           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         October 11, 2007

                                     No. 06-41644                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


Rogelio Rodriguez; Elizabeth Rodriguez

                                                  Plaintiffs-Appellees
v.

James Arthur Larson

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                   (04-CV-137)


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       This appeal involves a negligence suit for personal injuries arising out of
a vehicular collision between an 18-wheeler driven by Plaintiff-Appellee Rogelio
Rodriguez (“Rodriguez”) and a pick-up truck driven by Defendant-Appellant,
James Arthur Larson (“Larson”).
       On January 16, 2003, Larson and Rodriguez were both traveling east on
Business U.S. 77 in Cameron County, Texas. As Rodriguez passed Larson,


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                        No. 06-41644

Larson suddenly changed lanes from the right-hand lane into the left-hand lane,
colliding with Rodriguez’s truck. Both drivers were injured in the accident and
rushed to local hospitals.
      Rodriguez brought suit against Larson in state court, and Larson removed
the case to the Southern District of Texas. The parties consented to trial of the
case before a magistrate judge. Larson moved for a directed verdict before
submission of the case to the jury, and the magistrate judge denied this motion.
The jury found in favor of the Plaintiffs-Appellees and awarded Rodriguez past
damages, as well as future damages in the amount of $364,000. The award of
future damages included $109,000 for medical expenses. After judgment was
rendered, Larson filed a renewed motion for judgment as a matter of law and an
alternative motion for new trial, challenging the jury’s award of future medical
care expenses. The magistrate judge denied these motions.
      Larson now appeals the trial court’s denial of these two motions, arguing
that the evidence presented at trial is legally and factually insufficient to
support the jury’s award of $109,000 for future medical expenses.1 Specifically,
Larson challenges the jury’s award of $90,400 for future neck and back
surgeries.
      We review the trial court's denial of a motion for judgment as a matter of
law de novo. Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 885
(5th Cir. 2004). Under federal standards, judgment as a matter of law is
appropriate where “a party has been fully heard on an issue and there is no
legally sufficient evidentiary basis for a reasonable jury to find for the party on
that issue.” Id. “We apply federal standards of review to assess ‘the sufficiency
or insufficiency of the evidence in relation to the verdict,’ but in doing so we refer
to state law for 'the kind of evidence that must be produced to support a



      1
          It is undisputed that Larson has preserved this point of error.

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verdict.’” Id. (citing Ayres v. Sears, Roebuck & Co., 789 F.2d 1173, 1175 (5th Cir.
1986)). Therefore, in this case, we will look to Texas law to determine whether
Rodriguez presented sufficient evidence to avoid judgment as a matter of law.
       Under Texas’s “reasonable probability” rule, to sustain an award of future
medical expenses, the plaintiff must present evidence to establish that in all
reasonable probability (1) medical expenses will be incurred in the future, and
(2) what the reasonable cost of that care will be. See, e.g., Rosenboom Mach. &
Tool, Inc. v. Machala, 995 S.W.2d 817, 828 (Tex. App. 1999); Whatley v.
Armstrong World Indus., 861 F.2d 837, 843 (1988). Our inquiry is whether the
evidence points so strongly and overwhelmingly in favor of Larson’s contention
that a reasonable jury could not have reached an opposing verdict. Whatley, 861
F.2d at 843.
       In support of his claim for future medical damages, Rodriguez offered the
testimony of three doctors: Dr. D.S. Gill, Dr. Jorge Tijimes, and Dr. Herman
Keillor.2 Dr. Gill is an orthopedist who treated Rodriguez for over two years
following the accident. At trial, Dr. Gill testified that Rodriguez had a herniated
disk that had worsened over time. Dr. Gill also testified that he believed that
Rodriguez would need additional treatment, including diagnostic tests and
spinal surgery. Dr. Gill testified that he expected the approximate cost of
Rodriguez’s future medical care would total $109,000, including surgery, and
that this total was fair and reasonable. Rodriguez also offered into evidence the
videotaped deposition of Dr. Tijimes, an orthopaedic surgeon. In that deposition,
Tijimes testified that Rodriguez had a disc protrusion that would likely cause
him to suffer pain throughout his life. Dr. Tijimes also testified that, based on
reasonable medical probability, Rodriguez would require additional medical

       2
        Larson also presented for review the issue of whether expert testimony is required to
establish a plaintiff’s need for future medical care under the “reasonable probability” rule of
recovery. We need not decide this issue because the Court finds that Rodriguez did offer and
rely upon expert testimony at trial.

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treatment in the future, including medications, diagnostic testing, doctor’s visits,
and a discogram. In regards to surgery, Dr. Tijime said that Rodriguez’s pain
“can be corrected with medications more than surgically,” and that “he has not
rendered an opinion that this patient needs surgery.” Rodriguez also offered
into evidence the medical records from his consultation with Dr. Keillor, an
orthopaedic surgeon. Dr. Keillor diagnosed a cervical or lumbar sprain and
recommended a neurological consult, but did not express an opinion as to the
necessity of surgery.
       Larson argues that the evidence was insufficient to support a finding that
in all reasonable probability Rodriguez will require surgery because neither Dr.
Tijime nor Dr. Keillor testified that it is likely that Rodriguez will require
surgery. Further, Larson argues that Dr. Gill’s testimony as to surgery was not
sufficient because Dr. Gill was not currently a practicing orthopedic surgeon and
because Dr. Gill testified that an orthopedic surgeon would have to agree that
surgery was necessary before performing the surgery. Finally, Larson argues
that the award of future medical expenses is improper because it is five times
the amount awarded for past medical costs.
      Based on the evidence presented at trial, and in light of the Texas
“reasonable probability” standard, we cannot say that the jury had no basis upon
which to find a reasonable medical probability that Rodriguez would require
surgery in the future. The jury was presented with testimony by Dr. Gill that
it was his unequivocal belief that Rodriguez would require surgery in the future.
The other evidence presented by Plaintiff, the testimony of Dr. Tijime and the
report of Dr. Keillor, also established that it was reasonably probable that
Rodriguez would need medical care in the future. Further, Larson did not
present any testimony at trial that directly contradicted Gill’s conclusion that
Rodriguez would require surgery in the future. While neither Tijime nor Keillor
recommended surgery, they did not at any point testify unequivocally that


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surgery would not be needed in the future. Tijime’s testimony established only
that he wasn’t currently recommending surgery, and Keillor’s report does not
discuss surgery at all. Further, Dr. Gill was the treating physician, and he did
specifically testify as to the necessity of the surgery. See City of San Antonio v.
Esparza, No. 04-04-00631, 2005 Tex. App. LEXIS 10755, at *11 (Tex. App. 2005)
(affirming jury verdict where treating physician testified as to the necessity of
future knee surgery). Based on the testimony presented by Rodriguez, and the
fact that Larson did not produce any evidence to the contrary, we conclude that
reasonable people could have found that there was a “reasonable probability”
that Rodriguez would require surgery in the future. The imbalance between the
jury’s small award of past medical expenses and large award of future medical
expenses does not justify disturbing the jury’s finding. While the cost of past
medical expenses may help a jury in determining the cost of future medical care,
see, e.g., Pilgrim’s Pride Corp. v. Smoak, 134 S.W. 3d 880, 905 (Tex. App. 2004),
the Court could find no authority for Larson’s contention that a low award for
past medical expenses justifies disturbing a jury’s larger award for future
medical expenses. Reviewing all of the evidence presented, and, in light of the
Texas “reasonable probability” standard, Rodriguez has provided sufficient
evidence of future medical care and the costs of such medical care for affirmance
on appeal. See, e.g., H.E. Butt Grocery Store v. Trevino, No. 14-98-0085, 1999
Tex. App. LEXIS 3835, at *10-11 (Tex. App. 1999) (affirming jury’s award of
future medical damages for back surgery where treating physicial testified as to
the necessity of future back surgery and plaintiff introduced evidence of past
medical expenses).
      Larson also argues that the magistrate judge erred in denying his motion
for a new trial. A trial judge can grant a motion for a new trial if, after weighing
the evidence, he believes the verdict is contrary to the “great weight of the
evidence.” See Whitehead v. Food Max of Miss., Inc., 163 F.3d 269 (5th Cir.

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1998). Appellate review of the trial court's action is limited to consideration of
whether the lower court abused its broad discretion. Whitehead, 163 F.3d at
269. “The denial of a motion for a new trial will be affirmed unless, on appeal,
the party that was the movant in district court makes a ‘clear showing’ of ‘an
absolute absence of evidence to support the jury's verdict,’ thus indicating that
the trial court had abused its discretion in refusing to find the jury's verdict
‘contrary to the great weight of the evidence’.” Whitehead, 163 F.3d at 269. The
facts discussed above provide a reasonable evidentiary basis for the jury's
verdict. The district court did not abuse its discretion in denying the motion for
a new trial.


For the foregoing reasons, the judgment is
AFFIRMED.




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