                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-18-00121-CV


MINDY M. RICE                                                      APPELLANT

                                       V.

NATALIE FIX AND ALLSTATE FIRE                                      APPELLEES
AND CASUALTY INSURANCE
COMPANY

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          FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
                     TRIAL COURT NO. 14-06112-367

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                        MEMORANDUM OPINION1

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      Appellant Mindy M. Rice appeals from the trial court’s take-nothing

judgment in Rice’s personal-injury suit against appellee Natalie Fix. She argues

that the trial court abused its discretion by excluding a portion of her medical

evidence and that the evidence was factually insufficient to support the jury’s


      1
      See Tex. R. App. P. 47.4.
findings that Fix was not negligent and that Rice sustained no compensable

damages. Because the evidence supported the jury’s finding of zero damages,

rendering any other presumed error harmless, we affirm the trial court’s

judgment.

      On December 15, 2012, at 12:49 p.m., Fix was driving her mother’s SUV

on an interstate in heavy, stop-and-go traffic behind a car driven by Rice. After

they passed an accident that was on the shoulder of the interstate, traffic began

to speed up. Fix believed she kept a safe distance from Rice’s car, but Fix

admitted that “obviously” she did not because when Rice slowed down again for

traffic, Fix was unable to stop and ran into the rear of Rice’s car. Fix estimated

she was going five miles per hour when she hit Rice. Nevertheless, the force of

the collision caused Rice’s car to hit the rear of the truck in front of her, which

was driven by Rice’s boyfriend Andrew Carroll. Carroll saw the wreck in his

rearview mirror and observed Rice’s head snap back when Fix hit her and then

forward when Rice hit his truck. But Rice did not hit her head during the wreck

and her air bag did not deploy.

      The police officer who was present at the earlier wreck on the shoulder,

responded to the scene. He concluded that Fix failed to control her speed, which

was a contributing factor to the accident. There was no indication that any of the

drivers were distracted. All three vehicles were drivable; in fact, the responding

officer rated the damage to each car as zero or one on a five-point scale.



                                        2
      Carroll and Rice dropped her car off at a collision-repair shop and

continued their trip to Houston in Carroll’s truck. During the trip, Rice’s head,

neck, and back began to hurt and she experienced nausea. Carroll took Rice to

an emergency room when they arrived in Houston, where she was diagnosed

with a cervical and thoracic “sprain/strain.” Thereafter, Rice experienced balance

issues, severe headaches, and blurred vision. And Rice stated that the chronic

back pain she had before the wreck, which was caused by a congenital back

condition, worsened after the wreck. Eventually, a lumbar peritoneal shunt was

surgically implanted into Rice’s lower back to drain excess spinal fluid into her

abdomen. As a result, Rice was unable to attend the physical-therapy program

she had been accepted into and was advised not to have children.

      On August 8, 2014, Rice filed suit against Fix and Rice’s underinsured

carrier, appellee Allstate Fire and Casualty Insurance Company. 2 Rice alleged

that Fix’s actions were negligent, proximately causing her severe bodily injuries.

At trial, Fix testified that she accepted responsibility for the wreck and that “as far

as [she] could tell,” she was at fault.

      Rice testified to her pain and suffering that she alleged were caused by the

wreck, including headaches, complications from the shunt procedure, and back

pain. She further testified that her lifestyle was altered by the wreck, causing her

to forgo physical-therapy school, recreational activities, and plans to start a

      2
      Allstate did not participate in the trial but agreed to be bound by any
judgment.

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family. But she also admitted that before the wreck, she had chronic back pain

from a congenital deformity and frequent headaches that she sought medical

treatment for.   Further, she testified that she was employed as a “safety

professional” and had recently been hired at a better job with better pay than

before.

      Rice presented medical evidence from her neurologist, Dr. Lee S. Pollack,

whom she began seeing about two months after the accident at Carroll’s

suggestion. Pollack explained that Rice had a “dysfunction in the flow of spinal

fluid within the brain,” necessitating the placement of the lumbar peritoneal shunt.

He posited that the dysfunction could have been caused by “some inapparent

migrainous white matter disease” combined with “a shear injury from a closed

head injury.” He testified that Rice had a rare complication with the shunt that

causes her post-operative pain but that the complication was “like a genetic

thing.” The shunt limits Rice’s level of physical activity and causes her a “pretty

high level of pain.” Pollack also stated that Rice had congenital fusions to her

cervical and lumbar vertebrae, a congenital malformation of her spinal nodes,

and a herniated disc below the fused cervical vertebrae. Pollack opined that the

herniated disc was aggravated, but not caused, by the wreck.             Rice also

attempted to introduce Pollock’s testimony that Rice had a symptom—

“decreased arm swing”—that “suggest[s]” she could develop Parkinson’s disease

“at a later date”; but the trial court excluded the testimony because any probative

value was outweighed by its unfair prejudice. See Tex. R. Evid. 403.

                                         4
      Fix presented controverting medical testimony from              a consulting

neurologist, Dr. Jorge Romero. Romero opined that Rice’s spinal-fluid problem

was similar to her spinal fusions because it was a “developmental and congenital

abnormality”—she was born with it. He testified that Rice’s medical records gave

no indication that her medical issues for which she sought recovery were caused

by the car wreck.      In Romero’s medical opinion, the shunt procedure was

unnecessary and her symptoms were not a result of the wreck.                Romero

recognized that the wreck caused Rice to have a cervical strain or sprain but that

such injury “usually subsides relatively quickly.”

      The trial court’s charge3 asked the jury in two questions whether any

negligence by Fix proximately caused “the occurrence in question” and what sum

of money would fairly and reasonably compensate Rice for her injuries “that

resulted from the occurrence in question.” In assessing damages, the jury was to

provide amounts for past physical pain and mental anguish, future physical pain

and mental anguish, past physical impairment, future physical impairment, and

      3
        The clerk’s record does not contain the trial court’s jury charge that was
signed by the trial court, signed by the jury foreman, and file-stamped by the trial
court clerk. See Tex. R. App. P. 34.5(a)(4). We contacted the trial-court clerk,
who represented to this court that there was no signed and filed jury charge. See
Tex. R. App. P. 34.5(d). Indeed, Rice attached an “[a]greed copy” of the charge
and verdict to her appellate brief, recognizing that the original was lost. See Tex.
R. App. P. 34.5(e). In addition to this agreed copy, the court reporter
stenographically recorded the charge conference, the contents of the charge as
the trial court read it to the jury, the jury’s resulting verdict, and the jury poll.
Based on this record evidence and mindful of the fact that no party raises jury-
charge error, we are able to determine the content of the jury charge and the
jury’s verdict for purposes of this appeal. See Tex. R. Evid. 1004.

                                          5
future medical-care expenses. The damages question was not conditioned on

an affirmative response to the liability question, but no party objected to the

failure. See generally Tex. R. Civ. P. 277 (“The court may predicate the damage

question or questions upon affirmative findings of liability.”).      The jury

unanimously found that Fix’s negligence did not proximately cause the

occurrence and found “zero” for each damage category. The trial court rendered

a take-nothing judgment on Rice’s negligence claim.

      Rice filed a motion for new trial, arguing that the jury’s answers were

against the “overwhelming weight of the evidence.”       See Tex. R. Civ. P.

324(b)(3). The trial court denied the motion. Now on appeal, Rice argues that

the jury’s findings were against the great weight and preponderance of the

evidence, which is a challenge to the factual sufficiency of the evidence. She

also argues that the trial court abused its discretion by excluding Pollock’s

testimony that Rice’s decreased arm swing indicated she could develop

Parkinson’s in the future.

      Rice’s sufficiency arguments require a combined analysis. When a party

attacks the factual sufficiency of an adverse finding on an issue on which she

had the burden of proof, she must show that the adverse finding is against the

great weight and preponderance of the evidence.       See Dow Chem. Co. v.

Francis, 46 S.W.3d 237, 242 (Tex. 2001). When we review such an assertion,

we must consider and weigh all of the evidence and may set aside the finding

only if the adverse finding is so contrary to the overwhelming weight of all the

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evidence that it is clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d

629, 635 (Tex. 1986) (op. on reh’g).

      The evidence adduced at trial indicated that the accident occurred as a

result of Fix’s inability to stop before hitting Rice in stop-and-go traffic. Indeed,

Fix testified that she accepted responsibility for the accident. And Fix’s attorney

recognized this evidence in closing jury argument by stating that “[c]learly, we

know what happened” at the time of the accident. But even assuming without

deciding that the jury’s answer to question one—Fix’s negligence did not

proximately   cause    the   accident—was       against   the   great   weight    and

preponderance of the evidence, we conclude that the jury’s answer to question

two—that Rice suffered no personal-injury damages as a result of the wreck—

was not against the great weight and preponderance of the evidence.

      The jury was instructed to award Rice no damages for a condition that

existed before the wreck and that was not aggravated by the wreck. Additionally,

the jury was directed to award no damages for any condition that did not result

from the wreck. The jury heard evidence that Rice’s conditions were not a result

of the accident but were congenital. Indeed, Rice previously had sought medical

treatment for her headaches and back pain. Romero testified that even with

Rice’s congenital conditions, the lumbar peritoneal shunt had been unnecessary.

Although Romero recognized that Rice suffered a cervical strain or sprain as a

result of the accident, her severe pain and lifestyle restrictions were not related to

this quickly resolved condition, and Rice did not seek damages for her past

                                          7
medical expenses.       Even though Pollock testified that Rice’s back pain was

aggravated by the accident, the jury was the sole judge of the credibility of and

weight to be given to the competing, expert testimony.         See McGalliard v.

Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986); Hutchison v. Pharris, 158 S.W.3d

554, 567–68 (Tex. App.—Fort Worth 2005, no pet.); Columbia Med. Ctr. of Las

Colinas v. Bush ex rel. Bush, 122 S.W.3d 835, 861 (Tex. App.—Fort Worth 2003,

pet. denied). Weighing the competing evidence regarding Rice’s damages, we

cannot say that the jury’s finding of no damages was against the great weight

and preponderance of the evidence such that it was clearly wrong and manifestly

unjust. See Chapman v. Browder, No. 09-09-00061-CV, 2009 WL 5574371, at

*3–4 (Tex. App.—Beaumont Jan. 28, 2010, no pet.) (mem. op.); cf. Hutchison,

158 S.W.3d at 567–68 (holding jury was entitled to weigh competing, expert

testimony and determining jury’s no-causation finding supported by factually

sufficient evidence).

      Because the jury’s zero-damages award was supported by factually

sufficient evidence, its no-negligence finding is rendered harmless even if it were

against the great weight and preponderance of the evidence. See Tex. R. App.

P. 44.1(a)(1); Chapman, 2009 WL 5574371, at *4; Hutchison, 158 S.W.3d at

562–63; cf. Espinosa v. Schomberg, 601 S.W.2d 161, 164 (Tex. Civ. App.—

Waco 1980, writ ref’d n.r.e.) (finding no reversible error from jury’s zero-damages

finding even if supported by insufficient evidence because jury’s finding of no

negligence was so supported); Sendejar v. Alice Physicians & Surgeons Hosp.,

                                        8
Inc., 555 S.W.2d 879, 885–86 (Tex. Civ. App.—Tyler 1977, writ ref’d n.r.e.)

(holding jury’s finding of no negligence by defendant renders any error in

submission of plaintiff’s contributory negligence immaterial). And any abuse of

discretion based on the trial court’s exclusion of Pollock’s opinion regarding the

possibility Rice could contract Parkinson’s disease similarly did not affect Rice’s

substantial rights or cause the rendition of an improper judgment because

Romero’s testimony sufficiently supported the jury’s no-damages finding even

considering this portion of Pollock’s expert testimony.4    See Tex. R. App. P.

44.1(a)(1); Tex. R. Evid. 103(a); Garden Ridge, L.P. v. Clear Lake Ctr., L.P.,

504 S.W.3d 428, 441–42 (Tex. App.—Houston [14th Dist.] 2016, no pet.); State

Office of Risk Mgmt. v. Edmondson, 305 S.W.3d 344, 350–51 (Tex. App.—Dallas

2010, no pet.).

      Because the jury’s finding of no damages was supported by factually

sufficient evidence, rendering the presumed error of the jury’s no-negligence

finding harmless, and because the exclusion of Pollock’s Parkinson’s-propensity

testimony did not affect Rice’s substantial rights or result in the rendition of an



      4
       Additionally, Rice is incorrect that the exclusion of the Parkinson’s-
propensity evidence was reversible error. The trial court’s exclusion of this
evidence, which did not pertain to any condition Rice had actually been
diagnosed with and was no more than a mere possibility or conjecture, was not
an abuse of its discretion. See Tex. R. Evid. 401, 403; Waffle House, Inc. v.
Williams, 313 S.W.3d 796, 812 (Tex. 2010); cf. Merrell Dow Pharm., Inc. v.
Havner, 953 S.W.2d 706, 711–12 (Tex. 1997) (stating that expert’s causation
opinion based on possibility, speculation, or surmise is not evidence).

                                        9
improper judgment, we overrule Rice’s issues and affirm the trial court’s

judgment. See Tex. R. App. P. 43.2(a).


                                            /s/ Lee Gabriel

                                            LEE GABRIEL
                                            JUSTICE

PANEL: MEIER, GABRIEL, and BIRDWELL, JJ.

DELIVERED: June 28, 2018




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