                                                                                                                   ACCEPTED
                                                                                                               14-15-00628-CV
                                                                                               FOURTEENTH COURT OF APPEALS
                                                                                                            HOUSTON, TEXAS
                                                                                                         12/21/2015 3:18:30 PM
                                                                                                         CHRISTOPHER PRINE
                                                                                                                        CLERK

                          No. 14-15-00628-CV
           _______________________________________________
                                                          FILED IN
                                                    14th COURT OF APPEALS
                 IN THE COURT OF APPEALS FOR THE HOUSTON, TEXAS
                  FOURTEENTH DISTRICT OF TEXAS 12/21/2015 3:18:30 PM
                          HOUSTON, TEXAS            CHRISTOPHER A. PRINE
          _________________________________________________Clerk

                                    DEBBIE PATTILLO,
                                               Appellant,

                                                   v.

                          SYLVIA FRANCO,
                                       Appellee
          _________________________________________________

                      On Appeal from Cause No. 1024502
                 County Court at Law No. 4, Harris County, Texas
                    Honorable Roberta Lloyd, Presiding Judge
__________________________________________________________________________________________________________


                                    APPELLEE’S BRIEF


                                                        BARBARA L. HACHENBURG
                                                        State Bar No. 08667070
                                                        bhachenburg@germer.com
                                                        KELLI B. SMITH
                                                        State Bar No. 24008053
                                                        ksmith@germer.com
                                                        Three Allen Center
                                                        333 Clay Street, Suite 4950
                                                        Houston, Texas 77002
                                                        (713) 650-1313 – Telephone
                                                        (713) 739-7420 – Facsimile
                                                        bhachenburg@germer.com
                                                        ksmith@germer.com
                                                        ATTORNEYS FOR APPELLEE
                         ORAL ARGUMENT IS NOT REQUESTED
                       IDENTITY OF PARTIES AND COUNSEL

      Pursuant to Rule 38.1(a), Appellee provides this list of all parties to the order

appealed from and the names and addresses of all trial and appellate counsel:

Plaintiff/Appellant:                           Debbie Pattillo

Counsel for Plaintiff/Appellant:               Scott G. Robelen
                                               State Bar No. 16990045
                                               BAILEY & GALYEN
                                               4131 N. Central Expressway, Suite 860
                                               Dallas, Texas 75204
                                               Phone: (214) 252-9099
                                               Fax: (214) 520-9941
                                               srobelen@galyen.com

Defendant/Appellee:                            Sylvia Franco

Appellate Counsel for                          Barbara L. Hachenburg
Defendant/Appellee:                            State Bar No. 08667070
                                               bhachenburg@germer.com
                                               Kelli B. Smith
                                               State Bar No. 24008053
                                               ksmith@germer.com
                                               GERMER PLLC
                                               Three Allen Center
                                               333 Clay Street, Suite 4950
                                               Houston, Texas 77002
                                               Phone: (713) 650-1313
                                               Fax: (713) 739-7420

Trial Counsel for                              Allen A. King
Defendant/Appellee:                            State Bar No. 11433490
                                               DAVID BLACK & ASSOCIATES
                                               1221 Lamar, Suite 900
                                               Houston, Texas 77010
                                               Phone: (713) 437-8200
                                               Fax:     (855) 460-3974
                                               texs.law-dblackassoc@statefarm.com
                                          ii
                                              TABLE OF CONTENTS

                                                                                                                      PAGE

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

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

INDEX OF AUTHORITIES .............................................................................................. v

STATEMENT OF THE CASE ......................................................................................... vii

STATEMENT REGARDING ORAL ARGUMENT .............................................................. vii

ISSUE PRESENTED .................................................................................................... viii

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

SUMMARY OF THE ARGUMENT..................................................................................... 5

STANDARD OF REVIEW................................................................................................ 5

ARGUMENT ................................................................................................................. 7

         I.        The trial court did not abuse its discretion by refusing
                   Plaintiff’s requested jury instruction on circumstantial
                   evidence, nor did such refusal result in an improper verdict ......... 7

         II.       The trial court did not abuse its discretion by refusing
                   Plaintiff’s requested jury instruction on the “Eggshell
                   Skull” Rule, nor did such refusal result in an improper
                   verdict ................................................................................................. 10

CONCLUSION AND PRAYER ....................................................................................... 11

CERTIFICATE OF SERVICE ......................................................................................... 13

CERTIFICATE OF COMPLIANCE ................................................................................... 13


                                                             iii
APPENDIX.................................................................................................................. 14




                                                             iv
                                            INDEX OF AUTHORITIES


CASES

Adams v. Valley Fed. Credit Union, 848 S.W.2d 182 (Tex. App.—
     Corpus Christi 1992, writ denied) ................................................................... 8

Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743 (Tex. 1980) ........................... 6

Carter v. Johnson, No. 04-11-00088-CV, 2012 WL 566089 (Tex. App.—
      San Antonio 2012, no pet.) ............................................................................ 11

Daniels v. Southwestern Transp., 621 S.W.2d 188 (Tex. App.—
     Texarkana 1981, no writ)................................................................................. 8

DeLeon v. Furr’s Supermkts., Inc., 31 S.W.3d 297 (Tex. App.—El Paso
     2000, no pet.) ................................................................................................... 6

Gutierrez v. People’s Management of Texas I, Ltd., 277 S.W.3d 72 (Tex.
      App.—El Paso 2009, pet. denied) ............................................................... 5, 6

Jackson v. Fontaine’s Clinics, Inc., 499 S.W.2d 87 (Tex. 1973) .............................. 6

Johnson v. Zurich General Acc. & Liab. Ins. Co., 205 S.W. 2d 353 (Tex.
     1947) ................................................................................................................ 7

Larson v. Ellison, 217 S.W.2d 420 (Tex. 1949) ........................................................ 7

Lozano v. Lozano, 52 S.W.3d 141 (Tex. 2001) ......................................................... 9

Owens–Corning Fiberglas Corp. v. Martin, 942 S.W.2d 712 (Tex.
     App.—Dallas 1997, no pet.) ............................................................................ 6

Walker v. Gutierrez, 111 S.W.3d 56 (Tex. 2003) ...................................................... 5

Wal–Mart Stores, Inc. v. Middleton, 982 S.W.2d 468 (Tex. App.—San
     Antonio 1998, pet. denied) .......................................................................... 5, 6



                                                             v
RULES AND STATUTES

TEX. R. CIV. P. 277 .................................................................................................. 5,6

TEX. R. CIV. P. 278 ..................................................................................................... 6




                                                            vi
                              STATEMENT OF THE CASE

      This lawsuit arises from a minor traffic accident. (Clerk’s Record “CR” at

4). Defendant/Appellee Sylvia Franco stipulated to liability, and Plaintiff Debbie

Pattillo’s damages were tried to a jury. (CR at 36). Following a one-day trial, the

jury awarded Plaintiff no damages.          (CR at 39). Honorable Roberta Lloyd,

presiding judge of County Court at Law No. 4, Harris County, Texas, subsequently

entered judgment on the verdict for Defendant. (CR at 56).

      By way of this appeal, Plaintiff complains that the trial court erred in

refusing to submit requested instructions to the jury on circumstantial evidence and

the Eggshell Skull Rule.

                    STATEMENT REGARDING ORAL ARGUMENT

      Defendant does not believe that oral argument would aid the Court in its

determination of this appeal, because the legal issues are not complex and the

record is relatively short and speaks for itself.




                                           vii
                               ISSUES PRESENTED

I.    Did the trial court act within in its discretion when it refused Plaintiff’s

      requested jury instruction on circumstantial evidence? Was the trial court’s

      refusal to provide such an instruction harmless?

II.   Did the trial act within its discretion when it refused Plaintiff’s requested

      jury instruction on the Eggshell Skull Rule? Was the trial court’s refusal to

      provide such an instruction harmless?




                                        viii
                               STATEMENT OF FACTS

      Plaintiff and Defendant were involved in a minor vehicle accident on

December 22, 2010. (CR at 5). They were in stop-and-go traffic, when Defendant

“bumped” the rear of the rental car Plaintiff was driving. (Volume 1 of the

Reporter’s Record “1 RR” at 44, 58-59).        Defendant checked on Plaintiff, who

stated she was okay. (1 RR at 45, 59). No one called for an ambulance. Id.

Instead, Defendant exchanged insurance information with Plaintiff, and both went

about their way. (1 RR at 45, 60-61).

      Defendant testified there was no damage to her vehicle other than a very

slight dent on her license plate. (1 RR at 60-61). Likewise, the rental car that

Plaintiff was driving sustained very little damage. In fact, Plaintiff continued

driving the same rental car for the next couple of days, until it was time to turn it in

on Christmas Eve. (1 RR at 45-46).

      Plaintiff celebrated Christmas as planned and was off of work through the

New Year holiday. (1 RR at 46). Plaintiff returned to work after the first of the

year without raising any complaints. Id. Finally, on January 12, 2011—about

three weeks after the accident—Plaintiff decided to seek medical care for low back

pain. Id.

      Plaintiff went to a chiropractor based on a friend’s recommendation and

reported that her low back was injured in the automobile accident. (1 RR at 47.


                                           1
Plaintiff was eventually diagnosed with a lumbar herniated disk and received

epidural steroid injections (“ESI”) in April and June 2011. (Volume 2 of the

Reporter’s Record “2 RR,” Plaintiff’s Exhibits 3 and 7). She had no medical

treatment in 2012 or 2013. (1 RR at 48-49). She had a third ESI more than three

years later in August 2014. (1 RR at 49).

      Significantly, Plaintiff had a history of low back pain for several years prior

to the accident. In a Patient Condition questionnaire, Plaintiff stated the onset of

her lower back pain was “2008.” (2 RR, Plaintiff’s Exhibit 1 at p. 53, attached as

Appendix Tab 1). When asked whether and when she had seen another doctor for

this condition, she indicated yes, in October 2010. Id. In fact, Plaintiff had visited

her doctor at the Kelsey Seybold Clinic in August 2010—just four months prior to

the accident—and sought treatment for “constant” low back pain.               (2 RR,

Defendant’s Exhibit 1 at 2, 5, attached as Appendix Tab 2; see also 1 RR at 42,

43). Plaintiff’s doctor prescribed her a 90 day supply of Methocarbamol (a muscle

relaxant) for back pain and muscle spasms. (1 RR at 43-44, 2 RR, Defendant’s

Exhibit 1 at 3,4). Plaintiff’s prescription ran out just a few weeks prior to the

accident. (1 RR at 43-44).

      Remarkably, Plaintiff testified during direct examination at trial that she had

never previously sought treatment for an injury to her back:

      Q:     Prior to this accident here, had you ever sustained an injury to your
             back?
                                          2
      A:     Not to my back. Not that I recall. I pulled a muscle from exercising.

      Q:     Had you ever sought treatment for injury to your back prior to the
             accident that we are here about today?

      A:     No, not to my back.

(1 RR at 21-22). During cross examination, however, Plaintiff admitted that she

had prior treatment for a back injury.         As an explanation for her impeached

testimony, she stated, “I didn’t recall that, sorry.” (1 RR at 44).

      In addition to low back pain, Plaintiff also complained to the chiropractor

that her left shoulder was sore following the accident. (2 RR, Plaintiff’s Exhibit 1

at 37, attached as Appendix Tab 3). During trial, Plaintiff denied ever having any

prior treatment on her shoulder and testified that she believed her shoulder was

injured in the accident—“that’s when I noticed pain in the shoulder.” (1 RR at 22).

According to medical records, however, Plaintiff reported “a chronic 2-year history

of left shoulder pain.” (2 RR, Plaintiff’s Exhibit 1 at 37, Appendix Tab 3).

      Plaintiff had an MRI performed on her left shoulder and was diagnosed with

a strain and bone contusion. (2 RR, Plaintiff’s Exhibit 1 at 14). During trial,

however, Plaintiff was obviously confused about which shoulder she purportedly

injured in the accident. She testified that it was her right shoulder that was injured

in the accident (1 RR at 28) (“My left one. –excuse me, my right one.”) And




                                           3
when discussing how the driver-side seatbelt bruised her shoulder, she grabbed her

right shoulder. (1 RR at 52).

      After the close of evidence, the trial court conducted a brief charge

conference. (1 RR at 62-67). Plaintiff’s counsel requested an instruction on

circumstantial evidence and the “Eggshell Skull” Rule. (1 RR at 66-67; and CR at

47). The trial court refused both instructions. Id.

      Plaintiff’s counsel nevertheless argued to the jury that they should consider

the circumstantial evidence with regard to Plaintiff’s injury. (1 RR at 67, 74).

Plaintiff’s counsel also argued that if Plaintiff had a pre-existing condition,

Defendant was responsible for aggravating it:

      There is no evidence that this lady suffered the type of injury she has
      had right now any time before this collision. Did she have a herniated
      disk before this collision? Who knows? Who can say. We know one
      thing though. If she did, it wasn’t bothering her. She went to the
      clinic, for upper respiratory infection, some spasms in her back and
      they gave her some pills and she was fine. She was fine…. This is a
      circumstantial case. That’s the best we can do in a case like this
      because there wasn’t an MRI done the moment of this collision. But I
      can tell you what the evidence is, and that is the pain is different. She
      had no problems in the months before this collision except for that one
      visit with the doctor, and now her records are replete with what she is
      going through. The radiating pain, the dulling pain, the numbness.
      Never had that before….

(1 RR at 74-75).

      The trial court then read the charge to the jury, who was asked to determine

what sum of money would provide fair and reasonable compensation for Plaintiff’s


                                          4
injuries, if any “that resulted from the occurrence in question.” (CR at 36). The

jury returned its verdict awarding Plaintiff no damages. (CR at 39). The trial court

entered judgment on the verdict, and this appeal ensued. (CR at 56, 58).

                          SUMMARY OF THE ARGUMENT

      The trial court acted within its discretion in refusing to submit Plaintiff’s

requested instructions to the jury on circumstantial evidence and the Eggshell Skull

rule. The trial court’s decision was not arbitrary or unreasonable and did not result

in an improper verdict.     This Court should therefore affirm the trial court’s

judgment for Defendant.

                              STANDARD OF REVIEW

      A trial court’s submission of jury questions and instructions is reviewed

under an abuse-of-discretion standard.       Gutierrez v. People’s Management of

Texas I, Ltd., 277 S.W.3d 72, 77 (Tex. App.—El Paso 2009, pet. denied). “A trial

court abuses its discretion if it acts in an arbitrary or unreasonable manner without

reference to any guiding rules or principles.” Walker v. Gutierrez, 111 S.W.3d 56,

62 (Tex. 2003).

      A trial court is afforded more discretion when submitting jury instructions

than when submitting jury questions. Wal–Mart Stores, Inc. v. Middleton, 982

S.W.2d 468, 470 (Tex. App.—San Antonio 1998, pet. denied). However, the

discretion afforded during the submission of instructions is not absolute. See


                                         5
TEX.R. CIV. P. 277. Pursuant to Rule 277, a trial court must submit instructions

“as shall be proper to enable the jury to render a verdict.” Id. For an instruction to

be proper, it must: (1) assist the jury, (2) accurately state the law, and (3) find

support in the pleadings and evidence. TEX.R. CIV. P. 277, 278; Middleton, 982

S.W.2d at 470. An instruction that misstates the law as applicable to the facts or

one that misleads the jury is improper. Jackson v. Fontaine’s Clinics, Inc., 499

S.W.2d 87, 90 (Tex. 1973); Owens–Corning Fiberglas Corp. v. Martin, 942

S.W.2d 712, 721–22 (Tex. App.—Dallas 1997, no pet.).

      In reviewing the jury charge, the appellate court considers the parties’

pleadings, the evidence presented at trial, and the charge in its entirety. Gutierrez,

277 S.W.3d at 77. Even if the trial court abuses its discretion, the appellate court

will reverse only where the error in the jury charge is shown to be harmful.

Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 749–50 (Tex. 1980). “‘We

may not reverse unless the error, when viewed in light of the totality of the

circumstances, amounted to such a denial of the rights of the complaining party as

was reasonably calculated [to] and probably did cause rendition of an improper

judgment.’” Gutierrez, 277 S.W.3d at 77 (quoting DeLeon v. Furr’s Supermkts.,

Inc., 31 S.W.3d 297, 300 (Tex. App.—El Paso 2000, no pet.)). Whether the charge

submits the proper controlling issues in the case, in terms of theories of recovery or

defense, is a question of law, which is reviewed de novo. Id.


                                          6
                                    ARGUMENT

I.    The trial court did not abuse its discretion by refusing Plaintiff’s
      requested jury instruction on circumstantial evidence, nor did such
      refusal result in an improper verdict.

      Plaintiff did not cite any case law in Appellant’s Brief to support her

argument that it is an abuse of discretion to refuse to instruct the jury on

circumstantial evidence. That is because the law is well-settled that it is not error

to refuse to instruct the jury on circumstantial evidence, regardless of whether or

not a party’s case depends on circumstantial evidence. The Texas Supreme Court

first analyzed this issue in Johnson v. Zurich General Acc. & Liab. Ins. Co., 205

S.W. 2d 353 (Tex. 1947), where it explained:

             In practically all cases some of the evidence is
             circumstantial. Surely a jury understands that it is its
             function to make reasonable inferences from proven
             facts, and we are unwilling to sanction a rule based upon
             the hypothesis that it does not.

Id. at 354. Two years later, the Texas Supreme Court relied on its Zurich decision

in Larson v. Ellison, 217 S.W.2d 420 (Tex. 1949) (holding that it was also not

error to instruct the jury on circumstantial evidence). The Court explained:

             If the charge on circumstantial evidence had not been
             given, still, as was suggested in the Zurich case, the
             jurors as men of common sense and sound judgment
             would certainly have been at liberty, in arriving at a
             verdict, to make reasonable inferences from proven
             facts.… everyday experience tells us the jury would
             have done that very thing in the absence of the
             instruction.
                                         7
Id. at 467.

      The Zurich rule has been consistently followed in more recent years. See,

e.g., Daniels v. Southwestern Transp., 621 S.W.2d 188, 191 (Tex. App.—

Texarkana 1981, no writ) (holding trial court’s refusal to give jury instruction on

circumstantial evidence was not error); Adams v. Valley Fed. Credit Union, 848

S.W.2d 182, 188 (Tex. App.—Corpus Christi 1992, writ denied) (“We find no

error in the trial court’s determination to exclude the instruction [on circumstantial

evidence].”).

      Here, the trial court clearly did not act without reference to guiding rules or

principles when it denied the instruction on circumstantial evidence; therefore, the

court did not abuse its discretion.

      In any event, the trial court’s omission of the circumstantial evidence

instruction did not result in an improper verdict. First, the jury undoubtedly

understood they were permitted to consider circumstantial evidence. Indeed, in

closing argument, Plaintiff’s counsel repeatedly argued that the jury should

consider the circumstantial evidence in reaching its decision. (1 RR at 67, 74).

      Second, the fact that the jury found for Defendant does not mean that the

jury ignored the circumstantial evidence.      To the contrary, the circumstantial

evidence gave rise to an equally plausible inference that Plaintiff’s injuries did not

result from the accident. In other words, the jury could have reasonably inferred
                                          8
from the circumstantial evidence that Plaintiff had herniated disks prior to the

accident, but the accident was so minor that it did not exacerbate her pre-existing

condition.

      As the Texas Supreme Court has noted, circumstantial evidence often

requires a fact finder to choose among opposing reasonable inferences. Lozano v.

Lozano, 52 S.W.3d 141, 148 (Tex. 2001).         And this choice in turn may be

influenced by the fact finder’s views on credibility. Id. at 148-49. Thus a jury is

entitled to consider the circumstantial evidence, weigh witnesses’ credibility, and

make reasonable inferences from the evidence it chooses to believe. Id. at 149. If

circumstantial evidence will support more than one reasonable inference, it is for

the jury to decide which is more reasonable, subject only to review by the trial

court and the court of appeals to assure that such evidence is factually sufficient.

Id. at 148. Notably, Plaintiff does not challenge the sufficiency of the evidence to

support the jury’s verdict in this case.

      In sum, the trial court did not err in refusing the Plaintiff’s requested

instruction on circumstantial evidence, and omission of the instruction did not

result in an improper verdict.




                                           9
II.   The trial court did not abuse its discretion by refusing Plaintiff’s
      requested jury instruction on the “Eggshell Skull” Rule, nor did such
      refusal result in an improper verdict.

      The trial court also did not abuse its discretion by refusing to instruct the

jury on the following “Eggshell Skull” Rule requested by Plaintiff:

            You are instructed that a defendant takes a plaintiff as
            she finds her. This means that regardless of Debbie
            Patillo’s [sic] physical condition at the time of the
            incident, she is entitled to recover the damages resulting
            from the incident, conditioned as she was at the time of
            the injury. The fact that Debbie Patillo [sic] had physical
            problems at the time of the incident that made her more
            susceptible to injury does not, in itself, relieve the
            Defendant of liability for all damages sustained by
            Debbie Patillo [sic] that were proximately caused by or
            aggravated by the incident.

      As an initial matter, the Eggshell Skull instruction was properly denied

because Plaintiff did not plead, nor testify on direct examination, that she had any

condition prior to the accident that made her more susceptible to injury. (CR at 4;

1RR at 21-22). To the contrary, Plaintiff took the position that she was healthy and

had no back or shoulder problems prior to the accident. Id. Once Plaintiff was

impeached with her medical records on cross-examination, Plaintiff’s counsel

changed course and argued in closing argument that if Plaintiff had a pre-existing

condition, it was aggravated by the accident.

      Second, Plaintiff’s requested jury instruction was properly denied because it

does not comport with Texas Pattern Jury Charge 28.9 for a “Pre-Existing


                                         10
Condition That Is Aggravated,” a copy of which is attached as Appendix Tab 4.

Appellant’s Brief provides no authority supporting the submission of an instruction

on the “Eggshell Skull” Rule or explaining why it should supplant the Texas

Pattern Jury Charges.     Other courts have similarly rejected instructions on the

Eggshell Skull Rule. See, e.g., Carter v. Johnson, No. 04-11-00088-CV, 2012 WL

566089 (Tex. App.—San Antonio 2012, no pet.)(affirming trial court judgment

where instruction on eggshell skull was denied as incorrect statement of the law).

      Finally, the omission of the “Eggshell Skull” instruction did not cause the

rendition of an improper verdict, because the jury was properly instructed to

determine Plaintiff’s damages, if any, that resulted from the accident. (CR at 39).

Plaintiff’s requested instruction was not necessary to assist the jury. In any event,

Plaintiff’s counsel argued in closing that if Plaintiff had a pre-existing condition, it

was asymptomatic before the accident, and that Plaintiff’s damages thus resulted

from the collision. (1 RR at 74-75). Clearly the jury assessed the credibility of the

witnesses and weighed the evidence in determining that the minor accident did not

cause Plaintiff’s damages. Again, Plaintiff does not challenge the sufficiency of

the evidence to support the jury’s verdict. The jury’s verdict was proper.

                             CONCLUSION AND PRAYER

      The trial court did not abuse its discretion in refusing Plaintiff’s requested

jury instructions, nor did such refusal cause the jury to render an improper verdict.


                                          11
Accordingly, Appellee Sylvia Franco respectfully prays that this Court affirm the

trial court’s judgment and award Appellee her costs of court and all such other and

further relief to which she is justly entitled.

                                         Respectfully submitted,

                                         GERMER PLLC


                                         By:
                                           BARBARA L. HACHENBURG
                                           State Bar No. 08667070
                                           KELLI B. SMITH
                                           State Bar No. 24008053
                                           Three Allen Center
                                           333 Clay Street, Suite 4950
                                           Houston, Texas 77002
                                           (713) 650-1313 – Telephone
                                           (713) 739-7420 – Facsimile
                                           bhachenburg@germer.com
                                           ksmith@germer.com

                                         ATTORNEY FOR APPELLEE,
                                         SYLVIA FRANCO




                                            12
                            CERTIFICATE OF SERVICE

      I hereby certify that on this the 21st day of December, 2015, Appellee’s Brief
was filed and served on the following counsel of record in accordance with the
Texas Rules of Appellate Procedure as shown below:

Mr. Scott G. Robelen                               Via e-file and email
State Bar No. 16990045
BAILEY & GALYEN
4131 N. Central Expressway, Suite 860
Dallas, Texas 75204
Phone: (214) 252-9099
Fax:     (214) 520-9941
Email: srobelen@galyen.com



                                      ____________________________________
                                      BARBARA L. HACHENBURG


                          CERTIFICATE OF COMPLIANCE

1.    This brief complies with the type-volume limitation of Texas Rule of
      Appellate Procedure 9.4(i)(2)(B) because this brief contains 2,722 words,
      excluding the parts of the brief exempted by Texas Rule of Appellate
      Procedure 9.4(i)(1).

2.    This brief complies with the typeface and type style requirements of Texas
      Rule of Appellate Procedure 9.4(e) because this brief has been prepared in a
      proportionately spaced typeface using Microsoft Word in 14-point Times
      New Roman font, except for footnotes which are 12-point font.



                                      ____________________________________
                                      BARBARA L. HACHENBURG




                                        13
                                   APPENDIX

Tab 1 – League City Chiropractic and Sports Medicine Records, Patient Condition
       Questionnaire (2 RR, Plaintiff’s Exhibit 1 at p. 53)

Tab 2 – Kelsey-Seybold Clinic Records (2 RR, Defendant’s Exhibit 1 at 2-5)

Tab 3 – League City Chiropractic and Sports Medicine Records (2 RR, Plaintiff’s
       Exhibit 1 at 37)

Tab 4 – Texas Pattern Jury Charge 28.9




                                         14
Tab 1
                                                          PATiENT CONDITION
Patient Name                        ypni-i yh                                                     Date
* Neese list iha top two reasons for coming to (he clinic, List your main reason (chief complaint) under First Condition end, if
applicable, your next complaint under Second Condition. For example, if you have neck and low back pain and neck pain Is worse,
You would list neck pain under first condition and low bacJc pain under second condition.

Et Condition                          h_CIL                                                         Date of Onset2ag_
Please explain in detail how your symptoms began



Rate the severity of your pain from ifieast o 10 (severe pain)                       Are you able to find a py7 of comfort? Y
Does pain Interfere with your:                    Sleep_                       Routine         Recreation          Sex life
Activities or movements that are painful to perform: Sifting /Standing Walking                           BendingLLying Down
Other specific activities that cause pain
How would you describe your pain (circle a • : pp!                        dull stabbing throbbing sh
                                                tiffne       ghtnes     burning tingling numbne
Is pain (circle): constant comes and goes only with certain activities Worse In (circle):
if pain comes and goes, how long (duration) does the pain last?. .,
What, if anything, makes the pain better?
Does pain radiate to your arms or legs? Y                If yes, explain   ,




Does pain wake you up at night?           N if yes, explain
Second Condition                                                                                         Date of Onset
Please explain how your symptoms began
Does pain Interfere with your: Work               Sleep               Dally Routine            Recreation          Sex life
Activities or movements that are painful to perform: Sitting                   Standing_ Walking         Bending Lying Down
Other specific activities that cause pain                           Rate the severity of your pain from 1 to 10
How would you describe your pain (circle ail that apply): deep dull stabbing throbbing shooting aching spasm
                                         stiffness tightness burning tingling numbness annoying slight intense
Is pain (circle): constant comes and goes only with certain activities Worse in (circle): morning afternoon positional
What, if anything, makes the pain better?
Does pain radiate to your arms or legs? Y N If yes, explain
General Information
                     t   o,     •
List all; Medications I/
          Vitamins
         Allergies                  ),)




Have you had chiropractic care befor Y N Who/When
Have you seen another doctor for this condition?a2 N Who/ When                             161E-4 0
List and Describe (Date) any Surgerie            p talizationsl Fractures! P'n   6
                                                                            ,11 inje. ions! Screws or implants




                                                                                                                                   c.3
Tab 2
                LEGA LPARTNERS, L.P.
          1609 SHOAL CREEK BLVD., stc. 310
                   AUSTIN, TX 78701
          TEL: 512/440-8187 FAX: 512/440-8780




                   DEDIDEPATTILLO
                          V.
                    SYLVIA FRANCO-


RECORDS REGARDING: DERIDE PATTILLO


      RECORD TYPE: MEDICAL RECORDS
     RECORDS FROM: KELSEVSEYBOLD CLINIC
                   (Including Records of Dr. Metna Eswaren)
                   896 ► Lakes at 610 Drive
                   Houston, Texas 77054




           Reference: I3ROUS00133
        DELIVER TO Leslie MeCaffety
                      David Black & Associates
                      Four Houston Center, 1221 Lamar, Suite 900
                      Houston, Tetas 77010




         Authorization Used In
       Conjunction With Subpoena




                                                           /CLIENT FA E/   152821
      Keley-Seyboid C laic LAKES  AT 610
                            8900 LAKES AT 610
                                                                                 PATTILLO,DEBORAH
                                                                                 MRN: 07161698
                                          HOUSTON, TX 77054-2525                 DOB: 4111/1984, Sex: F
                                          KSC COMPLETE CHART                     Eno. Date:08/13/10
.   OffteeNti lt:'                                                                 Deborehy,PatfiliP'ORRY 011 16981
Encounter information
                                      Pi9Mdft,              Depeitient            gocotatito#'            P4:010r:'
     8/13/201010:15                   Jaescon W Hite, MD   bm Family Medicine     22308841                CM



Reason for Visit
  URI                                               , h/C asthma and bronchitis, need inhaler refill, symptoms worsening
                                                      x3 months

Diagnoses     .


  AR (allergic rhinitis)
  Sinusitis
  Cough
  WHEEZING



Allergies as of 8/13/2010                                                        Date Reviewed 8/13/2010 Reviewed By:
                                                                                                   Jaesoon W H16)1,100
      Not on File


                                                                                                      Site;
                                                                               intramuscular          Right tipper
                                                                                                      quad.
                                                                                                      gluteuS
        Given By Brenda Kauffman Lvn
      Influenza Virus Vaccine, age 3 defer-Wed Sep 19,
      and up
         Given By:
      Solt-Medrot
                                     2012 3:04 PM

                                     Tue Jan 22, 2013
                                                                Deferral: Parent refused vaccine.
                                                                 1 ml         intramuscular
                                                                                                  .
                                                                                                  Right upper
                                     10:51 AM                                                         quad.
                                                                                                      gluteus
        Given By: Katrina L Blackmon Lvri
      Td- Tetanus Si.Diphtheria 08/13/07
      Vaccine (age 7+ years)
        Given By:
      Toradol                             Thu Nov15, 2012        30 mg         Intraniuscular         Right upper
                                          1:55 PM                                                     quad.
                                                                                                      gluteus
        Given By: Irene V Hardy Lvn

    Medications the Patient Reported Takin

   Albuterol 90 MCGIACT IN _MRS                                                                                 11/39/2010

     Sig: as directed  •
   (Taking/Discontinued)

     Class: Historical Ivied
     Route: inhalation
Printed on 7/8/2013 10:02 AM                                                                                    Page 1 of 823


                                                                                                                       2
160 Kelse ► -Seybold Clinic         LAKES AT 610
                                    8900 LAKES AT 610
                                                                PATIILLO,DEBORAH J
                                                                MRN: 07161698
                                     HOUSTON, TX 77054-2525     DOB: 4/11/1964, Sex: F
                                     KSC COMPLETE CHART         Enc. Date:08/13/10
Medications the Patient Reported Taking (continued)
                     '                                              ..Start'l" "         End
  Albuterol Sulfate 108 (90 BASE) MCG/ACT       1 Inhaler   1        8/13/2010           6/22/2011
  IN AERS (Taking/Discontinued)
    Sig: 2 puffs q 4-6 hours pm for wheezing
    Class: E-Prescribe
    Route: Inhalation
  Aiprazolarn 0.25 MG OR TABS                  30 Tab       0        8/13(2010           6/22/2011
  (Taking/Discontinued)
    Sig: 1 po bid pm for panic attack
    Route: oral
  Amoxicillin-Pot Clavulanate 875-125 MG OR 28 Tab          0        8/13/2010           11/30/2010
  TABS (Taking/Discontinued)
    Sig: 1 TABLET EVERY 12 HOURS
    Class: E-Prescribe
    Route: oral
  Benzonatate 200 MG OR CAPS              60 Cap            0        8/13/2010           11/30/2010
  (Taking/Discontinued)
    Sig: 1 CAPSULE 3 TIMES DAILY AS NEEDED
    Class: E-Prescribe
    Route: oral
   Diclofenac Sodium 75 MG OR TBEC             60 Tab       0        8/13/2010           12/6/2010
   (Taking/Discontinued)
    Sig: 1 TABLET TWICE DAILY
    Class: E-Prescribe
    Route: oral
   Fexofenadine HCI 180 MG OR TABS             30 Tab       5        8/13/2010           11/30/2010
   (Taking/Discontinued)
     *Sig: 1 TABLET DAILY
    Class: E-Prescribe
    Route: oral
   Fluticasone-Salmeterol (ADVAIR INSKUS)                                                11/30/2010
   250.50 MCG/DOSE IN AEPB
   (Taking/Discontinued)
    Sig: 1 INHALATION EVERY 12 HOURS
    Class: Historical Med
    Route: inhalation
   Levonorgest-Eth Estrad 91-Day                                                         6/22/2011
   (SEASONIQUE) 0.15-0.03 &0.01 MG OR
   TABS (Taking/Discontinued)
    Sig: 1 TABLET DAILY
    Class: Historical Med
    Route: oral
   Methocarbamol 750 MG OR TABS                90 Tab       0        8/13/2010           11/30/2010
   (Taking/Discontinued)
     Sig: 1 po qid pm for pain/spasm
     Class: E-Prescribe
     Route: oral
   Multiple Vitamin (MULTIVITAMIN OR)
   (Taking)
    Sig: daily
    Class: 'Historical Med
    Route: oral

Printed on 7/8/201310:02 AM                                                               Page 2 of 823



                                                                                                     3
   Kelsey-S.eybold Clinic               LAKES AT 610
                                        8900 LAKES AT 610
                                                                                      PATTILLO,DEBORAH J
                                                                                      MRN: 07161698
                                        HOUSTON, TX 77054-2525                        DOB: 4/1111964, Sex: F
                                        KSC COMPLETE CHART                            Enc. Date:08/13/10

Medication Comments
    Medication noted and Reviewed with Patient on 06/24/2013 Wanetta R Chopane




Meds Comments as of 8113/2010
    Reviewed meds with pt


Discontinued Medications
                                                       Reason'fOr
  Alprazolam 1 MG OR TABS                              Error
  Amoxicillin 500 MG OR TABS                           Treatment Completed
  Alprazolam 1 MG OR TABS                              Error
  Alprazolam 0.25 MG OR TABS                               Reorder

Ordered Medications
                                                       •       !'''
  Amoxicillin-Pot Clavulanate 875-125 MG OR TABS                      28 Tab   0              8/13/2010          11/30/2010
  (Discontinued)
    Sig - Route: 1 TABLET EVERY 12 HOURS - oral
    Class: E-Prescribe
  Fexofenadine HC1180 MG OR TABS (Discontinued)                       30 Tab   5              8/13/2010          11/30/2010
    Sig - Route: 1 TABLET DAILY - oral
    Class: E-Prescribe
  Albuterol Sulfate 108 (90 BASE) MCGIACT IN AERS             1 Inhaler        1              8/13/2010          6/22/2011
  (Discontinued)
    Sig - Route: 2 puffs q 4-6 hours pm for wheezing - inhalation
    Class: E-Prescribe
   Diclafenac Sodium 75 MG OR TBEC (Discontinued)                     60 Tab   0              8/13/2010          12/6/2010
    Sig - Route: 1 TABLET TWICE DAILY - oral
    Class: E-Prescribe
   Methocarbamol 750 MG OR TABS (Discontinued)                        90 Tab   0              8/13/2010          11/30/2010
    Sig - Route: 1 po aid pm for pain/spasm - oral
    Class: E-Prescribe
   Benzonatate 200 MG OR CAPS (Discontinued)     . 60 Cap                      0              8/13/2010          11/30/2010
    Sig - Route: 1 CAPSULE 3 TIMES DAILY AS NEEDED - oral
    Class: E-Prescribe
   Alprazolam 0.25 MG OR TABS (Discontinued)                          30 Tab   0               8/13/2010         6/22/2011
    Sig - Route: 1 po bid pm for panic attack - oral


All Results
CHEST PA LATERAL [278139321                                                        Resulted: 08/13/10 1108, Result Status: Final
                                                                                                                           result

Printed on 7/8/201310:02 AM                                                                                      Page 3 of 823



                                                                                                                         4
   Keisey-Seybold            a      ic LAKES AT 010
                                        ,8900 LAKES AT 610
                                                                                  PATTILLOPESORAH j
                                                                                  MRN: 07161698
                                         HOUSTON, TX 77054-2525                   DOE: 4/1111084, Sex: F
                                         KSC COMPLETE CHART                       Enc. Date:08113/10

All Results (continued)
CHEST PA LATERAL [27813932] (continued)                                      Resulted', 08113/10 1108, Result Status: Anal
                                                                                                                     result
  Resulted by::    Patrick M Conoley, MD, FAOR                    Performed:     08113110'1059 -08/13110 1106
  Resulting Lab:   RADIOLOGY
  Narrative:       History: Chronic cough dyspnea
                   images: 2 views of the Chest
                   Findings:
                   The lungs are hyperinfiated.
                   No active cardiopulmonary disease is seen
                   There are old, healed fractures of left sided ribs.



Vitals Last Recorded
     —




   Bp         putie.
                  TernP(Src)
   108/70     84             99.7 *F (37.6 °C)       20           5' 3" (   rn)           150 lb 3.2 oz (66.13 kg)
                             (Oral)




  :Vitals History Recorded



Jaesoon W Hite, MD Physician 8/1612010 8:06 AM Signed
 URI
This is a new problem. Episode onset 2 weeks ago. The problem has been gradually worsening. The
maximum temperature recorded prior to her anivai was 100 -100.8 F. The fever has been present for 1 to 2
daYs. Associated symptoms include congesijon, coughing, rhinorrhea, sinus pain, sneezing, a sore throat and
wheezing. Pertinent negatives include no abdominal pain, chest pain, clysuria, ear pain, headaches, nausea,
plugged ear sensation, rash, swollen glands or vomiting. Treatments tried: Just finished amoxidllin, albuterol,
  ac a n
This is a new problem. The current episode started in the past 7 days. The problem occurs constantly. The
problem is unchanged. The pain is present in the lumbar spine. The pain does not radiate. The pain is at a
severity of 7/10, The symptoms are aggravated by bending and twisting. Pertinent negatives include no
abdominal pain, bladder incontinence, bowel incontinence, chest pain, dysuria, fever, headaches, leg pain,
numbness, paresis, paresthesias, pelvic pain, perianal numbness, tingling, weakness or weight loss. She has
tried NSAIDs for the symptoms.


NEW PATIENT:


She has been on xanax daily for anxiety attack But she did not on any other antiartilety med.
She reports that the has been on xanax 1 mg I daily but check her recent xanax refill showed from her
previous doctor was 0.25 mg 1-2 tabs pm


Printed on 718/2013 10:02 AM                                                                                 Page 4 of.823



                                                                                                                     5
Tab 3
Ite
                                                                             1200 East Main Street
             ague City Chiropractic                                          League City, TX 77573
             and Sports Medicine                                             Phone: 281-332-3428
                                                                             Fax:   281-332-7593

January 28, 2011

Patient
Deborah Pattillo — Subsequent Report

History
The patient is in for re-exam of her left shoulder. She states she had a chronic 2-year history of
left shoulder pain that was exacerbated by the motor vehicle collision on 12/2712010. The
patient has been noticing that left shoulder pain has continued to get gradually worse within the
last few visits. Ms. Patillo notices that her left shoulder feels "loose" and she is able to move her
shoulder with her right hand.

Exam
DTRs and motor reflexes are within normal limits. Active shoulder range of motion; she has
pain in forward flexion throughout the entire motion. She has restriction in internal and external
passive shoulder range of motion. Hypertonicity was felt in the infraspinatus and supraspinatus
with moderate tenderness to palpation, and she had hypertonicity also in the subscapularis and
teres minor with mild tenderness to palpation. There is some laxity in P-A capsule challenge
with shoulder in neutral position. All other shoulder orthopedic tests were negative and within
normal limits.

Plan
Begin ultrasound and interferential therapy to the left shoulder for pain control. Also begin soft
tissue myofascial technique to the above-mentioned muscles to reduce adhesions in the muscle
and help with inflammation. We will begin a shoulder rehabilitation program with the patient
once pain has reached 50% reduction to strengthen surrounding muscles. The patient will
continue to be treated 2 x a week. The shoulder will be monitored for approximately 3 weeks
and then be re-evaluated.

Brian Sansalone, D.C.
Tab 4
PERSONAL INJURY DAMAGES                                               PJC 28.9


PJC 28.9         Personal Injury Damages—Exclusionary Instruction for
                 Preexisting Condition That Is Aggravated

   Do not include any amount for any condition existing before the occurrence
in question, except to the extent, if any, that such other condition was aggra-
vated by any injuries that resulted from the occurrence in question.
