                                                                               ACCEPTED
                                                                           14-14-00411-CV
                                                           FOURTEENTH COURT OF APPEALS
                                                                        HOUSTON, TEXAS
                                                                     6/10/2015 10:16:06 PM
                                                                     CHRISTOPHER PRINE
                                                                                    CLERK

                 NO. 14-14-00411-CV

            IN THE COURT OF APPEALS             FILED IN
                                          14th COURT OF APPEALS
      FOR THE FOURTEENTH DISTRICT OF TEXAS HOUSTON, TEXAS
                                                 6/10/2015 10:16:06 PM
                                                 CHRISTOPHER A. PRINE
                  PAMELA WALKER,                          Clerk
                     Appellant,

                           v.

        SUZANNE SCOPEL AND JUSTIN SCOPEL,
                   Appellees.


    On Appeal from Cause Number 12-DCV-200283
From the 268th District Court of Fort Bend County, Texas



                BRIEF FOR APPELLANT
         ORAL ARGUMENT REQUESTED



                                REGINALD E. MCKAMIE, SR.
                                TBN. 13686750
                                1210 Antoine Drive, Suite 100
                                Houston, Texas 77055
                                Phone: (713) 465-2889
                                Fax: (713) 465-2894

                                Counsel for Appellant




                           i
                    IDENTITY OF PARTIES AND COUNSEL


PLAINTIFF/APPELLANT:                       Pamela Walker

DEFENDANT/APPELLEE:                        Justin Scopel

COUNSEL FOR PLAINTIFF/APPELLANT:           Reginald E. McKamie, Sr.
                                           Attorney at Law
                                           1210 Antoine, Suite 100
                                           Houston, Texas 77055

COUNSEL FOR DEFENDANT/APPELLEE:            IRESON & WEIZEL, PLLC
                                           Lansford O. Ireson, Jr.
                                           9720 Cypresswood, Suite 310
                                           Houston, Texas 77070

PRESIDING JUDGE AT TRIAL:                  Hon. Brady G.Elliott
                                           268th District Court
                                           Harris County, Texas
                                           1422 Eugene Heimann Cir.
                                           Richmond, Texas 77469




                                   ii
                                              TABLE OF CONTENTS

IDENTITY OF THE PARTIES AND COUNSEL .................................................................. ii

TABLE OF CONTENTS ................................................................................................ iii

INDEX OF AUTHORITIES ............................................................................................ iv

STATEMENT OF THE CASE ........................................................................................... 1

ISSUES PRESENTED ..................................................................................................... 2

STATEMENT OF FACTS ............................................................................................... 3

SUMMARY OF THE ARGUMENT ................................................................................... 7

ARGUMENT ................................................................................................................ 8

         A. The trial court erred in admitting photographs of extremely limited
         probative value that was substantially outweighed by the danger of
         unfair prejudice, confusing the issues, and misleading the jury .............. 8

         B. The jury was not at liberty to award no damages to Walker. The
         evidence that Walker suffered some amount of physical pain and mental
         anguish and physical impairment was undisputed .................................. 11

PRAYER ................................................................................................................... 14

CERTIFICATE OF SERVICE ........................................................................................ 15

CERTIFICATE OF COMPLIANCE ................................................................................ 15

APPENDIX ............................................................................................................... 16




                                                             iii
                                             INDEX OF AUTHORITIES

CASES
Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925 (Tex. 1993)................................. 9
Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497 (Tex. 1995) ........................... 10
Coates v. Whittington, 758 S.W.2d 749 (Tex. 1988).............................................. 11
Hicks v. Ricardo, 834 S.W.2d 587 (Tex. App.—Houston [1st Dist.] 1992, no writ)..
   ............................................................................................................................. 11
Insurance Co. of North Am. v. Myers, 411 S.W.2d 710 (Tex.1966).. .................... 10
Lopez v. Carrillo, 940 S.W.2d 232 (Tex. App. — San Antonio 1997). ................... 9
Lowery v. Berry, 269 S.W.2d 795 (Tex. 1954)....................................................... 11


RULES
Tex. R. Evid. 403 ...................................................................................................... 8




                                                               iv
                         STATEMENT OF THE CASE

          On August 19, 2012, Pamela Walker (“Walker”) filed suit against Justin

Scopel and Suzanne Scopel for damages she sustained in a car accident that

occurred on January 5, 2012. (CR 6-10).

          On March 25, 2014, Walker non-suited all of her claims against Suzanne

Scopel as well as her claims for medical expenses (RR 2:5), lost wages (RR 2:5),

and punitive damages (RR 2:10) against Justin Scopel. Justin Scopel (“Scopel”)

stipulated to causing the accident. (RR 2:5).

          Both parties announced ready for trial and proceeded only on the issue of

damages for past and future physical pain and mental anguish and past a future

physical impairment. On March 27, 2014, the jury awarded zero damages on each

of Walker’s claims. (CR 73).

          The district court entered judgment that Walker take nothing on May 2,

2014. (CR 78). On May 27, 2014, Walker filed her notice of appeal. (CR 82).




                                          1
                           ISSUES PRESENTED

1.   Did the court err by admitting photographs whose probative value was
     substantially outweighed by the danger of unfair prejudice, confusing the
     issues, and misleading the jury over the Plaintiff’s objection?

2.   Was the jury free to award zero damages when liability was stipulated and
     there was undisputed evidence of damages caused by the collision?




                                     2
                              STATEMENT OF FACTS

      On January 5, 2012, Justin Scopel (“Scopel”) failed to control his speed and

collided with the rear of Pamela Walker’s (“Walker”) vehicle. It is undisputed that

Scopel caused the collison. (RR 2:5, 3:5). Walker’s neck whipped forward and her

back popped on impact. (RR 3:100). She called 911 and asked that an ambulance

be dispatched because her neck and back were hurt in the collision. (RR 3:100).

The ambulance arrived and then transported her to the hospital. (RR 3:15, 100).

      At the hospital, Walker underwent a CAT scan             (RR 3:101) and was

diagnosed with lumbar strain and cervical strain due to the collision. (P. Ex. 1).

      Walker was involved in another motor vehicle accident approximately seven

months earlier, in June 2011. (RR 3:104). In that accident, she suffered a bruise on

her hand. (RR 3:105). She experienced some short-term back and neck pain from

that accident and sought a referral for physical therapy. (D. Ex. 2). However, the

pain resolved, she had no lingering neck or back problems (RR 3:105), and she

never sought treatment. (RR 3:123).

      In contrast, after the collision with Scopel that is the subject of this case,

Walker experienced “intense pain” that she had not experienced prior. (RR 3:113).

She was no longer able to work in her garden (RR 3:91) as she had before the

accident. (RR 3:87). She was unable to do her daughter’s hair. (RR 3:92). She

was no longer able to sit through her son’s basketball games, and thus stopped



                                          3
attending. (RR 3:92). She stopped cooking, no longer slept through the night, and

was no longer able to take regular trips with her husband, all of which she had

done prior to the collision. (RR 3:86, 91, 93).

      After the collision, Walker went to see her primary-care physician, who

referred her to physical therapy. (RR 3:107).       She saw a physical therapist

approximately 13 times. (RR 3:107). At trial, Renee Blalock (“Blalock”), the

therapist who conducted the majority of Walker’s sessions, testified. (RR 3:67-85).

      Blalock testified about her assessment of Walker.

      Objectively, there were found to be deficits in her following the
      flexibility and her balance and her ability to perform what we call a
      functional squat. There were deficits in the mobility of her lumbar
      spine, which is her low back spine. There were -- there was weakness
      found in her lower extremity muscles as well as in her spinal and core
      musculature. There was also tenderness upon palpation, which means
      upon feeling the muscles there was pain and tenderness and her range
      of motion in her low back was limited with pain, as well. And that's
      the objective part of it.

(RR 3:70). Blalock also testified unequivocally that, based on her experience and

training, Walker was not faking her injuries, as well as how she reached that

conclusion. (RR 3:77-79).

      Walker stopped physical therapy when her primary doctor referred her to a

spine specialist, who in turn recommended that she see a chiropractor or an

acupuncturist for her pain. (RR 3:107). She did see an acupuncturist and also

began seeing Dr. Roberto Solis (“Dr. Solis”), a chiropractor. (RR 3:108).



                                          4
      Dr. Solis testified as both a fact witness and an expert witness at trial. (RR

3:19). He had reviewed Walker’s MRI (P. Ex. 3) and testified that it showed bone

spurring and a bulging disc, among other things. (RR 3:23). He further testified

that while most of the findings on Walker’s MRI could be attributed to

degeneration or simple aging, in his expert opinion, the bulging disc was a result of

trauma. (RR 3:25). This injury is consistent with the head whip one experiences in

a rear-end collision. (RR 3:26). Furthermore, even if the bulging disc had existed

prior to the collision with Scopel, that collision would have caused increased

trauma to it. (RR 3:26).

      Dr. Solis testified about over 30 visits with Walker. (RR 3:20-51). He

testified that she was obviously in pain from the collision (RR 3:29), and that

treatment would ease the pain, but it would return several hours later. (RR 3:32).

      Dr. Solis testified that at each of the visits, he conducted “a palpatory

assessment, basically just feeling for muscle tightness, muscle spasms, joints that

may not be moving the way that they're supposed to.” (RR 3:51). Each time he

conducted this assessment, he detected “very consistent pain, inflammation, a

tightness and tenderness in the upper neck and the back.” (RR 3:52).

      At trial, Scopel rested behind Walker, calling no witnesses. (RR 3:133).

Scopel’s evidence consisted of just three exhibits, including photographs of

Walker’s vehicle admitted over her objection. (D. Ex. 1).



                                         5
      Scopel also presented an email showing that Walker had previously sought a

referral for physical therapy (RR 3:122, D. Ex. 2) and a portion of her medical

records showing that she had experienced some arm pain prior to the accident, but

that the accident had exacerbated it. (RR 3:129, D. Ex. 3).




                                         6
                       SUMMARY OF THE ARGUMENT

      The trial court erred by admitting three photographs offered by Scopel. The

photographs were of extremely limited probative value to the amount of physical

pain, mental anguish, and physical impairment suffered by Walker, which were the

only questions before the jury. What little, if any, probative value the photographs

did have was substantially outweighed by the danger of unfair prejudice, confusing

the issues, and misleading the jury.

      The jury awarded Walker no damages after speculating that because the

photographs showed minimal damage to Walker’s vehicle, the collision must have

been low-impact. The jury further speculated that Walker could not have been

injured in the purportedly low-impact collision.

      The jury was not at liberty to award Walker no damages when the evidence

was undisputed that the collision caused Walker some amount of damages for

physical pain and mental anguish and physical impairment.




                                         7
                                      ARGUMENT

   A.      The trial court erred in admitting photographs of extremely limited
           probative value that was substantially outweighed by the danger of
           unfair prejudice, confusing the issues, and misleading the jury.

        Walker moved to exclude three photographs (D. Ex. 1) of her vehicle taken

by Scopel after the collision. (RR 2:11). The court denied her motion and admitted

the photographs into evidence. (RR 2:12). The photographs were published to the

jury during Scopel’s testimony. (RR 3:15). Scopel’s counsel implied through his

questioning, and later argued that because her vehicle was not badly damaged, she

could not have been hurt. (RR 3:16, 4:20).

        The probative value of the photographs was limited, at best. While they

clearly would have been relevant to any property damage claim, there was no

claim for property damage at issue in the trial. (CR 73). The photographs also

would have been probative of the issue of causation, but causation had been

stipulated. (RR 2:5).

        The photographs were simply of extremely limited, if any, probative value to

Walker’s physical pain, mental anguish, or physical impairment, which were the

only questions before the jury. What little probative value they might have had

was clearly substantially outweighed by the danger of unfair prejudice, confusing

the issues, and misleading the jury and they should have been excluded under Tex.

R. Evid. 403.


                                          8
         Scopel introduced the photograph in order to invite the jury to speculate that

because the damage to Walker’s vehicle was relatively minor, the collision must

have been low-impact. The jury was then invited to draw the further speculative

conclusion that because the collision was purportedly low-impact, Walker must be

faking her injuries. (CR 4:20).

         This is simply conjecture, not evidence. “Some suspicion linked to other

suspicion produces only more suspicion, which is not the same as . . . evidence.”

Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 927 (Tex. 1993). Clearly the

danger for unfair prejudice, confusing the issues, and misleading the jury was

great.

         Furthermore, the probative value of the photographs to claims before the

jury was so minimal as to border on irrelevance. However, even if it could meet

that minimal standard, the probative value was so slight that the great danger for

unfair prejudice, confusing the issues, and misleading the jury substantially

outweighed it.

         Proving causation between negligence and injury requires expert testimony.

Lopez v. Carrillo, 940 S.W.2d 232, 234 (Tex. App. — San Antonio 1997).




                                            9
      To constitute evidence of causation, an expert opinion must rest in
      reasonable medical probability. Insurance Co. of North Am. v. Myers,
      411 S.W.2d 710, 713 (Tex.1966). This rule applies whether the
      opinion is expressed in testimony or in a medical record, as the need
      to avoid opinions based on speculation and conjecture is identical in
      both situations.

Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 500 (Tex. 1995).

      Scopel’s opinion (RR 3:16) and his counsel’s opinion (RR 4:20) that the

photographs are evidence that the collision did not cause any damages for physical

pain, mental anguish, and physical impairment to Walker simply cannot meet this

standard.

      Walker proved causation between Scopel’s negligence and her injuries

through Dr. Solis’ expert testimony. (RR 3:17-53). Scopel failed to negate

Walker’s proof either through his own expert or through his cross-examination of

Dr. Solis. The photographs simply lacked any meaningful probative value in an

area that is the domain of expert testimony.

      Clearly the jury was confused and misled by the photographs. It is the only

way to explain their decision to award no damages whatsoever despite the

overwhelming evidence that the collision did indeed cause at least some amount of

physical pain, mental anguish, and physical impairment to Walker.




                                         10
   B.      The jury was not at liberty to award no damages to Walker. The
           evidence that Walker suffered some amount of physical pain and
           mental anguish and physical impairment was undisputed.

        A jury is not at liberty to award zero damages when the evidence is

undisputed that a plaintiff suffered injury. See Lowery v. Berry, 269 S.W.2d 795,

796–97 (Tex. 1954). If any of the jury’s damages findings is against the great

weight and preponderance of the evidence, the proper remedy is to reverse the

verdict and remand the case for a new trial. Hicks v. Ricardo, 834 S.W.2d 587, 590

(Tex. App.—Houston [1st Dist.] 1992, no writ).

        The only evidence presented by Scopel, other than the improperly admitted

photographs, was an email and a portion of Walker’s medical records showing that

she had experience some pain prior to the collision. (D. Ex. 2, D. Ex. 3). As any

first year law student can tell you, it is well settled that a tortfeasor takes the

plaintiff as he finds her. See Coates v. Whittington, 758 S.W.2d 749, 752 (Tex.

1988) (a.k.a. the "eggshell skull rule"). None of Scopel’s evidence, including the

photographs, dispute Walker’s ample evidence that she suffered some amount of

damages as a result of the collision.

        Whether or not Walker had experienced pain at some point in her life prior

to the collision does not absolve Scopel of responsibility for the damages he

caused. Even if Walker had some actual pre-existing condition, which Scopel’s




                                            11
meager evidence does not show, he is still responsible for her damages to the

degree that his negligence aggravated the condition.

      In his expert testimony, Dr. Solis conceded that he could not say for certain

that Walker did not have a torn disc prior to the collision with Scopel. However,

he stated unequivocally, “every single accident you have will cause increased

trauma to those particular areas. It basically is like pouring more fuel on the fire.”

(RR 3:26-27). This simple fact is not disputed or called into question in any way

anywhere in the record. With causation of the collision conceded, this evidence

alone renders the jury’s award of no damages as against the great weight and

preponderance of the evidence.

      The jury awarded Walker no damages for past or future physical pain and

mental anguish despite undisputed evidence that she had suffered physical pain and

mental anguish as a result of Scopel’s negligence.

      Dr. Solis testified that Walker was obviously in pain. (RR 3:29). He also

conducted “several orthopedic tests that were positive for inflamed joints, pain in

the neck, and the low back.” (RR 3:21). On each of the more than 30 times he saw

her, he conducted a palpatory assessment. Each and every time, he found “very

consistent pain, inflammation, a tightness and tenderness in the upper neck and the

back.” (RR 3:52).




                                          12
       Blalock testified that she objectively found “pain and tenderness and

[Walker’s] range of motion in her low back was limited with pain, as well.” (RR

3:70). She further testified that she was trained to detect people faking pain (RR

3:77), how she detects it (RR 3:78-79), and that Walker was not faking her pain.

(RR 3: 77-79).

       Gregory Walker testified that when he first saw Walker after the collision, “I

found my wife was in pain, discomfort.” (RR 3:90). He also testified about having

to massage his wife’s back to relieve the pain from back spasms. (RR 3:90-91).

       Walker herself testified to the “intense pain” she experienced after the

collision that she had never experienced prior. (RR 3:113). She also testified that

while she had experienced slight numbness prior to the collision, she had not

experienced the type of intense pain she had afterwards. (RR 3:133).

       As to future physical pain and mental anguish, Walker testified that even at

the time of trial, she had to wear patches to control the pain and spasms. (R 3:133).

The fact that the pain persisted more than two years after the collision makes it a

near certainty that it would continue after the trial and that she would experience at

least some amount of physical pain and mental anguish in the future.

       The jury also awarded Walker no damages for past or future physical

impairment despite undisputed evidence that she had suffered physical impairment

as a result of the collision.



                                          13
      In addition to seeing bone spurring and disc bulging in Walker’s MRI (RR

3:23), Dr. Solis detected inflamed joints (RR 3:21), general inflammation, and

tightness and tenderness when he examined Walker after the collision. (RR 3:52).

      Blalock also testified to Walker’s physical impairment. After the collision,

Walker objectively had flexibility deficits, mobility deficits, and muscle weakness

in her spinal and core musculature. (RR 3:70). She also had difficulty tolerating

exercises and “required frequent position changes due to difficulty tolerating one

position for longer than five minutes.” (RR 3:70-71).

      Gregory Walker provided ample evidence of Walker’s physical impairment.

He testified that prior to the collision, Walker gardened. (RR 3:87). After the

collision, Walker was no longer able to garden. (RR 3:91). He testified that prior

to the collision, he and Walker took regular trips (RR 3:86). After the collision,

she was unable to sit for the period of time required to travel on a regular basis.

(RR 3:91).

      He testified that Walker did not feel physically up to doing her daughter’s

hair after the collision (RR 3:92) and that she was no longer able to attend her

son’s basketball games. (RR 3:92, 95). Furthermore, she stopped cooking and

stopped sleeping through the night as a result of the physical impairment she

suffered as a result of the collision. (RR 3:93).




                                           14
      Gregory Walker also provided some evidence of future physical impairment.

He testified that his wife has gotten better, but she still needed to stretch more and

was still trying to regain a sense of normalcy. (RR 3:95).

      Walker’s own testimony was that she had experienced no lingering neck or

back problems from her previous collision. (RR 3:105). She testified that she

could no longer drive or ride in a car for more than an hour under normal

circumstances after the collision. (RR 3:111). She testified that she could no

longer engage in regular sexual activity with her husband (RR 3:114), which he

corroborated. (RR 3:91).

      She also testified that she had spasms while testifying at the trial itself (RR

3:133), making it a near certainty that the impairment would continue in the future.

      None of the evidence that Walker sustained damages in the collision was

disputed in any way. All of Scopel’s evidence, including the photographs (D. Ex.

1), the email (D. Ex.2), and the excerpt of Walker’s medical records (D. Ex. 3), go

to the degree to which she suffered damage, not whether she suffered damage.

The evidence is thus undisputed that Walker suffered some damages as a result of

the collision and the jury was not at liberty to award zero damages.




                                          15
                                        PRAYER

         For the foregoing reasons, Appellant respectfully requests this honorable

court to reverse the judgment, grant a new trial, and remand this case to the district

court.



                                              Respectfully submitted,

                                              Law Offices of Reginald E.
                                              McKamie, Sr., P.C.


                                              /s/ Reginald E. McKamie, Sr_____
                                              REGINALD E. MCKAMIE, SR.
                                              TBN: 13686750
                                              1210 Antoine, Suite 100
                                              Houston Texas 77055
                                              (713) 465-2889
                                              (713) 465-2894 fax
                                              Attorney for Appellant:
                                              PAMELA WALKER




                                         16
                         CERTIFICATE OF SERVICE

      I certify that a copy of this instrument has been served upon opposing

counsel.

                                                   /s/ Reginald E. McKamie, Sr_____
                                                   REGINALD E. MCKAMIE, SR.


                      CERTIFICATE OF COMPLIANCE


      This document complies with the typeface requirements of Tex. R. App. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the

word-count limitations of Tex. R. App. P. 9.4(i) because it contains 3,422 words.



                                                   /s/ Reginald E. McKamie, Sr____
                                                   REGINALD E. MCKAMIE, SR.




                                        17
APPENDIX




   18
Texas Rules of Evidence

Rule 403.
Excluding Relevant Evidence for Prejudice, Confusion, or Other Reasons

The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, or
needlessly presenting cumulative evidence.
08S         i;        I
        J.IBIHX3      l
      S,J.NVON3:130
£0::JS
          Walker, Pamela D (MR # 07282551)                                                                              Encounter Date: 06/28/2011


             Author                   Note Status             Last Update User                            Last Update DatefTime
             Cherice M Conley-Harvey, Signed                  Cherice M Conley-                           6/30/2011 9:50 AM
             MD                                               Harvey, MD
          Telephone Encounter
              From: WALKER. PAMELA 0
              To: Cherice M Conley-Harvey, MD
              Sent: Tue Jun 2 8, 2011 9:47 AM
               Subject: Physical Therapy

             Good Morning,

             I wa$ in a hiVrun car accident last week and in need of a physical therapist. Would you please schedule me
             with one? I injured my left hand however; my neck and back are beginning to hurt. Thanks!

             Please reply_ lo this message by electronic messaging.




              -     •     '" •n """"'"n"'"' ee I '   n .._.:_ .. _ ... t... •• r _ T - - - r n d Tr. A C l - · C l ,   I,, ..,   .::.A n   A AA
KELSEY SEYBOLD CLI N IC - ivIEDICAL                                                                                                               [5442558-04] 90
      16                             Clinic   LAKES AT 610                              WALKER.PAMELA D
                                              8900 LAKES AT 610                         MRN: 07282551
                                              HOUSTON, TX 77054-2525                    DOB: 12114/1966, Sex: F
                                              KSC COMPLETE CHART                        Enc. Date:04/03/12

      Patient Information (continued)
      Meds Comments as of 2127/2012
           2127/2012 Pt. Stopped reflux med. One week ago. Takes Nutrilite multi-vii.


      Ordered Medications
                                                                   Disp            Refills       Start            End
           Pregabalin (LYRICA) 25 MG OR CAPS                       60 each         0             4/3/2012         5/4/2012
           (Discontinued)
             Sig: 1 po hs for one week, then bid

      All Results
          No results found

      Vitals - Last Recorded
           Ht                                 Wt                                                 BMI        LMP
           5'   r {1.702 m)                   140 lb (63.504 kg)                                 21.93      03/1212012
                                                                                                 kg/m2

           Vitals History Recorded

      Progress Notes

      Keosha Albert Cma I Certified Medical Assistant I 4/3/2012 9: 11 AM Signed
      Referral? Self referral

      Chief complairit:
      Chief Complaitit
      Patient           with
       • Back Pain


      Pain: 2110


      A) Chief complaint or Subjective:
             Where is your pain?: left arm pain for approx. 4-5 years, left arm tingling and numbness, leg tingling
      and numbness - emg 2010 neg for peripheral neuropathy. emg 2011 of left upper limb was normal. Reports
      aching and tingling/numbness in left arm is worse following an mva in early 2012.

                     When did this problem start? 3 month(s); sx also present prior for approx. 4 years, no inciting
      event 4 years ago
                     How did this pain start? gradually 4 years ago
                    Any inciting event?: yes - nothing in particular but cites an mva 3 mo ago making left arm
      symptoms worse

                   Is the pain improving, worsening, or stable over time?: worsening left shoulder and neck/lower
      back improving           .
                   Have you had this pain before? - reports no initially, but later states she's had left arm tingling
      and numbness for several years.

                                                                                    DEFENDANT'S
                       Typical pain severity: 2/10
      Printed on 5/31/2013 6:41 AM                                            I       EXHIBIT                      Page 35 of 80
                                                                              lJ             3
KELSEY SEYBOLD CLINIC - MEDICAL                                                                                   [5442558-04] 36
                                                                                    WALKER,PAMELA D
      9' Kelsey-Seybold Clinic                                                      MRN: 07282551
                                               HOUSTON, TX 77054-2525               DOB: 12/14/1966, Sex: F
                                               KSC COMPLETE CHART                   Enc. Date:04/03112

      Patient Information (continued)
      Progress Notes (continued)

                        Pain severity during flare-ups: 4/10

                     How often do you get a flare up? Several times a week and Factors that cause a flare up:
      prolonged sitting/lifting and bending

                        What is the duration of your pain? M1nutues/hours/daily

                        Describe your pain: Burning arm/shoulder, Dull, Pins/Needles back, Numbness arms and
      shoulder

                        What activity increases your pain? Sitting, Bending, Lifting, Driving

                        What have you tried for this pain? Rest, Heat. Physical Therapy, Medications - (ibuprofen).
      exercise
                        Prior experience with neurontin: Caused suicidal ideation; SSRI, sx did not improve

                        Do you have any .. Weakness yes .. left arm and hand and Numbness yes - left arm and hand

                        What position/activities improve the pain?: None in particular

                        Which doctors have you seen for this problem? Physical Therapist and Neurologist

                        What diagnostic tests have you had for this pain? MRI Scan: Results: and CT Scan: Results:
      Blood Thinners:

      Allergies
      Allergen                                                    Reactions
        • Azithromycin
             Felt like her throat was closing up.
        • Codeine                                                 Rash
        • Nitrofurantoin                                          Hives

      Current Outpatient PrescrfpUons
      Medication                                    Sig                                 Dispense        Refill
        • Ergocalciferol 50000 UNIT OR Take 1 capsule by mouth once a                    4capsule        1
          CAPS                         week
        • Ibuprofen 600 MG OR TABS     Take 600 mg by mouth every 6
                                       hours as needed
        • IRONOR                       Take by mouth                                               •
        • OMEPRAZOLE 40 MG OR CPDR TAKE 1 CAPSULE BY MOUTH                               30 capsule ·    0
                                       EVERY MORNING 1/2 HOUR
                                       PRIOR TO BREAKFAST
        • Venlafaxine HCI (EFFEXOR XR) Take 1 capsule by moulh daily                     30capsule       2
          37.5 MG OR CP24



       Printed on 5/31/2013 6:41 AM                                                                              Page 36of80

KELSEY SEYBOLD CLINIC - lvfEDICAL                                                                                [5442558-04] 37
