
    Troy HORTON and Carolyn Horton, Appellants, v. DENNY’S INC., Appellee.
    No. 12-02-00271-CV.
    Court of Appeals of Texas, Tyler.
    Aug. 29, 2003.
    
      Todd A. Smith, Bedford, for appellant.
    Robert J. Davis, Matthews Carlton Stein Shiels Pearce Dunn <& Knott, Dallas, for appellee.
    Panel consisted of GRIFFITH, J., DEVASTO, J., and BILL BASS, Retired Justice, Twelfth Court of Appeals, TYLER, sitting by assignment.
   OPINION

BILL BASS, Justice.

Appellants Troy and Carolyn Horton sued Appellee Denny’s Inc. for damages resulting when Troy Horton slipped and fell on ice in front of Denny’s Restaurant in North Richland Hills. The jury found in favor of the Hortons, but awarded only $1,000.00 in past damages. In two issues, the Hortons challenge the jury’s damage finding and the trial court’s failure to grant a new trial. We reverse and remand.

Background

On December 23, 1998, Troy Horton (“Horton”) slipped on a patch of ice on the sidewalk while walking with his wife Carolyn from their car to Denny’s front door. In obvious pain and unable to walk, Horton was taken to Columbia North Hills Hospital where x-rays revealed “at least a trimalleolar ankle fracture.” A stirrup splint was applied and he was instructed to keep his weight off of the ankle, to keep that leg elevated, and to see a doctor.

On December 28,1998, Horton first saw Dr. Don Johnston, a board-certified orthopedic surgeon who would treat him over the next six months. At Horton’s first visit, Dr. Johnston found a “slightly displaced fracture of the distal tibia and fibula.” Dr. Johnston attempted to treat the injury conservatively with a closed reduction and a short leg cast. When Horton returned a week later, new x-rays showed greater displacement between the fracture fragments. Dr. Johnston decided an open reduction of the break was necessary and scheduled Horton for surgery. However, on the evening before the scheduled surgery, Horton complained of chest pains and the surgery was postponed. His doctors treated Horton with anticoagulants fearing he suffered from a pulmonary embolism secondary to the recent immobilization caused by the fracture. Both Dr. Johnston and Horton thought that, under the circumstances, surgery was too dangerous, and Dr. Johnston proceeded with conservative treatment including physical therapy. Horton went to thirteen physical therapy sessions between March 5, 1999 and April 2, 1999 when he quit going to therapy. Dr. Johnston last saw Horton on July 20, 1999, when he noted “again, no further evidence of healing. He is still walking with a cane.” At that time, he recommended an open reduction with a bone graft, although he acknowledged that surgery for Horton would involve enhanced risk because of his blood clot problems. Dr. Johnston never saw Horton again during the nearly three years before trial.

Troy Horton sought to recover past and future damages resulting from his fall, and Carolyn Horton sought to recover for loss of consortium. The jury apportioned the liability equally between Troy Horton and Denny’s and although the Hortons introduced evidence of $16,587.90 in medical expenses, the jury awarded Troy Horton only $1,000.00 for past damages, including physical pain and mental anguish, disfigurement, physical impairment, medical care, and loss of earning capacity. The jury also found that Troy Horton was enti-tied to nothing for future damages, and that Carolyn Horton should recover nothing on her claim of loss of consortium.

Damage Award

In the Hortons’ first issue, they complain that the jury’s finding of only $1,000.00 for all past damages is against the great weight and preponderance of the evidence. The jury award of $1,000.00 in total damages included damages for past medical expenses, past loss of earning capacity, and past physical pain, mental anguish, impairment, and disfigurement.

The Hortons argue that when the jury finds a causal connection between the defendant’s negligence and an objectively demonstrable injury to the plaintiff, the jury-must award a reasonable amount for every element of damage resulting from the injury. See Hammett v. Zimmerman, 804 S.W.2d 663, 665 (Tex.App.-Fort Worth 1991, no writ). The Hortons also point out that the fracture of Horton’s ankle was proyen by objective and incontrovertible evidence, an injury the jury attributed to Denny’s negligence. The medical expenses for the ambulance trip to the emergency room and for emergency room treatment on the day of the injury totaled $1,180.75, an amount greater than that awarded by the jury for all damages. Dr. Johnston’s bill was $1,035.00 for treatment between December 28, 1998 and July 20, 1999. Thirteen sessions with the therapist in March of 1999 cost $2,446.50. They argue that at least $4,717.25 in medical bills were related exclusively to the ankle fracture, all shown to be reasonable and necessary through Dr. Johnston’s testimony and medical billing affidavits. At trial, Denny’s vigorously questioned the relationship between Horton’s pulmonary embolism and his ankle injury. But even disregarding the balance of the more than $16,587.90 in medical expenses claimed by the Hortons, the medical expenses related directly to the ankle break were nearly five times greater than the jury’s finding for all elements of damage. In the Hor-tons’ view, this ineontrovertibly demonstrates the inadequacy of the jury’s damage finding.

Denny’s Inc. argues that juries have broad discretion in determining the amount of medical damages. “The jury,” they argue, “had the ultimate right to award only the sum of money they believed accurately reflected the damages sustained by the plaintiffs.” Denny’s contends the jury had every reason to distrust the Hortons’ proof, especially that related to medical expenses. The jury saw Dr. Johnston admit that he had testified that the $16,587.90 in medical expenses claimed by the Hortons were all reasonable and necessary although he had read only the cover sheet and was therefore totally unfamiliar with the records. On cross-examination it was discovered that the records were riddled with charges clearly unrelated to the treatment of a broken ankle. One of the doctor’s records contained numerous references to matters having not even an indirect connection with the accident at Denny’s, including “stress test,” “varicose veins,” “diabetes,” “acute sinusitis,” “vertigo,” and “prostate gland test.” Denny’s points out that medical records affidavits filed under Tex. Civ. Pi?ac. & Rem.Code Ann. § 18.001 are sufficient evidence to support a finding of fact, but they are not binding on the jury and do not establish the amount of damages as a matter of law. See Beauchamp v. Hambrick, 901 S.W.2d 747, 749 (Tex.App.-Eastland 1995, no writ). In Denny’s view, the relationship of the majority of Horton’s medical expenses to his ankle injury had been so discredited that it was well within the jury’s province to ignore them all.

Standard of Review

The Hortons challenge a jury finding upon which they have the burden of proof, and they must therefore show that the adverse finding is against the great weight and preponderance of the evidence. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001).

In reviewing a challenge that the jury finding is against the great weight and preponderance of the evidence, the court of appeals must first examine the record to determine if there is some evidence to support the finding; if such is the case, then the court of appeals must determine, in light of the entire record, whether the finding is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust, or whether the great preponderance of the evidence supports its nonexistence. Whether the great weight challenge is to a finding or a nonfinding, a court of appeals may reverse and remand a case for a new trial only when it concludes that the finding or nonfinding is against the great weight and preponderance of the evidence.

W. Wendell Hall, Standards of Review in Texas, 34 St. MaRy’s L.J. 1, 173 (2002). A court of appeals may not reverse because it concludes that “the evidence preponderates toward an affirmative answer” but only when the great weight of evidence supports an affirmative answer. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988).

The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Trinity Indus., Inc. v. Ashland, Inc., 53 S.W.3d 852, 862 (Tex.App.-Austin 2001, pet. denied). The general rule is that it is entitled to accept or reject any or all testimony. Id. But a jury may not ignore undisputed facts and arbitrarily fix an amount of damages which is neither fair nor just. See Lowery v. Berry, 153 Tex. 411, 269 S.W.2d 795, 796-97 (1954); Vanderlinden v. USAA, 885 S.W.2d 239, 242 (Tex.App.-Texarkana 1994, writ denied). Uncontradicted testimony of expert witnesses must be taken as true insofar as it establishes facts; however, opinions deduced from those facts are not binding on the jury. See Gregory v. Texas Employers Ins. Ass’n, 530 S.W.2d 105, 107 (Tex.1975).

Applicable Law

It is ordinarily the prerogative of the jury to set damages. Thomas v. Oil & Gas Bldg., Inc., 582 S.W.2d 873, 881 (Tex.Civ.App.-Corpus Christi 1979, writ ref'd n.r.e.). But where the evidence of injury and damages is more objective than subjective and the fact of injury is acknowledged by the jury by a finding of some damages attributable to the defendant, the jury’s failure to award recovery for other elements of damage has been regarded as against the great weight and preponderance of the evidence. See, e.g., Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801, 804-05 (Tex.App.-Dallas 1988, no writ); Hammett, 804 S.W.2d at 664-66. This is not the case, however, “when the indicia of injury and damages are more subjective than objective.” Blizzard, 756 S.W.2d at 805. When the fact of injury and resulting damages chiefly depend upon subjective evidence, appellate courts are reluctant to hold the non-findings as against the great weight and preponderance of the evidence. Id.

Although most of the cases illustrating the principle involve a failure to find damages for pain and suffering despite a finding of injury, the same principle has been applied by appellate courts to overturn inadequate verdicts for medical expenses. In Hill v. Clayton, 827 S.W.2d 570 (Tex.App.-Corpus Christi 1992, no writ), Clayton shot Hill with buckshot. Hill’s injury was described in emergency room records as follows: “there were three entrance wounds and two exit wounds, shell and bone fragments in the foot, and broken bones in the foot.” Hill later underwent two operations and a skin graft. The court of appeals held that the jury’s award of $2,500.00 was clearly wrong and manifestly unjust when the proof established $8,939.45 in medical expenses. Id. at 574.

In Downing v. Uniroyal, Inc., 451 S.W.2d 279 (Tex.Civ.App.-Dallas 1970, no writ), Downing incurred about $600.00 in medical expenses, but the jury awarded a total of $12.00 for medical, hospital, and doctor bills. Downing’s injury was evidenced by muscle spasm, an “objective visible symptom.” Id. at 283. The Dallas court found the damages inadequate and reversed and remanded the cause for a new trial. Id. at 284.

In Pate v. Tellepsen Const. Co., 596 S.W.2d 548 (Tex.Civ.App.-Houston [1st Dist.] 1980, writ refd n.r.e.), a fluorescent light fell from the ceiling onto Pate where he was working at his desk. After three year's of neck pain, he underwent a lami-nectomy which also revealed a severe preexisting arthritic condition. Both doctors who testified said the pre-existing arthritis was aggravated by the injury. The jury found $10,000.00 damages for past pain and mental anguish, but found no damages for past medical expenses. The court of appeals held the jury was not at liberty to ignore $1,239.00 in charges for surgery and postoperative care attributable to the accident. Id. at 551.

In each of these cases, the plaintiffs injury was shown by objective symptoms such as fracture, laceration or muscle spasm. See McGuffin v. Terrell, 732 S.W.2d 425, 427 (Tex.App.-Fort Worth 1987, no writ).

The cases cited by Denny’s illustrate the same objective — subjective dichotomy. In McGuffin, the jury answered all liability issues for McGuffin but, except for $50.00 for past medical expenses, awarded her no damages for her injuries. There was proof that she incurred $2,000.00 in reasonable medical expenses. None of the several examinations she was given by three doctors revealed any objective evidence of injury, and the court of appeals held that the verdict was not against the great weight and preponderance of the evidence. Id. at 429. In Biggs v. GSC Enter., Inc., 8 S.W.3d 765 (Tex.App.-Fort Worth 1999, no pet.), the jury awarded Biggs $30,000.00 for past medical expenses and lost earning capacity, but nothing for physical pain and mental anguish or physical impairment. There was evidence that Biggs’ low back pain was primarily related to a previous on the job injury. Although Biggs finally underwent low back surgery for a herniated lumbar disc, the only medical expert to testify could not say whether the herniated disc predated the accident or occurred af-terwards. A CT scan performed three weeks after the accident did not show a herniated disc. The court observed that evidence of Biggs’ back pain was based almost solely on his own personal reports of pain, and declined to overturn the jury’s findings. Id. at 769.

In Crow v. Burnett, 951 S.W.2d 894 (Tex.App.-Waco 1997, pet. denied), although the jury found that Burnett caused the collision, they awarded Crow no damages. Crow had medical bills in excess of $40,000.00. The court noted that most of the evidence that Crow’s injuries resulted from the collision with Burnett was subjective. The doctor who testified conceded that the injuries he observed could have existed before the collision, and his information on causation was based solely on what Crow had told him. Therefore, the court concluded that the jury’s no-damages finding was supported by probative evidence.

In Barrajas v. VIA Metro. Transit Auth., 945 S.W.2d 207 (Tex.App.-San Antonio 1997, no writ), the jury awarded Barra-jas only $2,190.25 for past medical care although there was evidence he had incurred $6,639.15 in medical expenses. Barrajas was riding a Transit Authority Bus when it was bumped from the rear by a trolley also owned by VIA. The court noted that “the jury heard evidence that the impact in question was less than five miles per hour, that Barrajas was the only passenger injured, and that Barrajas’ injuries were either non-existent or barely perceptible.” Id. at 209. Barrajas’ x-rays indicated each region examined was normal and the emergency room physician released him to return to work with no limitations within two days of the accident. The court declined to overturn the jury’s verdict, relying, it seems clear, on the paucity of objective evidence supporting Bar-rajas’ injury claims. Id. The court of appeals affirmed the jury’s finding of no damages for pain and suffering in Hyler v. Boytor, 823 S.W.2d 425, 427 (Tex.App.-Houston [1st Dist] 1992, no writ), relying on Justice Hecht’s analysis in Blizzard:

Weighing the many subjective complaints against the one objective injury that might have been caused by this accident, it is apparent that the indicia of injury are more subjective than objective. Thus, the jury finding of no damages should not be overturned. See Blizzard, 756 S.W.2d at 805.

Hyler, 823 S.W.2d at 428.

Analysis

The relevant inquiry in this case is whether the indicia of Horton’s injury are more objective than subjective. Like the plaintiff in Hill whose leg was broken by buckshot, x-rays objectively showed Horton’s ankle fracture. The $1,180.75 in medical expenses he incurred on the day of his injury for ambulance service, the hospital emergency room, and emergency room doctor totaled more than the jury awarded for all elements of damage. If the $1,035.00 bill for his treatment by a board-certified orthopedic surgeon and the charges incurred for physical therapy are included, the medical expenses directly related to the ankle fracture are four and one-half times greater than the jury’s damage award.

The Hortons called only one expert witness, Dr. Johnston. Dr. Johnston’s credibility was no doubt severely undermined when it became apparent to the jury that he initially had pronounced all of Horton’s medical expenses as “reasonable and necessary” without ever having looked at them. He was also forced to admit that he had no basis for his conclusion that Horton’s possible pulmonary embolism was related to the ankle fracture beyond what Horton told him. Denny’s presented no medical evidence. Although Denny’s vigorously questioned the relationship between the embolism and the ankle fracture, nothing in Denny’s cross-examination of Dr. Johnston brought into question the records and charges of the North Richland Hills Fire Department Ambulance Service, the Columbia North Hills Hospital emergency room, the emergency room doctor, or even the charges of Dr. Johnston himself. Even disregarding physical pain and all other elements of damage but medical expenses, the jury’s award was clearly inadequate and against the great weight and preponderance of the evidence. Appellant’s first issue is sustained.

Because we have sustained the Hortons’ first issue, we need not address their second issue complaining of the trial court’s failure to grant a new trial. Tex.R.App. P. 47.1.

The judgment is reversed and the cause remanded to the trial court. 
      
      .
      Ambulance $ 349.00
      Hospital Emergency Room $ 435.85
      Emergency Room Physician $ 370.00
      Radiology (x-ray left ankle) $ 25.90
      Total $1,180.75
     