to Cronfel, the trial court

went so far as to include the very medical authorization it directed him to

sign. [Id.] Nevertheless, Cronfel chose to ignore the trial court’s explicit

order – making unilateral handwritten changes to the authorization

provided by the trial court (i.e., limiting the medical records to be released

to Murray). [Id. at 190.]

      On October 7, 2014, Murray filed a motion for death penalty

sanctions (with exhibits). [CR 176-354.] Included with this motion was

Murray’s original motion to compel (with its exhibits) [Id. at 217-46], his

amended motion to compel (with exhibits) [Id. at 248-325], and his third

motion to compel (with exhibits) [Id. at 340-54].       Murray also filed a

supplemental motion for death penalty sanctions. [Id. at 355-65.]

      After conducting a hearing, the trial court entered an order imposing

a $5,000.00 sanction against Cronfel:

            IT IS ORDERED that the portion of [Murray’s]
            motion seeking death penalty sanctions is denied at
            this time, and the Court will instead award lesser
            monetary sanctions, in part to cover the attorney’s
            fees that [Murray] incurred in response to this
            motion and all prior underlying hearings on prior
            motions to compel, and in part as sanctions for

                                        9
           objectionable conduct, including but not limited to
           [Cronfel’s] altering the authorization form attached
           to the Order of the Court, signed and filed on
           September 18, 2014;


[CR 413] (emphasis added).

3.   The Trial & Jury Verdict

     The case was called to trial on November 17, 2014. [I RR 1.] After a

three-day trial, the jury returned a verdict assessing Cronfel with 45% of

the fault in causing his related injuries and placing 55% of the

responsibility on Murray. [CR 498-99; V RR 53.] The Charge of the Court,

which also reflects the jury’s verdict, included the following instructions

and definitions, provides as follows:

                 INSTRUCTIONS AND DEFINITIONS

           “Negligence” means failure to use ordinary care,
           that is, failing to do that which a person of ordinary
           prudence would have done under the same or
           similar circumstances or doing that which a person
           of ordinary prudence would not have done under
           the same or similar circumstances.

           “Ordinary care” means that degree of care that
           would be used by a person of ordinary prudence
           under the same or similar circumstances.

           “Proximate cause” means a cause that was a
           substantial factor in bringing about an event, and


                                        10
without which cause such event would not have
occurred. In order to be a proximate cause, the act
or omission complained of must be such that a
person using ordinary care would have foreseen
that the event, or some similar event, might
reasonably result therefrom. There may be more
than one proximate cause of an event.

Did the negligence, if any, of those named below
proximately cause the injury in question?

            QUESTION 1

Answer “Yes” or “No” for each of the following:

1.   Patrick Murray                    YES

2.   Guillermo Ochoa-Cronfel           YES

If you have answered “Yes” to Question 1 for more
than one of those named below, then answer the
following question. Otherwise, do not answer the
following question.

Assign percentages of responsibility only to those
you found caused or contributed to cause the
injury. The percentages you find must total 100
percent. The percentages must be expressed in
whole numbers. The percentage of responsibility
attributable to any one is not necessarily measured
by the number of acts or omissions found. The
percentage attributable to any one need not be the
same percentage attributed to that one in answering
another question.




                        11
                         QUESTION 2

           For each of those named below that you found
           caused or contributed to cause the injury, find the
           percentage of responsibility attributable to each:

           1.    Patrick Murray               55%

           2.    Guillermo Ochoa-Cronfel      45%

                 Total                        100%

[CR 497-99.]

     Additionally, the jury determined the following sums of money

would reasonably and fairly compensate Cronfel for his injuries:

           1.    Physical pain and mental anguish sustained in
                 the past.

                 Answer: $2,500.00

           2.    Physical pain and mental anguish that, in
                 reasonable probability, [Cronfel] will sustain
                 in the future.

                 Answer: $1,000.00

           3.    Physical impairment sustained

                 Answer: $500.00

           4.    Physical impairment that, in reasonable
                 probability, [Cronfel] will sustain in the
                 future.



                                     12
                        Answer: $2,000.00

                 5.     Medical care expenses incurred in the past.

                        Answer: $9345.00

                 6.     Medical care expenses that, in reasonable
                        probability, [Cronfel] will incur in the future.

                        Answer: $3,000.00

                 7.     Disfigurement sustained in the past.

                        Answer: $ 0

                 8.     Disfigurement that, in reasonable probability,
                        [Cronfel] will sustain the future.

                        Answer: $ 0

[Id. at 500-01.]

4.       Cronfel’s Expert Testified as to His Previous and Subsequent Wrist
         Injuries, as Well as History of Sporadic Treatment.

         At the outset of Dr. Lown’s2 cross-examination, the jury heard

testimony that Cronfel had injured the same wrist, in the same manner, in a

bicycle accident four years earlier. [IV RR 89-95.] Further, the jury learned

Lown had not treated Cronfel until August of 2011, more than two years after

the accident. [Id.] Indeed, the jury was also told Cronfel never sought to


2
    Dr. Lown was Cronfel’s retained expert witness.


                                                13
have his previously injured writ surgically repaired.

           Q:    And just so we're clear, you’ll recall you were
                 asked questions that -- and I’m paraphrasing.
                 But the idea was that it’s – it’s better to lay
                 hands on a patient, to actually examine them
                 to offer a more thorough opinion?

           A.    That’s correct.

           Q.    And that was kind of the nature of those
                 questions. And you agree you never met
                 [Cronfel] until August of 2011, correct?

           A.    That’s correct.

           Q.    That’s more than two years after the accident
                 that forms the basis of this lawsuit, correct?

           A.    That’s correct.

           Q.    And it’s another three-and-a-half years before
                 this event of 2005, correct?

           A.    Yes.

           Q.    And so whatever occurred right at the time of
                 November of 2005, you did not lay hands on
                 [Cronfel] and examine him in any way,
                 correct?

           A.    That’s correct.

           Q.    You don’t -- you didn’t examine him, visit
                 with him, take a history from him, review his
                 actual films in connection with that 2005
                 event, correct?

                                     14
A.   That’s correct.

Q.   All right. And, likewise, within the two years
     following the 2009 event, you did not lay
     hands on [Cronfel], examine him, review his
     films, for two years later?

A.   That’s correct.

Q.   Now -- but you agree we -- we talked about
     this in your deposition. [Cronfel] did, in fact,
     have an almost identical, certainly a very
     similar, bike wreck in November of 2005. You
     understand that’s true?

A.   Yes

             *           *            *

Q.   And you understand that [Cronfel] saw Dr.
     Walters following that fall, correct?

A.   That’s correct.

Q.   And Dr. Walters, he was a well-reputed hand
     surgeon in the local community before his
     untimely death, correct?

A.   Yes, he was.

Q.   He was a respected surgeon?

A.   Yes.

Q.   And you understood that Dr. Walters,
     following this fall and the history that

                        15
     [Cronfel] gave, had [Cronfel] undergo a CT
     scan of his wrist, did he not?

A.   That’s correct.

Q.   And that CT scan, which I finally have been
     able to bring up on the screen -- well, let’s just
     go through it together and we can -- well, here
     we go, maybe. . . . . You talked about this a
     little bit with Mr. Cagle. That CT scan in
     November, it was taken November 16th of
     2005, showed this widening, mild, but albeit
     widening, at the scapholunate articulation,
     correct?

A.   That’s correct.

Q.   And that is the same widening that you had
     discussed that eventually -- or you had offered
     the opinion will lead to surgery in 2014-2015,
     correct?

A.   That’s correct.

Q.   And Dr. Walters, or this -- this CT scan also
     referenced a concern with a ligamentous -- is
     that how you say that?

A.   That’s correct.

Q.   Ligamentous injury, meaning an injury to the
     ligament, but it doesn’t show up – that’s the
     kind of thing that doesn't show up on a CT
     scan, right?

A.   That’s correct.



                         16
Q.   So he referred [Cronfel] for an MRI, true?

A.   That’s true.

Q.   So [Cronfel] -- and, of course, you have not
     had the benefit of the actual review of that CT
     scan of November 16th, true?

A.   That’s true.

Q.   You haven’t seen the film?

A.   I’ve seen the reports.

Q.   And, likewise, you haven’t seen the MRI that
     was taken on December the 20th. Here it is.
     December 20th, the MRI that Dr. Walters
     wanted [Cronfel] to undergo, he did, in fact,
     have that MRI of his right wrist, correct?

A.   That’s correct.

Q.   And that MRI revealed this disruption, which
     is another word for tear, correct?

A.   That’s correct.

Q.   The MRI taken three-and-a-half years before
     the fall in July ‘09 showed that [Cronfel]
     already had a tear at this scapholunate
     ligament, true?

A.   That’s correct, yes.

Q.   It doesn’t say mild and it doesn’t say the
     location. It simply says disruption, correct?



                            17
A.   That’s correct.

Q.   And, again, this particular tear is the topic or
     the subject that’s going to lead to this four-
     corner fusion that you want to perform?

A.   That’s correct.

Q.   And this tear is evidenced as far back as 2005,
     December of that year, correct?

A.   Yes.

Q.   2005 [Cronfel] already has a tear in this part of
     his wrist, as evidenced by this MRI, correct?

A.   That’s correct.

             *           *            *

Q.   And now that I finally got this working, just
     so that we’re clear, the initial record shows
     that [Cronfel] fell off bicycle. Tried to break
     fall with right hand. Pain along pinky down
     to the wrist. Limits use. Do you see that?

A.   I do.

Q.   And that’s what led to the CT scan and the
     MRI, which revealed the tear in his wrist,
     true?

A.   True.

Q.   And the tear that was evidenced in 2005 and
     the tear that was evidenced following 2009, as
     we sit here today in the end of 2014, five years


                         18
                 after this fall and nine years after the other
                 fall, this tear still has not been addressed by
                 [Cronfel], true, in a surgical way?

           A.    In a surgical way; that’s correct.

[IV RR 89-95 (emphasis added).]

     In contrast to Cronfel’s testimony as to his purported physical pain

and inability to perform routine activities, his medical records and the Dr.

Lown’s testimony painted a much different picture.

           Q.    And within three months of treating with Dr.
                 Windler, [Cronfel] appears there on October
                 21st of 2009, and it says he’s got pain with
                 activities of lifting and push-ups. Do you see
                 that?

           A.    I do.

           Q.    So within three months of the fall in Travis
                 Country that [Cronfel] had, he has resumed
                 his push-ups and weight lifting, true, with
                 pain?

           A.    True.

           Q.    And at that time, within three months of this
                 accident, he has full motion of the wrist and
                 no tenderness over the distal radial or ulnar
                 joint at that time, true according to Dr.
                 Windler’s records?

           A.    That’s true. . . .



                                      19
Q.   But full range of motion, in any event, and no
     tenderness in those areas?

A.   Yes.

Q.   True.

A.   Yes.

Q.   And he appears a year later in 2010, now
     almost a year removed from this event in
     Travis Country. And at that time, he’s still
     having pain, but he’s reporting that he’s still
     doing his bench press, his pull-ups, and his
     push-ups, is he not?

A.   He is.

Q.   So, again, a year after this accident, [Cronfel]
     is still engaging in his weight lifting activities
     despite whatever’s going on in his wrist, true?

A.   That’s correct.

Q.   And then the June -- he gets a -- an X-ray on
     July 21st, 2010. And just so there’s no
     question, at that time, a year after this
     accident, there’s no change in the wrist X-ray
     compared to the prior wrist X-ray, the date
     after this accident, true?

A.   That’s correct.

Q.   So within a year of this accident, his wrist is
     unchanged, true?

A.   True.

                         20
Q.   And then [Cronfel] begins to treat with
     [Lown] on August 11, 2011 and continues to
     treat with [Lown] . . . to date. But, in
     particular, he treats with you on February the
     2nd of 2012, does he not?

A.   He does.

Q.   And at that time, again, he is very physically
     active with a constant exercise regimen, true?

A.   That’s true.

             *           *            *

Q.   And at that time [Cronfel], I guess the -- it
     seems to me, my interpretation is the therapist
     is getting onto him that he's not icing, but he -
     - but he hurts after his exercise, this joint --
     this joint pain hand hurts after exercise, and
     he's not icing it.

A.   That’s correct.

Q.   That’s what’s reflected in this record?

A.   Uh-huh.

Q.   And the therapist tells him he needs to
     stretch, pre-strengthening at the gym, and he
     needs to use ice post-exercise and he’s not
     doing it.

A.   That’s correct.




                         21
           Q.    Is that what’s reflected in this record? And
                 then he returns to either you or your physical
                 therapist in March of 2012, and, again, he’s
                 complaining that during a workout he
                 torqued his right wrist forcing his shoulder
                 into hyperextension, and I don’t know if ER
                 means emergency room or not. But in any
                 event, he torqued his right wrist while lifting,
                 sometime immediately before Feb- -- pardon
                 me, March 20th of 2012, true?

           A.    True.

           Q.    And, you know, with weight lifting, I mean,
                 that’s certainly something that’s foreseeable.
                 You can torque your wrist while lifting
                 weights?

           A.    True.

           Q.    You can torque your wrist while lifting kettle
                 bells, in particular, true?

           A.    True.

           Q.    And that’s what appears to have happened
                 with [Cronfel] in March two years ago, true,
                 according to this record, he torqued his right
                 wrist?

           A.    Yes.

[IV RR 95-99.]




                                    22
      By November of 2012 – approximately three years after the accident –

the medical records (and testimony expert testimony) presented to the jury

showed that Cronfel was physically able to go deer hunting, including

loading all of his supplies and that he continued his rigorous physical

fitness workout regimen. [CR 100.] In fact, Cronfel injured himself while

working out with kettle weight-bells and heavy weights (against the

specific advice of his physical therapist and Lown). [IV RR 95-99.]

      In March of 2013, Cronfel returned to see Dr. Lown, complaining of

pain in his right hand – yet, the records reveal Cronfel’s complaints in his

right hand or wrist were the result of a separate and distinct bicycle accident,

which occurred in August of 2012 – i.e., over three years after the accident

at issue.

            Q.    Now, [Cronfel], again, returns to your office
                  on March 5th of 2013, this past year, and he’s
                  talking about his right hand still hurts, but the
                  left is better. Do you see that?

            A.    I do.

            Q.    And then he returns again two weeks later,
                  and he's still complaining of this right hand
                  pain. But here's what is interesting here: On
                  your medical record, on March 29th, 2013, it
                  contains a reference to HPI. And what does
                  HPI stand for on your medical records?


                                      23
A.   History of present illness.

Q.   And so this was with respect to [Cronfel’s]
     right wrist. His history of present illness is
     what?

A.   I’m sorry?

Q.   What’s [Cronfel’s] history of present illness?

A.   Bicycle riding August 5th, 2012.

Q.   Okay. And just so we’re clear, according to
     your medical record from your office,
     [Cronfel] is complaining of right wrist pain,
     and the history provided for his right wrist
     pain last year, was a bicycle accident on
     August the 5th of -- bicycle riding on August
     the 5th of 2012, true?

A.   That’s what it says.

Q.   And then he returns again on August –
     pardon me, May 28th, and he had an event at
     the Westlake – or it took him to the Westlake
     Hospital. He comes to your office, and he’s
     talking about, he woke up on May 25th with
     swelling and pain in his right wrist. And,
     again, what is the history of his present
     illness?

A.   August 5th, 2012.

Q.   So, again, [Cronfel] woke up and, in fact -- let
     me just show you the record. He goes to
     Westlake      Hospital    emergency      room
     complaining of right wrist pain, and it’s

                            24
     talking about, had soft tissue mobilization. I
     can’t make out a lot of this. But having
     painful swelling at right wrist, which – so
     painful that it took him to the ER at Westlake,
     correct?

A.   Correct.

Q.   And he follows up with your office again the
     next day, after having to go to the emergency
     room and the history of present illness. What
     took him to the emergency room was
     whatever happened bicycle riding on August
     5th of 2012, true?

A.   That’s what the record says.

Q.   And that’s what three other records before
     that say, do they not?

A.   They do.

Q.   As do subsequent records where he’s, again,
     complaining of right wrist pain, and your
     therapist reports, Patient doesn’t wear his
     splint very often because it gets in the way.
     Do you see that?

A.   I do.

Q.   And so he’s there treating, still for his right
     wrist with a history of present illness of
     August the 5th of 2012, true?

A.   True.




                        25
           Q.     And not to beat a dead horse, but this occurs
                  again on -- on December 31st, he’s at your
                  office complaining, same history. He’s there
                  again in March of this year, same history.
                  He’s there in July of this year, same history.
                  He’s there in August, same history. And then
                  you perform the surgery to the right wrist,
                  this one you’ve described to this jury. And
                  what does the narrative say? This is -- this is a
                  couple of months ago, September 11th, 2014.
                  At that time, this is the -- this is the history
                  that you give in the narrative, correct?

           A.     Correct.

           Q.     What does it say? This is a 56-year-old male
                  who is riding his bike and was hit by a car
                  on August the 5th of 2012 and sustained a
                  radial head fracture with some slight
                  shortening after this heal. The report that you
                  submitted, or the narrative report that you
                  created in connection with your surgery done
                  a couple of months ago, references a whole
                  new third accident involving a car in 2012,
                  does it not?

[IV RR 101-04.]

     Incredibly, Dr. Lown blithely suggested the dozen or more references

to Cronfel’s August 2012 collision with an automobile was a mistake or the

fault of his medical assistant. [Id. at 105.] Further undermining Cronfel’s

efforts to relate his recent complaints to the incident involving Murray’s

dog in July of 2009 were the medical records Cronfel placed in evidence


                                      26
demonstrated that by October of 2009, his right wrist had full range of

motion and was found, upon examination, to be “normal.”

          Q.    And then he saw Dr. Windler, who saw him
                twice in August, once in September, and once
                in October of ‘09. You’re familiar with those
                records, correct?

          A.    Correct.

          Q.    And we already talked about the October ‘09.
                At the end of October, he’s got full range of
                motion in his wrist, true?

          A.    Correct.

          Q.    And essentially, at that time he had a normal
                exam, did he not?

          A.    I believe so.

          Q.    So -- just so we’re clear, on August 21st of
                2009, Dr. -- according to Dr. Windler’s
                records, [Cronfel’s] wrist exam was normal.

          A.    I believe so.

          Q.    And it was not as best I recall, he was not
                treated again for the right wrist until June of
                2010, some eight months later, where he had
                an injection in his wrist, correct?

          A.    Okay.

          Q.    Do you have any reason to disagree with that?



                                   27
            A.    No.

[IV RR 107.]

      The jury also heard testimony that after Cronfel’s doctor advised him

that his wrist was normal and that he had full range of motion, he did not

seek further treatment for some eight months later, then went another nine

months until seeking treatment, and then still another five months until

going to see Dr. Lown for the first time (which is also just about the time

suit was filed). [IV RR 108.]

      The inconsistencies Murray highlighted to the jury as to Cronfel’s

assertion the 2009 accident was the sole cause of his wrist injury included:

            &     Prior Injury: the evidence showed Cronfel
                  had sustained a virtually identical injury to
                  the same wrist in 2005 [Record cited needed];

            &     No Surgery: the evidence showed Cronfel
                  never sought surgery to repair the previously
                  2005 injury to his right wrist [Record cited
                  needed];

            &     Subsequent Injury: the evidence showed
                  Cronfel had collided with an automobile
                  while riding his bike, which injured the same
                  wrist [Record cited needed];

            &     Full Range of Motion and the Wrist
                  Medically Declared Normal in August 2009:
                  the evidence showed Cronfel had regained


                                     28
                  full range of motion and his wrist was
                  declared    “normal”   by   Dr.   Windler
                  approximately one month after the accident
                  [Record cited needed];

            &     Sporadic and Inconsistent History of
                  Treatment: the evidence showed Cronfel
                  sought sporadic, at best, medical on his wrist,
                  yet maintained an active lifestyle and
                  strenuous exercise regimen, and missed no
                  time from work [Record cited needed].

5.    Cronfel’s Testimony Lacked Credibility.

      Subsequent to the Dr. Lown’s testimony, Cronfel testified that,

contrary to what his medical records said, he never sustained a right wrist

injury in 2005.

            Q.    And, of course, you remember giving your
                  deposition long about a year ago, October of –
                  of 2013, right?

            A.    Yes, sir.

            Q.    And you agree that in your sworn deposition,
                  you told me back then that you had never
                  injured your right wrist before the July 2009
                  event, correct?

            A.    I think that later in that deposition I had sort
                  of cleaned that up a little bit.

            Q.    But at least when I asked you the specific
                  question, prior to the event that we are here
                  for today, had you previously sustained an


                                      29
      injury to your right wrist, do you remember
      what your response was?

A.    What you just said, sir.

Q.    Never, correct?

A.    Yes, sir.

Q.    And you recall that I asked you, prior to the
      event that we are here for today involving Mr.
      Murray’s dog, have you ever seen a
      healthcare provider for the purpose of
      treating right elbow pain or right wrist pain,
      and you answered that I remember, no,
      correct?

A.    Correct.

                  *            *          *

Q.    And you didn’t -- when I took your
      deposition, you didn’t remember having any
      therapy in 2005, and we know that not to be
      true as well, correct?

A.    That’s true.

                  *            *          *

 Q.   And you do agree that you did, in fact, have a
      ligament injury in 2005, correct?

A.    That’s what the medical records say, yes, sir.

Q.    And you did have treatment to your right
      wrist in 2005 with Dr. Walters, correct?

                          30
             A.    I don't remember whether I had treatment
                   with him in 2005 for my wrist.

[IV RR 174-77.]

      Significantly, Cronfel also testified that he injured his right hand and

wrist in a 2007 bicycle accident:

             Q.    And, you just testified you had another
                   bicycle accident in 2007 where you went over
                   the handlebars and you hurt your right hand,
                   correct?

             A.    Yes, sir.

             Q.    And very similarly -- and as a result of that
                   injury, you also had some difficulty typing,
                   difficulty gripping, difficulty writing, correct?

             A.    If that’s what it says, it's true.

[Id. at 177-78.]

      Additionally, Cronfel’s cross-examination yielded the following

telling testimony:

             Q.    Now, this accident occurred, you’ve talked
                   about this, it was on July the 23rd of 2009
                   around 6:00 to 7:00 p.m., correct?

             A.    Somewhere in there, yes, sir.

             Q.    And you’re on a street that you’re familiar
                   with and that you rode often, correct?



                                         31
A.   Yes, sir. That’s correct.


Q.   And prior -- this was -- you talked about this
     earlier. This was your neighborhood. You
     rode it. You had two or three routes in the
     neighborhood you rode hundreds of times,
     correct?

A.   That’s correct, sir.

             *              *        *

Q.   You agree that -- that wherever the contact, if
     any, was, it was at your front wheel, not
     against you and not at your back wheel?

A.   Right. It was the front wheel, yes, you’re
     right, sir.

Q.   And, of course, you were on a road bike?

A.   Yes, sir.

Q.   And the road bikes are such you actually have
     to clip into your pedals where your shoes are
     attached to your pedals, right?

A.   Correct, sir.

Q.   And at the time of the accident, you were
     coming up on parked cars, right?

A.   Correct, sir.

Q.   And you agree you were going pretty fast?



                            32
A.   I was trying to pick up speed, yes, sir.


Q.   And I think the term you might have used
     before is, you were revving up, correct?

A.   Yes, sir. That’s correct.

Q.   You were going pretty fast and revving up
     beside the parked cars, correct?

A.   That is true.

Q.   And you agree that the rules of the road apply
     to bicyclists just like they do to automobile
     drivers, correct?

A.   I would think so.

Q.   The rules of the road apply to bicyclists, true?

A.   I think so, yeah.

Q.   And a bicyclist, like anybody operating a
     motor vehicle on a public street, you’ve got a
     duty to keep a proper lookout, right?

A.   Right.

Q.   You’ve got to look at your surroundings,
     right?

A.   Right.

Q.   Well, in fact, on a bicycle, you’re even more
     vulnerable, and so you’ve got to have this
     heightened sense of everything that’s going on


                         33
     around you, true?

A.   True.

Q.   And I can’t bring that picture back up, but
     you would agree, this roadway is pretty open,
     fairly flat, correct?

A.   It’s kind of an uphill.

Q.   A gradual uphill?

A.   Yes, sir.

Q.   And other than cars parked along the street,
     there’s nothing there to block your view, no
     curves, no big hump in the road, anything like
     that, correct?

A.   Yes, sir.

Q.   It's your testimony and contention, you never
     saw Mr. Murray or his dog at any moment
     before the dog came out in -- in front of you or
     into your path?

A.   Yes, sir.

Q.   And as you were going pretty fast and
     starting to rev up, you never noticed Mr.
     Murray over in the yard, correct?

A.   Yes, sir. That’s correct.

Q.   And we’ve already talked about this, but the
     collision, if any, occurred between your front
     wheel and the animal?


                          34
A.   Yes, sir.

             *          *           *

Q.   Do you know the distance separating you and
     Magnum, the dog, as you noticed that
     something may occur?

A.   He was on top of me when I noticed. It was
     already -- he was already on top of me
     practically.

Q.   Now, when you say on top of you, you don’t
     literally mean on you?

A.   No. He came out from behind a car, or, you
     know, he was coming out from behind a car.
     When I noticed him, he was already almost
     making contact with the bike. It was a very
     short distance.

Q.   I thought I understood earlier, you felt like
     you were far enough out in the roadway that
     you were not concerned about a swinging
     door of a parked car?

A.   Yes, sir.

Q.   So what distance is that? What distance made
     you feel safe far enough away from those
     parked cars?

A.   You know, three, four feet - something like
     that.

Q.   So in any event, the dog, Magnum, would
     have had to have come out three or four feet

                       35
     in order to get up to your path, fair?

A.   I guess so.

Q.   So the dog would have had to move three or
     four feet within your point of view before any
     contact could have been made?

A.   No. Because that’s assuming that I’m seeing
     him come in front of me. He came -- as I was
     passing that car and came from the side this
     way.

Q.   I thought we agreed it was between your
     front wheel and the dog, if at all, the contact?
     I mean, it’s not as if he’s coming into you.
     He’s coming into your front wheel?

A.   He came into my front wheel from the side,
     sir.

Q.   As you’re going pretty fast and revving up,
     the dog has an opportunity to travel four feet
     into the side of your wheel, three feet out
     from a parked car as you traveled up this
     roadway?

A.   You know, you can come up with numbers.
     All I can tell you is that he came into my bike
     from the side, and I had no chance to react or
     avoid him.

Q.   And you agree you did not react; you did not
     shift to the left or the right; brake; do anything
     to avoid the accident?

A.   I had no chance.

                         36
            Q.    And you did not do so, true?

            A.    True.

[IV RR 178-85.]

       Later in the trial, the jury heard Murray’s testimony as to where

Cronfel was immediately after the claimed collision with Magnum, the

dog:

            Q.    And when you went out there, you heard the
                  commotion behind you, you turned, you go to
                  see what has occurred. Where did you find
                  [Cronfel]?

            A.    In the middle of the street.

            Q.    Was he up against that white car?

            A.    No, no. He was three, four feet, at least, to the
                  left of it. He wasn’t even with the car. He
                  was a little forward of the car.

            Q.    He was forward of the car and out in the
                  middle of the street?

            A.    Correct.

            Q.    And that’s where -- based on what you saw
                  immediately thereafter, that’s where he came
                  to rest?

            A.    That’s correct.

            Q.    In the middle of the street?

                                      37
           A.     Correct.

[IV RR 223-24.]

     Thus, the jury heard testimony from Cronfel that he had a duty to

keep a lookout, was riding very fast in the middle of the road, never saw

Magnum, and did nothing to avoid colliding with the dog.




                                   38
                    SUMMARY OF THE ARGUMENT

      The jury concluded Murry was 55% responsible for Cronfel’s injuries

as a result of his bike-dog collision and Cronfel bore 45% of the

responsibility. The jury also concluded $18,345.00 would fairly compensate

Cronfel for the injuries proximately caused by this collision.         Given

Cronfel’s high-speed cycling on a residential street at the time of the

collision and Cronfel’s history of injuries before and after the incident, the

jury’s verdict was clearly supported by the evidence. Of course, the jury

was the sole judge of the credibility of the witnesses – e.g., Cronfel and Dr.

Lown – and the weight, if any, to be given to their testimony. Indeed,

Cronfel’s appeal as to the sufficiency of the evidence supporting the jury’s

verdict boarders on the frivolous.

      As for the trial court’s $5,000.00 sanction for Cronfel’s willful and

conscious disregard of its discovery order, the record fully supports such a

sanction, that it was imposed to secure compliance with discovery rules

and to enforce the orders entered by the trial court, and therefore, does not

represent an abuse of discretion.




                                      39
                       ARGUMENTS AND AUTHORITIES

A.    The Standard of Review

      1.        Legal Sufficiency

      It is well established that a reviewing court will sustain a legal

sufficiency point if the record reveals: (a) the complete absence of a vital

fact; (b) the law precludes giving any 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; or (d) the evidence establishes conclusively the

opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.

2005) (citing Robert W. Calvert, “NO EVIDENCE” & “INSUFFICIENT EVIDENCE”

POINTS     OF   ERROR, 38 Tex. L. Rev. 361, 362-63 (1960)). Ultimately, a legal

sufficiency assessment determines whether the evidence at trial would

enable reasonable people to reach the verdict under review. Id. at 827.

      When the evidence offered to prove a vital fact is so weak as to do no

more than create a mere surmise or suspicion of its existence, the evidence

is less than a scintilla and, in legal effect, is no evidence. Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (citing Kindred v. Con/Chem, Inc.,

650 S.W.2d 61, 63 (Tex. 1983)). But more than a scintilla of evidence exists if

the evidence rises to a level that would enable reasonable and fair-minded


                                         40
people to differ in their conclusions. Ridgway, 135 S.W.3d at 601 (citing

Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). As this

Court is well aware, the reviewing court reviews the evidence in the light

most favorable to the verdict, crediting favorable evidence, and

disregarding contrary evidence. Wilson, 168 S.W.3d at 807.

      Moreover, as this Court acknowledged in McDonald v. Dankworth, 212

S.W.3d 336, 339 (Tex. App.–Austin 2006, no pet.), jurors are the sole judges

of the credibility of the witnesses and the weight to give their testimony.

When there is conflicting evidence, it is the province of the jury to resolve

such conflicts. Wilson, 168 S.W.3d at 820. If conflicting inferences can be

drawn from the evidence, Texas courts assume jurors made all inferences

in favor of their verdict if reasonable minds could, and disregard all other

inferences. Id. at 821. But if the evidence allows only one inference, the

court may not disregard it. Id. As long as the evidence falls within a zone

of reasonable disagreement, the reviewing court cannot substitute its

judgment for that of the trier-of-fact. Id. at 822.

      Because Cronfel is attacking the legal sufficiency of an adverse

finding on the issue of his negligence, he must demonstrate that there is no

evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d

                                        41
55, 58 (Tex. 1983); Ins. Network of Tex. v. Kloesel, 266 S.W.3d 456, 469-70 (Tex.

App.--Corpus Christi 2008, pet. denied). In determining this no-evidence

issue, the Court views all of the evidence in the light most favorable to the

jury’s finding of contributory negligence, consider only the evidence and

inferences which tend to support the jury’s finding of contributory

negligence, and disregard all evidence and inferences to the contrary.

Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001); Merrell Dow Pharms., Inc. v.

Havner, 953 S.W.2d 706, 711 (Tex. 1997); Burroughs Wellcome Co. v. Crye, 907

S.W.2d 497, 499 (Tex. 1995); Hooper v. Smallwood, 270 S.W.3d 234 (Tex.

App.--Texarkana 2008, pet. denied).

      2.    Factual Sufficiency – Against the Great Weight and Preponderance of
            the Evidence

      When a party attacks the factual sufficiency of an adverse finding on

an issue on which he has the burden of proof, he must demonstrate on

appeal that the adverse finding is against the great weight and

preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237,

242 (Tex. 2001); Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). The

reviewing court must consider and weigh all of the evidence, and can set

aside a verdict only if the evidence is so weak or if the finding is so against



                                       42
the great weight and preponderance of the evidence that it is clearly wrong

and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). In

doing so, the court of appeals must “detail the evidence relevant to the

issue” and “state in what regard the contrary evidence greatly outweighs

the evidence in support of the verdict.” Id. at 635.

      When reviewing a challenge to the factual sufficiency of the evidence,

the court of appeals considers all of the evidence introduced at trial. Plas-

Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). The appellate

court, in reviewing a factually insufficient evidence challenge, must

examine the entire record to determine if there is some probative evidence

to support the jury’s verdict and, if there is, determine whether the

evidence supporting the finding is so weak or the jury’s answer so contrary

to the overwhelming weight of the evidence as to be clearly wrong and

manifestly unjust. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).

      “Factual sufficiency [issues] concedes conflicting evidence on an

issue, yet maintain that the evidence against the jury’s finding is so great as

to make the finding [clearly] erroneous.” Raw Hide Oil & Gas, Inc. v. Maxus

Expl. Co., 766 S.W.2d 264, 275 (Tex. App. 1988, writ denied). For Cronfel to

succeed on his factual sufficiency challenge, the Court must determine

                                      43
from a review of the entire record whether the jury’s findings are

manifestly unjust and against the great weight and preponderance of the

evidence. Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex. 1973).

     3.     A Court May Not Substitute Its Judgment for that of the Jury’s

     Jurors are the sole judges of the credibility of the witnesses and the

weight to give their testimony. Golden Eagle Archery, Inc. v. Jackson, 116

S.W.3d 757, 761 (Tex. 2003); City of Keller, 168 S.W.2d at 819. The jury may

choose to believe one witness and disbelieve another. Silcott v. Oglesby, 721

S.W.2d 290, 293 (Tex. 1986) (jurors alone “resolve conflicts and

inconsistencies in the testimony of any one witness as well as in the

testimony of different witnesses”); City of Keller v. Wilson, 168 S.W.3d 802,

819 (Tex. 2005). In deferring to the jury’s judgment, an appellate court

must assume the jury decided all credibility questions in favor of the

verdict and disbelieved testimony contrary to their decision. Id.

     Further, in every circumstance in which reasonable jurors could

resolve conflicting evidence either way, the reviewing court must presume

the jury did so in favor of its verdict, and disregarded all conflicting

evidence, as it is the province of the jury to resolve conflicts in the

evidence.   Dresser Indus., Inc. v. Lee, 880 S.W.2d 750, 754 (Tex. 1993).


                                      44
      Furthermore, the court of appeals cannot summarily disregard

evidence or to substitute its judgment for the jury’s. Clancy v. Zale Corp.,

705 S.W.2d 820, 826 (Tex. App.–Dallas 1986, writ ref’d n.r.e.). A reviewing

court does not act as a fact finder, and may not pass upon the credibility of

witnesses or substitute its judgment for that of the trier-of-fact, even if the

evidence would support a different result. Id. Instead, the court of appeals

is called on to apply a legal analysis to the evidence and avoid summary

conclusions.

      As part of the appellate court’s review of a factual sufficiency

challenge, appellate courts are to be mindful of the fact the jury was not

convinced to find in favor of the complaining party by a preponderance of

the evidence at trial. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988).

Moreover, the reviewing court may not reverse simply because it

concludes that “the evidence preponderates toward” an answer different

than the one rendered by the jury. Id.; and see, M.D. Anderson Hosp. &

Tumor Inst. v. Felter, 837 S.W.2d 245,247 (Tex. App.–Houston [1st Dist.]

1992, no writ).

      A jury finding may be based on inferences fairly drawn from the

evidence. Briones v. Levine’s Dep’t Store, Inc., 446 S.W.2d 7, 10 (Tex. 1969).

                                      45
In making its finding, the jury is privileged to believe all, part or none of

the witnesses’ testimony and draw reasonable inferences from facts

proved. Kentucky Cent. Life Ins. Co. v. Fannin, 575 S.W.2d 76, 80 (Tex. Civ.

App.–Amarillo 1978, no writ).       The jury, as the fact finder, had the

opportunity to view the witnesses and was the sole judge of their

credibility and the weight to give to their testimony. Eberle v. Adams, 73

S.W.3d 322, 327 (Tex. App.–Houston [1st Dist.] 2001, pet. denied).

     In the end, the seminal inquiry for the reviewing court is after

considering all the evidence, was the jury’s finding so contrary to the

overwhelming weight of the evidence as to be clearly wrong and

manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

B.   The Jury’s Negligence Finding as to Cronfel Is Supported By Legally
     and Factually Sufficient Evidence

     On similar facts, this Court upheld a remarkably similar verdict in

McDonald v. Dankworth, 212 S.W.3d 336 (Tex. App.–Austin 2006, no pet.).

There, Diana Dankworth (“Dankworth”) rear-ended David McDonald

(“McDonald”). As this Court explained:

           Shortly before 1:00 p.m. on Saturday, February 9,
           2002, the three were in a line of northbound traffic
           on U.S. Highway 183 in Cedar Park. [Michael]
           Mazza (“Mazza”), driving a minivan, was in front

                                     46
           of McDonald, who was driving a 2002 Chevrolet
           Silverado pickup. Dankworth, then sixteen, was
           behind McDonald, driving a Plymouth Sundance.
           The three vehicles were in the far-left northbound
           lane of an undivided portion of 183. The pavement
           was dry and visibility was clear.

           Initially, the line of vehicles was stopped at a red
           light at the intersection of 183 and Cypress Creek.
           There was a considerable amount of traffic, and it
           was estimated that there were as many as thirty
           other cars, or 400 feet, between Mazza’s car and the
           intersection. Mazza and Dankworth testified that
           the light turned green, and all three witnesses agree
           that traffic began to move, then stopped again, at
           which time Dankworth rear-ended McDonald.

McDonald, 212 S.W.3d at 340-41.

     Dankworth conceded her negligence contributed to the collision, but

contended McDonald was also responsible because he made an

“unexpected” or “sudden” stop in front of her.       The jury found both

Dankworth’s and McDonald’s negligence proximately caused the

occurrence, allocated 50% of the responsibility to each, and found that

McDonald was entitled to recover $4,549.57 in past medical expenses,

$1,497.54 in lost wages, and nothing for physical impairment, physical pain

and mental anguish. The trial court rendered judgment on the verdict,

awarding McDonald $3,023.55 (50% of the damages the jury had found).



                                    47
      Just as in this matter, McDonald contended on appeal that (1) there

was legally or factually insufficient evidence to support the jury’s findings

that his negligence was a proximate cause of the collision; (2) the evidence

conclusively established that McDonald incurred $31,348.87 in medical

expenses as a result of the collision, or, alternatively, that the jury’s award

of only $4,549.57 in past medical expenses is against the great weight and

preponderance of the evidence; and (3) the jury’s zero damage findings for

physical pain and mental anguish and physical impairment were against

the great weight and preponderance of the evidence.

      After reviewing the testimony of Dankworth and McDonald, the

court of appeals concluded that the evidence did not conclusively establish

that Dankworth’s negligence was the sole proximate cause of the collision.

Id. at 344.    This Court considered other evidence (separate from that

describing the manner in which the collision occurred), focusing on the

events leading up to the collision and determined it was sufficient to

present the issue of whether McDonald’s negligence caused or contributed

to the accident. In upholding the jury’s verdict, this Court noted:

              McDonald and Mazza testified that Mazza did not
              stop suddenly or unsafely, but made what
              McDonald termed a “normal stop.” The jury could

                                      48
           have credited this testimony, and doing so would
           have made more probable than not that either: (1)
           McDonald stopped more suddenly and abruptly
           than was necessary to avoid hitting Mazza, cf. Rash
           v. Whisennand, 453 S.W.2d 353, 358-59 (Tex. Civ.
           App.—Houston [14th Dist.] 1970, writ ref’d n.r.e.)
           (finding fact issue regarding negligence where there
           was evidence that lead driver slammed on brakes
           one and one-half car lengths behind the next car in
           front); or (2) McDonald’s sudden stop was made
           necessary by his negligence in following too closely
           behind Mazza. Cf. Oakley v. C.E. Duke’s Wrecker
           Service, 557 S.W.2d 810, 813 (Tex. Civ. App.—
           Houston [1st Dist.] 1977, writ ref’d n.r.e.) (evidence
           that lead driver had negligently created situation
           that required her to make sudden stop).

McDonald, 212 S.W.3d at 344-45.

     Much like in McDonald, the jury here heard testimony from which it

could have found Cronfel was negligent (i.e., comparatively at fault) in that

the evidence was undisputed that Cronfel was traveling at a high rate of

speed adjacent to and in close proximity to cars parked on the side of the

road [IV RR 179-80], that although Cronfel admitted he had a duty to keep

a proper lookout and, as a bicyclist, to have a heightened awareness of his

surroundings, he never saw Magnum [Id. at 180-84], that Magnum collided

with the side of his front wheel, and that he did not take any evasive action

to avoid the collision [Id. at 185]. Moreover, the jury heard testimony that



                                     49
Cronfel was going so fast that he did not see or have time to react despite

the fact Magnum had to travel in excess of four feet from the parked cars

before he could have possibly made contact with the side of Cronfel’s front

wheel. [Id. at 183-84.]

      The jury likewise heard testimony from Murray that Cronfel was in

the middle of the road and past the parked cars when the collision with

Magnum took place [Id. at 223-24] – yet, Cronfel (1) admitted he never saw

Magnum and (2) did not even attempt to avoid the collision [Id. at 183-85].

Much like in McDonald, the evidence presented to the jury supported the

conclusion that Cronfel failed to keep a proper lookout (a duty he admitted

to having), and that Cronfel was traveling too fast under the circumstances,

or that due to his speed and failure to keep a proper lookout, Cronfel failed

to take any evasive action or attempt to avoid the collision. All of which,

either taken together or separately, is legally sufficient evidence to support

the jury’s finding of negligence on Cronfel’s part.

      Just as Cronfel’s legal sufficiency challenge fails, his factual

sufficiency challenge also fails.   The jury was presented with evidence

which called Cronfel’s credibility into question and from which the jury

could have found him untrustworthy. [See IV RR 174-77.] Further, the jury

                                      50
heard testimony from Cronfel himself that he was going at such a

breakneck speed that, despite admitting a duty to do so, failed to see

Magnum, and because of his high rate of speed failed to take any evasive

action to avoid colliding with Magnum. [Id. at 180-185.]

      The jury was also shown a picture of the where the collision took

place from which it could have surmised Cronfel was negligent in failing to

keep a proper lookout or was traveling too fast under the circumstances,

either of which or both, were causes or contributing factors to the accident.

In this regard, the picture plainly demonstrated that Magnum would have

had to travel more than twenty feet before reaching the roadway – and

then another four feet to collide with Cronfel – during which Cronfel never

saw the dog (i.e., failed to keep a proper lookout). It is also true that the

jury might have noted Cronfel would be high enough up so that he should

have seen the dog or noticed it in his peripheral vision and taken evasive

action to avoid the collision. [VII RR 7.]

      Based on the evidence presented, the jury was justified in finding that

Cronfel’s conduct constituted negligence. Regardless, the evidence is not

so one-sided such that the jury’s finding of comparative negligence was

clearly wrong or manifestly unjust.

                                      51
C.   The Evidence Is Factually Sufficient to Support the Jury’s Damage
     Awards

     Again, McDonald is instructive as to whether the evidence was legally

sufficient to support the damage amounts awarded Cronfel by the jury. In

McDonald this Court held:

           [T]he amount of damages for physical pain and
           suffering, mental anguish, and physical impairment
           are inherently subjective and uniquely within the
           jury’s province, see Dawson v. Briggs, 107 S.W.3d
           739, 750-51 (Tex. App.--Fort Worth 2002, no pet.), no
           such amount can be conclusively established in the
           evidence as a matter of law, and therefore an
           appellate court cannot render judgment awarding
           such an amount. See Pilkington v. Kornell, 822
           S.W.2d 223, 225 fn. 1 (Tex. App.--Dallas 1991, writ
           denied). We accordingly will construe McDonald’s
           issues concerning the jury’s zero damages awards
           for pain and suffering, mental anguish, and
           physical impairment as solely factual sufficiency
           challenges; i.e., that the zero damages awards are
           against the great weight and preponderance of the
           evidence.

McDonald, 212 S.W.3d at 346 fn. 12.

     Much like in McDonald, Murray vigorously disputed whether all of

Cronfel’s medical treatment and expenses, purported physical pain and

suffering, mental anguish, and alleged impairment were caused by the

accident at issue. With respect to the evidence submitted supporting the



                                      52
jury’s award of $9,345.00 in past medical expenses and $3,000.00 in future

medical expenses, Murray presented evidence that:

           ˜     Dr. Lown did not see or begin to treat Cronfel
                 until approximately two years after the
                 accident involving Magnum [IV RR 90];

           ˜     Lown admitted Cronfel injured the same
                 wrist in 2005 in a bicycle accident [Id. at 91];

           ˜     The same injury complained of after the 2009
                 accident actually occurred because of the 2005
                 accident [Id. at 92];

           ˜     A MRI taken three-and-a-half years prior to
                 the 2009 accident showed that Cronfel had a
                 tear in the same ligament in the same wrist
                 because of the 2005 accident [Id. at 93];

           ˜     Cronfel never had surgery to repair the
                 ligament tear dating back to 2005 [Id. at 95];

           ˜     Within one-month after the 2009 accident,
                 Cronfel had full range of motion and his wrist
                 was declared medically “normal” by Dr.
                 Windler and that Cronfel did not seek any
                 further treatment until ten months later,
                 during which time Cronfel had resumed his
                 regimen of lifting weights and other physical
                 activities [Id. at 107];

           ˜     Within three months after the 2009 accident,
                 Cronfel had full range of motion, no
                 tenderness in the wrist, and had resumed his
                 regimen of heavy weight lifting, including
                 bench press, pull-ups, and push-ups [Id. at 95-

                                     53
    96];

˜   In the months after the accident, Cronfel was
    engaging in strenuous workouts to such a
    degree that his physical therapist advised him
    his routine was causing him joint pain in his
    hand and wrist [Id. at 97];

˜   Cronfel complained in 2012 that he injured his
    right wrist during a weight lifting session, and
    he was in another bicycle accident, going over
    the handlebars, in the same year [Id. at 98-99];

˜   Cronfel was engaging in physical activities in
    the latter part of 2012, such as water skiing,
    deer hunting, and his continued weight lifting
    routine – as to which his therapist again
    warned him he was overdoing it and was
    risking serious injury [Id. at 99-100];

˜   Cronfel was in another bicycle accident in
    August of 2012 in which he injured his right
    wrist to such a degree that he went to the
    emergency room for treatment and then to Dr.
    Lown [Id. at 102-04];

˜   Cronfel had a history of sporadic and
    intermittent medical treatment [Id. at 107-09];
    and

˜   Cronfel did not seek any further medical
    treatment for ten months after Dr. Windler
    examined him, at which time (in July of 2010)
    an x-ray showed his wrist was unchanged;

˜   Another nine months elapsed before Cronfel
    received an injection in March 2011;


                       54
           ˜    Another five months passed before Cronfel
                saw Dr. Lown in August 2011; and

           ˜    Between July 23, 2009 and August 2011 – a
                total of 749 days – Cronfel sought treatment
                for his wrist four to five times, all while
                maintaining an active lifestyle, a strenuous
                exercise regimen, and did not miss any time
                from work.

     The evidence here parallels that in McDonald, on which this Court

held the evidence was factually sufficient to support the jury’s damage

awards. That is, in McDonald, this Court noted that Dankworth presented

evidence that McDonald’s complained of injuries and pain which could

have been caused by something which occurred prior to the rear-end

collision, that McDonald had received medical treatment prior to the

accident, but had not undertaken any surgical procedure to remedy his

issue, and that Dankworth:

           also elicited evidence that McDonald had
           disregarded doctor’s orders regarding his workload
           after the collision, that he had delayed seeking
           medical treatment, and that he wore a heavy
           motorcycle helmet on his job. Finally, Dankworth
           emphasized that McDonald had not complained of
           pain at the accident scene, that his x-rays were
           normal, and that his claimed injuries had caused
           relatively little interruption to his work schedule.



                                    55
            A rational jury could infer from the evidence that
            the expenses associated with Dr. Fyfe and his
            suspicion of a carotid artery dissection did not
            result from the collision, but from the discovery of
            the retention cyst, a condition unrelated to the
            collision. A rational jury could further infer that
            McDonald’s own actions caused or contributed to
            his symptoms.

McDonald, 212 S.W.3d 348-49.

      Here, Murray presented evidence the complained of injury to

Cronfel’s right wrist existed prior to the 2009 accident, that Cronfel had not

had surgery to correct the ligament tear, that Dr. Windler declared his wrist

normal one-month after the accident, that Cronfel’s x-rays three-months

after the accident showed his wrist was normal, that Cronfel had not

missed any work and was not seeking lost wages, that the purported wrist

injury had not interrupted his workout routine or active lifestyle, and that

his complaints of pain may have been caused by something other than the

2009 accident.

      As in McDonald, the evidence in the matter sub judice fails to

conclusively establish the amount of medical expenses Cronfel sought to

recover was incurred solely because of the 2009 accident.          Hence, the

evidence is factually sufficient to support the amount of medical expenses



                                      56
actually awarded by the jury.

     Cronfel also complains on appeal the evidence is not factually

sufficient to support the jury’s award of damages as to his claims of

physical pain and suffering, mental anguish, physical impairment, and

disfigurement.   However, just as in McDonald, the jury could have

reasonably attributed his pain and suffering, mental anguish, impairment,

and disfigurement, if any, to something other than the accident. Again, the

jury was keenly aware of Cronfel’s other bicycling accidents and workout

routine, as possible explanations for any subjective complaints he had.

     In McGuffin v. Terrell, 732 S.W.2d 425 (Tex. Civ. App.–Fort Worth

1987, no writ), the Fort Worth Court of Appeals found that injuries to the

shoulder and neck of the plaintiff who claimed they resulted from an auto

accident were subjective injuries and affirmed a zero damages award.

Much like this matter, the McGuffin jury heard McGuffin’s testimony as to

the extent and severity of her purported injuries, and from the treating

physician as to the cause of them. Id. at 426. McGuffin also provided

medical reports from her treating physician and expense statements of

various physicians who examined her, as well as the records from a

physical therapist to whom she was referred for treatment. Id.

                                     57
       McGuffin did not complain of any injuries at the scene.                             Id.

McGuffin’s testimony was that she first started to experience pain in her

neck and shoulder several hours after the accident. Id. The next day,

McGuffin saw her family doctor.                Id.     After several follow up visits,

McGuffin was referred to a physical therapist for treatment of her

subjective injuries (i.e., a sore neck and muscle pain). Id.

       When her pain did not subside, McGuffin was referred to an

orthopedic surgeon who found no objective symptoms which would cause

the pain of which she complained. Id. Thereafter, a neurosurgeon ran an

Electromyography test on McGuffin.3                  Id.   McGuffin also underwent a

computerized tomography test, commonly referred to as a CAT scan,

which much like the EMG test, is a diagnostic test which (using x-rays)

produces a cross-sectional image, which can be interpreted by a specialist.

Id. None of these examinations revealed any objective symptoms of injury.

Id.   The jury found Terrell negligent in causing the accident, but only

awarded McGuffin $50.00 in medical expenses and zero damages for all

other damage claims. Id. at 426-27.

3
  Electromyography (“EMG”) is a diagnostic procedure to assess the health of muscles and the
nerve cells that control them (motor neurons). Motor neurons transmit electrical signals which
cause the muscles to contract. An EMG translates these signals into graphs, sounds or numerical
values which a specialist interprets. See MAYO CLINIC WEBSITE.


                                              58
     Just like Cronfel, McGuffin argued on appeal the zero-damage

awards as to pain and suffering, mental anguish, and impairment were

against the great weight and preponderance of the evidence. Id. at 427.

The Fort Worth Court of Appeals disagreed, noting McGuffin’s complaints

were subjective, which the jury was free to disbelieve:

           [T]he opinions [relied on by McGuffin] recite that
           examination of the parties complaining of injury
           revealed objective symptoms such as fracture,
           laceration, bruise, hematoma or muscle spasm. In
           the present case, there were no findings of objective
           symptoms until approximately three weeks after
           the accident, when after several office visits, Dr.
           Murphy noted muscle spasm. All of the reports of
           other examining physicians indicated no objective
           symptoms were present. . . .

           The jury must have also believed that her injury did
           not require all of the examinations and treatment
           received by [McGuffin]. The jury was free to
           disbelieve, and apparently did disbelieve, Dr.
           Murphy’s opinion that the treatment and
           medication received by [McGuffin] was necessary
           for the injury sustained. Un-contradicted testimony
           of expert witnesses must be taken as true insofar as
           it establishes facts, however, opinions as to
           deductions from those facts are not binding on the
           jury. Opinion testimony does not establish material
           facts as a matter of law. 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 [McGuffin’s] testimony

                                     59
            as to the severity of her injuries nor her alleged pain
            and disability.      The jury may disbelieve an
            interested witness even if un-contradicted.
            Substantially all of the evidence concerning
            [McGuffin’s] pain and suffering and the extent of
            her alleged injuries came from [McGuffin] or from
            Dr. Murphy to whom she had related her alleged
            pain and suffering. The jury had the duty to
            consider this testimony, the reports of medical
            findings and diagnosis by others who examined
            [McGuffin]. The jury likewise could accept or reject
            any part or all of the evidence and reconcile any
            inconsistencies therein.       Apparently, the jury
            determined that the findings of some of the
            examining physicians were inconsistent with
            [McGuffin’s] complaints and the deduction opinion
            made by Dr. Murphy. The jury resolved these
            inconsistencies against [McGuffin]. The jury had a
            duty to fix an amount it believed was reasonable
            and necessary for the treatment of any injury
            received by [McGuffin] which it may have found
            resulted from the collision. Apparently the jury
            determined the extent of any injury [McGuffin] may
            have received from the collision was quite minimal
            and that only the sum of $ 50.00 was a reasonable
            and necessary amount for the examination and
            treatment of [McGuffin] for such injury. If the
            opinion of Dr. Murphy did not comport with the
            jury’s idea of sound logic, it had the right to so find.

Id. at 428 (internal citations omitted).

      Much like in McGuffin, the only evidence concerning Cronfel’s pain

and suffering came from Cronfel (or Lown to whom Cronfel related his

alleged injuries and pain and suffering). Thus, just as in McGuffin, the jury

                                           60
was “free to disbelieve, and apparently did disbelieve,” Cronfel’s

complaints or whether his complaints were caused by the accident versus

something else to which the jury heard evidence.

     Another instructive case is Luna v. Torres, 2009 Tex. App. LEXIS 6972

(Tex. App.–Corpus Christi August 31, 2009, no pet.), wherein the court of

appeals found the jury’s zero-damage award was not against the great

weight and preponderance of the evidence.

           The police report written at the collision site
           indicated no injuries to either Cesar or Luna. No
           ambulance was requested, and neither appellant
           went to a hospital at any time. The alleged
           whiplash type injuries were at most soft tissue
           injuries resulting in negative x-rays. No work
           restrictions were given, and no prescription pain
           medications were either prescribed or taken.
           Neither appellant missed time from work. No
           doctor testified to any injury or objective medical
           findings. . . . .

           The mere fact of injury does not prove compensable
           pain and suffering or impairment. A jury may
           award “zero damages” when the injuries sustained
           are subjective in nature or there is both subjective
           and objective evidence of damages. The evidence
           concerning whether appellants suffered pain as a
           result of the accident is almost entirely subjective,
           primarily based on appellants’ own personal
           reports of pain to doctors, and their own testimony.




                                    61
              The un-contradicted testimony of an interested
              witness cannot be considered as doing more than
              raising an issue of fact unless that testimony is
              clear, direct, and positive, and there are no
              circumstances in evidence tending to discredit or
              impeach such testimony.

Id. at *12-13 (emphasis added; internal citations omitted).

         Texas jurisprudence has long held that when the evidence is

controverted or the injury is predominantly subjective, Texas courts must

uphold jury findings of no damages despite a finding of liability and

evidence of injury and damages. E.g., Crow v. Burnett, 951 S.W.2d 894, 899

(Tex. App.–Waco 1997, writ denied); Barrajas v. VIA Metro. Transit Auth.,

945 S.W.2d 207, 209-10 (Tex. App.–San Antonio 1997, no writ); Hyler v.

Boytor, 823 S.W.2d 425, 427 (Tex. App.–Houston [1st Dist.] 1992, no writ);

McGuffin v. Terrell, 732 S.W.2d 425, 428-29 (Tex. App.–Fort Worth 1987, no

writ).

         Moreover, where the evidence of pain is conflicting, scant, or more

subjective than objective, a jury’s zero-damages finding is not against the

great weight and preponderance of the evidence. Gonzalez v. Wal-Mart

Stores, Inc., 143 S.W.3d 118, 123 (Tex. App.–San Antonio 2004, no pet.); see

also Barrios v. King Fisher Marine Serv., L.P., 2010 Tex. App. LEXIS 3955 *10



                                      62
(Tex. App.–Corpus Christi May 27, 2010, pet. denied).

      Clearly, the jury either did not believe all of Cronfel’s complaints of

pain and suffering (and other “injuries”), or was not convinced they were

caused by the 2009 accident. There was significant evidence Cronfel had

injured the same wrist on at least one occasion prior to the 2009 incident.

The jury also heard evidence Cronfel may have injured his wrist during his

workout routine and weightlifting regimen. All of these possible sources

are wholly unrelated to the collision with Murray’s dog, Magnum.

Additionally, Cronfel continued to engage in activities which were or could

have been the cause of his physical complaints (e.g., water skiing, bicycling,

and weightlifting). In sum, the jury’s verdict was unquestionably within

the law and based on the evidence presented.

D.   The Trial Court’s Discovery Sanction Was Not an Abuse of Discretion

      Cronfel appears to argue on appeal that he should not have been

sanctioned ($5,000.00) for three reasons: (1) he complied with what he

thought the order from the trial court should have been – and not what the

trial court actually ordered; (2) it was based on his refusal to disclose

privileged mental health records – which were not even requested by

Murray; and (3) $5,000.00 was excessive and not explained to Cronfel’s

                                      63
satisfaction.

      All of Cronfel’s contentions are misguided and fail when viewed in

the light of the entire history of the litigation. Specifically, the Court must

take into consideration the multiple motions to compel, multiple hearings,

Cronfel’s refusal to comply with two separate orders, Cronfel’s unilateral

change to the medical authorization he was ordered to sign, and his

mischaracterization of the medical records being sought.

      The inherent powers of a trial court are those which it may call upon

to aid in the exercise of its jurisdiction, in the administration of justice, in

the preservation of its independence and integrity, and to prevent any

significant interference with the traditional core functions of Texas courts.

Public Util. Comm’n v. Cofer, 754 S.W.2d 121, 124 (Tex. 1988); Kutch v. Del

Mar College, 831 S.W.2d 506, 510 (Tex. App.–Corpus Christi 1992, no writ).

      “By rule, statute, and their own inherent power, trial courts have

broad authority to sanction litigants for specific misconduct.” In re Does 1-

10, 242 S.W.3d 805, 817 (Tex. App.–Texarkana 2007, no pet.); In re N.R.C., 94

S.W.3d 799, 807 fn. 4 (Tex. App.–Houston [14th Dist.] 2002, pet. denied); see

also Onstad v. Wright, 54 S.W.3d 799, 804 (Tex. App.–Texarkana 2001, pet.

denied).    A trial court has inherent power to sanction to the extent

                                      64
necessary to deter, alleviate, and counteract bad faith abuse of the judicial

process. In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997); Dallas County Constable

v. Kingvision Pay-Per-View, 219 S.W.3d 602, 610 (Tex. App.–Dallas 2007, no

pet.). To support the entry of sanctions under a court’s inherent powers,

the trial judge must find that the party caused significant interference with

the legitimate exercise of the traditional core functions of the court.

Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex. 1979); IFC Credit Corp.

v. Specialty Optical Sys., 252 S.W.3d 761, 772 (Tex. App.–Dallas 2008, pet.

denied).

      The core functions of the judiciary are to hear evidence, decide issues

of fact raised by pleadings, decide questions of law, enter final judgments,

and enforce those judgments. Armadillo Bail Bonds v. State, 802 S.W.2d 237,

239-40 (Tex. Crim. App. 1990); Finlan v. Peavy, 205 S.W.3d 647, 652-53 (Tex.

App.–Waco 2006, no pet.). Additionally, a trial court’s core functions

include “the management of its docket and the issuance and enforcement of

its orders.” See In re K.A.R., 171 S.W.3d 705, 715 (Tex. App.–d Houston

[14th Dist.] 2005, no pet.) (emphasis added).

      The review of a trial court’s sanction based on its inherent power is

conducted under an abuse of discretion standard. Kutch, 831 S.W.2d at 512.

                                      65
Moreover, the reviewing court must review the entire record and view the

evidence most favorably to the trial court’s ruling. Id.; Vaughn v. Tex.

Employment Comm’n, 792 S.W.2d 139, 143 (Tex. App.–Houston [1st Dist.]

1990, no writ); see also Lawrence v. Kohl, 853 S.W.2d 697, 700-701 (Tex. App.–

Houston [1st Dist.] 1993, no pet.).

      Furthermore, a court may impose sanctions for a party’s failure to

fully comply with a discovery request. See generally TEX. R. CIV. P. 215. If

the court finds a party is abusing the discovery process in seeking, making

or resisting discovery, the court may impose an “appropriate” sanction.

TEX. R. CIV. P. 215.3. The Texas Supreme Court has stated that this rule

gives “trial courts broad authority to curb [discovery] abuse.” Braden v.

Downey, 811 S.W.2d 922, 930 (Tex. 1991). There are three purposes for

discovery sanctions: (1) to secure compliance with discovery rules; (2) to

deter other litigants from similar misconduct; and (3) to punish violators.

Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992).

      Of course, a sanction cannot be excessive and should not be assessed

without appropriate guidelines. See Low v. Henry, 221 S.W.3d 609, 620 (Tex.

2007) (discussing limitations on sanctions under Texas Rule of Civil

Procedure 215 and chapter 10 of the Texas Civil Practice and Remedies

                                      66
Code); Greiner v. Jameson, 865 S.W.2d 493, 499 (Tex. App.–Dallas 1993, writ

denied) (noting that the rule 215 requirement that sanctions be just also

applies to the court’s inherent power to sanction); see also State v. PR Invs.,

180 S.W.3d 654, 673 (Tex. App.–Houston [14th Dist.] 2005), aff’d, 251

S.W.3d 472 (Tex. 2008).

      In order for a sanction to be just, there must be a direct relationship

between the offensive conduct and the sanction imposed; and the sanction

imposed must not be excessive. TransAmerican v. Powell, 811 S.W.2d 913,

916 (Tex. 1991). In other words, the punishment should fit the crime; the

sanction must be directed against the abuse and toward remedying the

prejudice caused to the innocent party. Thompson v. Davis, 901 S.W.2d 939,

940 (Tex. 1995).

      On review, the appellate court must recognize that, in assessing

sanctions, the trial court is entitled to consider the entire course of the

litigation. Scott Bader, Inc. v. Sandstone Prods., 248 S.W.3d 802, 814 (Tex.

App.–Houston [1st Dist.] 2008, no pet.); Broesche v. Jacobson, 218 S.W.3d 267,

(Tex. App.–Houston [14th Dist.] 2007, pet. denied); see Berry-Parks Rental

Equip. Co. v. Sinsheimer, 842 S.W.2d 754, 757 (Tex. App.–Houston [1st Dist.]

1992, no writ).

                                      67
      Here, the record is replete with evidence of Murray’s efforts to obtain

the medical records (and specifically of those of Lown) needed to defend

himself against Cronfel’s allegations and the damages Cronfel sought to

have assessed against him.     Beginning with simple interrogatories and

requests for production, this discovery tale unnecessarily mushroomed

into depositions on written questions, numerous motions to compel,

broken agreements to produce the records, multiple hearings, and two

court orders – both of which Cronfel failed to follow. To suggest the trial

court abused its discretion in imposing a $5,000.00 sanction – at the end of

this trail of waste of resources (on the part of Murray and the trial court) –

is wholly without merit.

                      CONCLUSION AND PRAYER

      For the foregoing reasons, Murray asks the Court to affirm the trial

court’s final judgment, as well as its discovery sanction against Cronfel, in

all respects and for such further and other relief to which he is justly

entitled.




                                      68
Respectfully submitted,

WALTERS, BALIDO & CRAIN, L.L.P.

___/s/ Gregory R. Ave_________
GREGORY R. AVE
State Bar No. 01448900
JAY R. HARRIS
State Bar No. 00793907
Meadow Park Tower, Suite 1500
10440 North Central Expressway
Dallas, Texas 75231
Telephone Number (214) 347-8310
Facsimile Number (214) 347-8311
greg.ave@wbclawfirm.com
jay.harris@wbclawfirm.com

ATTORNEYS FOR APPELLEE
PATRICK C. MURRAY




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                    CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the
undersigned certifies that this brief complies with the type-volume
limitations of Texas Rule of Appellate Procedure 9.4(i)(2)(B).

      Exclusive of the exempt portions identified by Texas Rule of
Appellate Procedure 9.4(i)(1), this brief contains 13,054 words, including
footnotes, headings, and quotations, and this certificate and the certificate
of service which follows. In providing this word-count, the undersigned is
relying the word count generated by the computer program used to
prepare the motion.

      This brief has been prepared in proportionally spaced type, 14-point
text, and in Book Antiqua font, using the computer program known as
Microsoft Word 2010.

     Acknowledged: November 13, 2015.


                                          __/s/ Gregory R. Ave__
                                                Gregory R. Ave




                                     70
                         CERTIFICATE OF SERVICE

      On November 13, 2015, a true and correct copy of the foregoing was
sent to all parties and counsel of record in accordance with the Texas Rules
of Civil Procedure:

Paul T. Morin, Esquire                               Via E-Serve
Paul T. Morin, P.C.
503 West 14th Street
Austin, Texas 78701

Guillermo Ochoa-Cronfel, Esquire                     Via E-Serve
The Cronfel Law Firm
2700 Bee Caves Road, Suite 103
Austin, Texas 78746

ATTORNEYS FOR APPELLANT
GUILLERMO OCHOA-CRONFEL

                                          __/s/ Gregory R. Ave___
                                                Gregory R. Ave




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