Protecting a jury verdict
RESPONSE TO DEFENDANT’S MOTION TO DISREGARD
AND MOTION NOV
I
Lost Earning Capacity
The disabilities, pain and limitations are covered in some detail in Plaintiff’s brief in support of judgment. Certainly Plaintiff’s doctor thought he was significantly disabled. When asked if Plaintiff would suffer “pain and some level of disability for the rest of his life”, he answered, “Absolutely. Absolutely. He will never be normal.”
Neither this opinion, nor any other evidence concerning disability was challenged factually or legally in the deposition or trial. See Tex.R.APP.P. 33.1(a); TEX.R.EVID. 103(a)(1); Pilgrim’s Pride Corp v. Smoak 134 S.W.3d 880, 896-7 (Tex.App.—Amarillo 2000, pet. denied). In fact, the Court in Pilgrim’s stated:
“Proof of loss of earning capacity is always uncertain and must be left largely to the discretion of the jury. McIver v. Gloria, 140 Tex. 566, 169 S.W. 710, 712(1943) Earning capacity has been defined as the ‘ability and fitness to work in gainful employment for any type of remuneration, including salary, commissions, and other benefits, whether or not the person is actually employed.’ It does not necessarily mean actual wages, income, or other benefits received during the period inquired about. Factors such as stamina, efficiency, ability to work with pain, and the weakness and degenerative changes which naturally result from an injury and from long-suffered pain are legitimate considerations in determining whether a person has experienced an impairment in future earning capacity.”
Pilgram’s, 134 S.W.3 at 899 (citations omitted).
Plaintiff served with distinction in the Air Force for four years. He was weighing the option of re-enlisting or joining the Tyler Fire Department. He successfully passed the entrance exam for the Fire Department. He testified, without objection, as to what his potential take-home pay would be at these occupations and what he was capable of earning now. Texas courts have left the decision as to the nature and extent of disability to juries. In the Pilgrim’s case future earning disparity was based on past income from a welding job the plaintiff had for a few weeks and not the lower income of his most recent employment.
II
Past Medical Expenses
The language in Sec. 41.0105 of the Texas Civil Practice & Remedies Code concerning the appropriate measure of past medical expenses is ambiguous. Plaintiff provided the court at pretrial a legislative history which clearly indicates that the legislature intended for the injured party to receive damages of the actual bill for past medical and not the negotiated amount paid by a collateral source.
The Court of Appeals in Bexar County ruled in a 2-1 decision that the legislation allowed for collateral source to be considered, so it determined the lesser amount paid by the insurance company to be the proper measure of past medical damages. 2007 TXCA4 04-06-00345-05167; Mills v. Fletcher, 229 S.W.3d 765 (Tex. App.—San Antonio 2007).
The legislature attempted to cure this misinterpretation by near unanimous passage of legislation indicating that collateral source payments or discounts should not be the measure of past medical damages. Even though the governor vetoed the bill, it clearly revealed the original legislative intent.
Recently, the Court of Appeals in Amarillo ruled unanimously that it is error and a violation of the collateral source rule for the jury to consider payments or discounts created by insurance negotiations. Gore v. Faye, 2008 Tex. App. LIXIS 252 (Tex.App.—Amarillo 2008)
III
Response to Motion NOV Based on Lack of Liability Evidence
Defendant argues to the Court that the accident report that came into evidence without objection was insufficient to establish a case for liability. The most important response to this argument is there is no contest that:
1. Defendant was controlled by a stop sign.
2. Plaintiff was not controlled by a stop sign and in the roadway Defendant crossed, (therefore, had the right of way).
3. Defendant pulled in front of Plaintiff, causing the accident.
The accident report designated the Defendant as the party at fault in causing the wreck. However, the jury verdict, (supported by overwhelming evidence of photographs, witness testimony, testimony of the parties etc.), clearly stands with or without the accident report.
Defendant’s argument also fails because Robinson issues were not raised or preserved before or during trial concerning the qualifications or methodology of the investigating officer who authored the accident report. The point raised by the Defendant is not preserved. Pilgirm’s, 134 S.W. at 890.
Accident reports are routinely admitted into evidence to support liability findings. Texas Rules of Evidence 803(8); McRae v. Echols, 8 S.W.3d 797 (Tex. Civ. App.-- Waco 2000, pet. denied); Ter-Vartanyan v. R&R Freight, Inc. 111 S.W.3d 779 (Tex. App.--Dallas 2003, pet. denied). The investigating officer’s testimony was not based on scientific or specialized knowledge as contemplated in TEX.R.EVID. 702. Instead, his opinion was based on his observation of the accident scene, interviews with witnesses and his practical experience as an investigating officer. This is clearly admissible and probative. Pilgrim’s 134 S.W.3d at 893.
Respectfully Submitted,
Blake Bailey
http://www.bailey-law.com/lawyer-attorney-1215482.html
