Opinion

Marquette Transportation Company Gulf-Inland, LLC v. Lorne Jackson

Court: Texas Court of Appeals, 1st District (Houston)
Filed: Apr 26, 2012
Status: Published
Cited by: 0 cases
Authority: More cited than 42.2%

discussing standard of review under FELA, which was incorporated into Jones Act

How later courts described this case

discussing standard of review under FELA, which was incorporated into Jones Act
holding that mental anguish can be established through testimony from injured party explaining how he felt and how his life was disrupted
stating that disfigurement is “that which impairs or injures the beauty, symmetry, or appearance of a person . . . ; that which renders unsightly, misshapen or imperfect, or deforms in some manner”
holding award for future medical expenses largely within trial court’s discretion “[b]ecause issues such as life expectancy, medical advances, and the future costs of products and services are, by their very nature, uncertain”

Written by the judges who cited it.

The opinion

Opinion issued April 26, 2012

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-01025-CV

———————————

Marquette Transportation Company Gulf-Inland, LLC , Appellant

Lorne

Jackson , Appellee

On Appeal from the 55th District Court

Harris County, Texas

Trial Court Case No. 2009-16642

MEMORANDUM OPINION

Lorne

Jackson, appellee, sued the appellant, Marquette Transportation Company

Gulf-Inland, LLC (“Marquette”), under the Jones Act for personal injuries he

sustained while employed on one of Marquette’s vessels. Following a bench trial, the trial court

entered judgment in Jackson’s favor. In

three issues, Marquette argues that (1) the evidence and findings of fact do

not support the conclusion that Marquette and its pilot were negligent; (2) the

evidence conclusively established that Jackson was negligent; and (3) the

findings of damages for pain and mental anguish, future medical expenses,

physical impairment, and physical disfigurement are not supported by factually

sufficient evidence.

We affirm.

Background

Marquette

hired Jackson in January 2009. Jackson

subsequently received approximately ninety minutes of training, including

watching a training video on the safe handling of lines and an hour of

classroom training. Jackson also

received on-the-job training for several weeks aboard Marquette marine

vessels. On February 18, 2009, Marquette

assigned Jackson to the St. Andrew, a push boat, where he sustained his injury

ten days later. Jackson sued Marquette

for negligence under the Jones Act for his personal injury. See 46

U.S.C. § 30104 . Jackson

also alleged that the St. Andrew and its crew were unseaworthy. However, the trial court found that the

vessel and crew were seaworthy, and this determination of the trial court is

not challenged on appeal.

At trial, the evidence revealed

that, on the evening the injury occurred, it was dark or “pitch black” on the

deck of the barge. Jackson and pilot

John King were the two crew members on duty, and King was the officer on duty. Two other crew members, Captain Carl Royce

and First Mate John Bartholomew, were off duty, and Bartholomew was sleeping

below deck. At this time, Jackson had

been a Marquette employee for a little more than a month, and it is undisputed

by the parties that Jackson was an inexperienced, “greenhand” seaman.

The St. Andrew received

instructions to retrieve a barge from a dock at the Houston Ship Channel and

transport it to a nearby staging area.

The barge was moored to the dock by six mooring lines, and King assisted

Jackson in “facing up” the St. Andrew to the barge and removing five of the

lines mooring the barge to the dock with no problems. At some point, King left the deck of the

barge to return to the wheelhouse on the St. Andrew, leaving Jackson on the

deck of the barge by himself, in spite of Marquette’s policy providing, “If

possible, never go on the tow alone at night.”Jackson attempted to remove the

last mooring line—a rope approximately 75 feet long and three inches in

diameter—but he was unable to do so because the line was “fouled” on the

timberhead—the post where the mooring line was attached at the dock.

King testified that before he left

the barge he told Jackson that he would have to return to the St. Andrew before

the last line was removed so that he could steer the boat. He testified that he told Jackson to try to

remove the final line the same way they had removed the first five, and if he

could not do that, they would try something else. He testified that, from his position in the

wheelhouse, he could see Jackson on the deck of the barge, but he could notsee

Jackson’s lower body, which was apparently obscured by piping. He saw that Jackson was unable to remove the

line, and when Jackson appeared to try to climb up onto the dock, King told him

over the radio to stop, based on a concern that Jackson might fall between the

dock and the barge. King testified that

he told Jackson “to put the eye back on the cavel [1] . . . and that I would pull

it free with the boat, to just stand back and get out of the way and I’ll move

it.” He testified that Jackson returned

the eye back to the cavel and backed away to a location that appeared to be

free of the line.

Jackson, in contrast, testified

that King told him only that he was going back to the wheelhouse, but he did

not say anything else about what was going to happen. Jackson testified that he was confused about

the process of removing the mooring lines, and he did not understand what King

was trying to do. He testified that he

communicated with King over the radio, and King told him that he was moving the

St. Andrew, which, at that time, Jackson did not realize was attached to the

barge—he thought the St. Andrew was attached to the dock. Jackson testified that he did not know that

the line was going to move and that he never received any instructions from King

to stand clear of the line, which was about 75 feet long. It is undisputed that the barge was

approximately 54 feet wide. Edward

Webster, an expert on liability who testified on Jackson’s behalf, testified

that the amount of rope was significant “because 50 feet [of rope] just not

even coiled up and laying on the deck fills a pretty large area of that deck

space” and because the length made the rope more likely to “snag the

timberhead.” He testified that a few

feet of the rope would have been looped in a figure eight around the cavel, but

the rest would have been splayed out on the deck in the forward area where

Jackson was standing.

As King used the St. Andrew to

attempt to move the final line, the line moved suddenly andJackson’s left leg

became tangled in the line and was severely injured. Jackson testified that the “line came quick

and it . . . hooked my boot” and pulled him into the cavel where the line was

looped on the barge’s deck. Jackson

testified that he did not run after the line to try to catch it, but instead,

the line was pulling him. King, on the

other hand, testified that when the barge started moving, Jackson “began to run

towards the dock itself. It appeared

that he was taking off running.” At that

point, King ordered Jackson over the radio to not “chase the line” and then saw

him collapse and lost sight of his body.

Less than a week after Jackson’s

injury, Marquette filed a “Report of Marine Accident, Injury, or Death” with

the United States Coast Guard. This

report stated that as King, the pilot, was attempting to pull the line free

from the dock, he “looked up to the bow of the barge and it appeared that

[Jackson] had become entangled in the line and could not get free. While pulling away from [the] dock the line

tightened and drew [Jackson’s] left leg toward the cavel,” resulting in severe

injury to Jackson’s left knee and lower leg.

That report also stated that King “was unable to see the accident due to

the piping on the barge obstructing his view.”

This report contains no mention that Jackson failed to follow King’s

instructions, nor does it indicate that Jackson “chased” the line.

Regarding his injury, Jackson

testified that he realized he was injured when he hit the cavel on the barge

deck. He experienced “excruciating

pain,” “pain like [he had] never felt before in [his] life.” Shawn Best, a deck mate on another ship who

came to Jackson’s aid, described Jackson’s injuries immediately following the

accident: he stated that he could “see that [Jackson was] in pain,” that “his

foot was hanging off of his leg at . . . a 90-degree angle,” and that there was

“blood everywhere.” Jackson and Dr.

Lionberger, one of Jackson’s treating physicians and expert witnesses,

testified regarding the extent of Jackson’s injuries and the numerous surgical

procedures Jackson required as a result.

Jackson, Lionberger, Jackson’s mother, and Marquette’s medical expert,

Dr. Sassard, among others, all testified regardingthe nature and extent of

Jackson’s injury and subsequent recovery.

The

trial court made the following findings of fact, among others:

Pilot

John King (“King”) was an employee of Marquette and the presiding officer of

the operation at the time of the accident.

On February 28, 2009, Jackson had been on the job 37

days. Jackson was a “greenhand” or

inexperienced seaman.

Captain Carl Royce and Deck Mate John Bartholomew were on

board. They were both in their quarters

and Bartholomew was asleep.

King did not wake up Bartholomew to assist Jackson on the

barge.

Sunset on the day of the accident was 6:20 p.m. The accident happened at 6:45 p.m.

On the deck of the barge it was “night,” “dark” or “pitch

black.”

. . . .

King left Lorne Jackson alone on the deck of the barge at

night while he returned to the wheelhouse and Jackson attempted to free the

sixth, or last line on the barge. . . .

At the time of the accident King was in the wheelhouse 240

feet away from Jackson on the deck of the barge. Pilot King was in visual contact with

Jackson, but could not see his legs or feet.

Pilot King was in verbal contact with Jackson through a walkie-talkie. .

. .

When King left Jackson on the deck of the barge, he did not

know the line was fouled and could not be removed from the timberhead. After Pilot King returned to the wheelhouse

he decided to free the line by moving the barge away from the dock.

. . . .

King

instructed Jackson to release the line from the cavel and he would pull the

long end around the timberhead on the dock. . . .

When King started to pull away from the dock, Jackson was

positioned in the center of the bow of the barge.

This was the first time Lorne Jackson performed this

operation.

Jackson appeared to chase the line.

Jackson’s foot was caught in the line dragging his left leg

under the barge’s cavel causing injury.

. . . .

Jackson

was taken by ambulance to the nearest hospital and transferred to Memorial

Hermann where he had surgery to repair a Grade IIIA open fracture of the left

distal tibial diaphysis with open reduction and application of an external

fixator.

Jackson has had six surgeries to date on his left leg which

resulted in reconstruction of the left leg and ankle with right latissimusdorsi

free flap, dissection of posterior tibial vessels and split thickness skin

graft.

Jackson suffered a degloving of his lower left leg.

Jackson has a permanent malrotation of his left ankle.

Jackson will likely suffer injury to his left knee over

time.

Jackson continues to suffer from lymphedema which leads to

swelling and pain in his lower leg.

Jackson’s lower left leg shows significant scarring. Jackson has scarring on his upper leg and

side from skin and muscle harvesting.

Jackson cannot stand or walk for more than one hour a day.

The

trial court concluded that Jackson was a Jones Act seaman employed by Marquette

working in the scope of his duties at the time of his injury, that “Marquette

and King were negligent on February 28, 2009 and their negligence was a

producing cause of injury to Lorne Jackson,” and that “Jackson was not

negligent” and “acted as a reasonable and prudent seaman under the

circumstances.” The trial court also

concluded that “Jackson suffered pain and mental anguish in the past and, in

reasonable probability, will suffer pain and mental anguish for the rest of his

life,” that he “suffered permanent injuries including disfigurement and

physical impairment,” and that his “injuries resulted in past medical care and,

in reasonable probability, will require future medical care.”

The

trial court entered judgment in favor of Jackson, awarding him $4,162,176.40 in

total damages against Marquette. The

trial court’s judgment provided that this amount included $1 million for past

physical pain and mental anguish, $500,000 for future physical pain and mental

anguish, $500,000 for past disfigurement, $500,000 for future disfigurement,

$500,000 for past physical impairment, $500,000 for future physical impairment,

and $225,000 for future medical expenses. [2]

Negligence

its first issue, Marquette argues that the evidence and the trial court’s

findings of fact do not support a conclusion that Marquette and its pilot,

King, were negligent. Specifically,

Marquette argues that the Jones Act does not require Marquette to ensure an

employee’s safety, and, thus, Jackson had the burden to prove that Marquette

and King acted negligently. It argues

that the findings made by the trial court and the evidence presented at trial

do not support a legal conclusion that Marquette and King breached any duty

owed to Jackson. In its second issue,

Marquette argues that the evidence conclusively established that Jackson was

negligent.

A. Standard

of Review

The

Jones Act provides a cause of action for maritime workers injured by an

employer’s negligence. Maritime Overseas Corp. v. Ellis , 971

S.W.2d 402, 405 (Tex. 1998); Diamond Offshore

Mgmt. Co. v. Horton , 193 S.W.3d 76, 78 (Tex. App.—Houston [1st Dist.] 2006,

pet. denied). Federal law provides that

a party asserting an admiralty action may bring the action in state court. Ellis ,

971 S.W.2d at 405 – 06; Horton , 193 S.W.3d at 78 ; see 28 U.S.C. § 1333(1) (2000). When a state court hears an admiralty case,

that court occupies essentially the same position occupied by a federal court

sitting in diversity: the state court must apply substantive federal maritime

law but follow state procedure. Ellis , 971 S.W.2d at 406 ; Horton , 193 S.W.3d at 78 .

fundamental duty of a Jones Act employer is to provide its seamen employees

with a reasonably safe place to work. Noble Drilling (US) Inc. v. Fountain ,

238 S.W.3d 432, 439 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (citing Colburn v. Bunge Towing, Inc. , 883 F.2d

372, 374 (5th Cir. 1989)). The proper

standard for determining the duty of care owed by an employer or a seaman is

ordinary prudence under the circumstances.

Id. (citing Offshore Pipelines, Inc. v. Schooley ,

984 S.W.2d 654, 658 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (citing Gautreaux v. Scurlock Marine, Inc. , 107

F.3d 331, 335, 339 (5th Cir. 1997))).

The circumstances of a seaman’s employment include not only his reliance

on his employer to provide a safe work environment but also his own experience,

training, or education. Id. (citing Gautreaux , 107 F.3d at 339 ).

Thus, the reasonable person standard applies, and the standard in a

Jones Act negligence action “becomes one of the reasonable seaman in like

circumstances.” Id. (quoting Gautreaux ,

107 F.3d at 339 ).

The

Jones Act expressly incorporates the Federal Employers’ Liability Act (“FELA”)

and the case law developing that statute, and thus the causation standard under

the Jones Act is the same as that under FELA.

Ellis , 971 S.W.2d at 406 ; Horton , 193 S.W.3d at 79 . Under FELA, the causation burden is not the

common law proximate cause standard; rather, the causation burden is “whether

the proof justifies with reason the conclusion that employer negligence played

any part, even the slightest, in producing the injury for which the claimant

seeks damages.” Ellis , 971 S.W.2d at 406 ; Horton ,

193 S.W.3d at 79 ; see also Fountain ,

238 S.W.3d at 439 – 40 (“Under

the Jones Act, a seaman is entitled to recovery if his employer’s negligence is

the cause, in whole or in part, of his injury.”) (citing Gautreaux , 107 F.3d at 335 ).

This burden has been termed “featherweight.” Ellis ,

971 S.W.2d at 406 ; Horton , 193 S.W.3d

at 79 . Thus, to prove negligence, an

employee must prove: (1) personal injury in the course of his employment;

(2) negligence by his employer or an officer, agent, or employee; and (3)

causation to the extent that his employer’s negligence was the cause “in whole

or in part” of his injury. RigdonMarine Corp. v. Roberts , 270

S.W.3d 220, 226 (Tex. App.—Texarkana 2008, pet. denied) (citing Hernandez v. Trawler Miss Vertie Mae, Inc. ,

187 F.3d 432, 436 (4th Cir. 1999) and Gautreaux ,

107 F.3d at 335 ).

addition to a less stringent burden of proof, the standard of appellate review

in Jones Act cases, as provided under FELA, is also less stringent than under

the common law. Ellis , 971 S.W.2d at 406 ; Horton ,

193 S.W.3d at 79 . The purpose of the

Jones Act standard of review is to vest the fact-finder with complete

discretion on factual issues about liability.

Ellis , 971 S.W.2d at 406

(citing Rogers v. Mo. Pac. R.R. Co. ,

352 U.S. 500 , 506–07, 77 S. Ct. 443 , 448–49 (1957) (discussing standard of

review under FELA, which was incorporated into Jones Act)); Horton , 193 S.W.3d at 79 . Once the appellate court determines that some

evidence about which reasonable minds could differ supports the verdict, the

appellate court’s review is complete. Ellis , 971 S.W.2d at 406 ; Horton , 193 S.W.3d at 79 ; see also Davis v. Odeco, Inc. , 18 F.3d

1237, 1243 (5th Cir. 1994) (holding that some evidence of “causal nexus”

between negligence and injury is all that is required to survive appellate

review of favorable verdict on Jones Act negligence claim). We apply this less-stringent

standard rather than a traditional factual sufficiency review of a finding of

liability under the Texas “weight and preponderance” standard. Ellis ,

971 S.W.2d at 406 ; Horton , 193 S.W.3d

at 79 .

B. Marquette’s

Negligence

Marquette

argues that the evidence and the trial court’s findings do not support its

conclusion that Marquette and King, the officer on duty at the time of the

accident, were negligent.

The trial court found that King

left Jackson “alone on the deck of the barge at night” so that Jackson was

required to free the final mooring line by himself and that other,

more-experienced crew members were on board, although they were off duty. The trial court also found that, at the time

he left the barge, King did not know that the final line was fouled on the

timberhead and that he decided after he returned to the wheelhouse to free the

line by moving the barge away from the dock.The trial court further found that King

was “in visual contact with Jackson, but could not see his legs or feet,” that

Jackson “appeared” to chase the line, and that Jackson’s “foot was caught in

the line dragging his left leg under the barge’s cavel causing injury.”

These findings are supported by the

evidence. Jackson’s testimony indicated

that it was dark outside at the time of the incident, that he did not

understand the task he was asked to perform, and that King never gave him any

specific instruction about where to stand or what was about to happen. Jackson testified that,although he was not

sure what was going to happen next, he understood that he was supposed to stay

out of the way for whatever was about to happen;that the “line came quick and

it hooked” his boot, pulling him into the cavel on the barge’s deck; and that

he did not run after the line to try to catch it, but, instead, the line pulled

him along the deck. Jackson had moved to

mid-deck, or “the center of the bow”of the 54-foot barge. According to Webster, approximately 50 feet

of the rope was splayed out over a “pretty large area” of the deck near where

Jackson was standing. King testified that he was 240 feet away from Jackson and

that his view of Jackson’s legs and feet was obscured.

Thus, the evidence and findings

support a conclusion that King and Marquette were negligent because King, in

spite of the fact that he could not see Jackson’s legs and feet,used the St.

Andrew to remove the final lineconnecting the barge to the dock while Jackson

was standing on the deck of the barge in proximity to the 50 feet of rope. King, according to Jackson’s testimony,

failed to warn Jackson or provide any instruction or information regarding what

to expect and what Jackson needed to do to preserve his safety. Furthermore,King failed to call another crew

member to assist Jackson with the unfamiliar maneuver, in violation of

Marquette’s policy that seamen should “never go on the tow alone at night” when

possible. See Fountain , 238 S.W.3d at

439 (holding that circumstances of seaman’s employment include not only his

reliance on his employer to provide safe work environment, but also his own

experience, training, and education, and that Jones Act employer has

fundamental duty to provide its seamen employees with reasonably safe

workplace).

The evidence supports a conclusion

that (1)Jackson suffered an injury in the course of his employment;

(2) King, the officer on duty, was negligent in failing to properly warn

or instruct Jackson regarding the operation they were performing or in failing to

call another crew member to assist Jackson with the unfamiliar maneuver; and

(3) this negligence cause Jackson’s injury “in whole or in part.” See

Roberts , 270 S.W.3d at 226 .

We overrule Marquette’s first

issue.

C. Jackson’s

Negligence

Marquette

also argues that the evidence supports a conclusion that Jackson was negligent

as a matter of law. Marquette relies on

King’s testimony that he told Jackson to stay out of the way of the line; the

training Jackson had previously received; and the trial court’s finding that

Jackson “appeared to chase the line” in spite of King’s warning.

Jackson

did not dispute that he received ninety minutes of training before beginning

work with Marquette, which included a training video and approximately an hour

of classroom training, and that he received several weeks of on-the-job

training on other vessels before being assigned to the St. Andrew. However, Jackson also testified that he was

not familiar with the procedure he and King were preforming when the accident

occurred and that he was confused about whether he was on the dock or the barge

and about whether the St. Andrew was connected to the barge or the dock. He did not know what King was trying to do with

respect to removing the final mooring line, and he did not know what to expect

when King told him that he was going to move the barge. He testified that King did not give him any

specific instruction or command about where to stand, what to do, or what to

expect. Jackson’s testimony indicates

that he was attempting to “get out of the way [of] whatever was going to

happen,” but he did not know what was going to happen next, he was confused

about the process of removing the mooring lines, and he did not understand what

he and King were trying to do. Jackson

stated that he did not chase the line, but that the 75-foot long rope “came

quick and it hooked” his boot and pulled him along the deck into the cavel.

Furthermore, the trial court found,

and neither party disputes, that Jackson was a “greenhand,” or inexperienced

seaman. Thus, some evidence—in

particular, Jackson’s testimony—supports the trial court’s conclusion that Jackson

acted reasonably under the circumstances, given his experience, training, and

education. See Fountain , 238 S.W.3d at 439 ; see also Stevens v. Seacost Co. , 414 F.2d 1032, 1039 (5th Cir.

1969) (holding that shipowner was liable for negligence when inexperienced

seaman was injured as result of grabbing chain as ship’s captain hauled it in and

stating, “The seaman’s youth, unfamiliarity, and total lack of experience put a

heavier burden on the ship and relieved the victim of responsibility”); Davis v. Parkhill-Goodloe Co. , 302 F.2d

489, 494 (5th Cir. 1962) (stating that shipowner has “a duty to warn in an

effective way of dangers not reasonably known . . . and a duty to take

effective action in the light of the particular condition—here inexperience and

ignorance of seagoing perils—of the particular seaman” in holding shipowner

negligent for failure to warn inexperienced seaman to wear life vest).

Contrary to Marquette’s argument, the

trial court’s finding that “Jackson appeared to chase the line” does not

support a conclusion that the trial court believed that Jackson ran after the

line in an attempt to catch it. Consistent

with Jackson’s testimony, Jackson could have “appeared” to chase the line

because he was being dragged by it. We

interpret the trial court’s finding in a light favorable to its judgment. See

City of Keller v. Wilson , 168 S.W.3d 802, 822 (Tex. 2005).

Marquette also argues that “on day

one of his employment, a deckhand has enough training experience to stay clear

of a line.” However, Jackson stated that

he did not know what King was attempting.

He testifiedthat King’s only statement to himwas that King going to move

the St. Andrew, butJacksondid not realize the line would also move. His testimony also indicated that he had

never participated in a maneuver like the one King was attempting at the time

of Jackson’s accident. Thus, there was

some evidence about which reasonable minds could differ indicating that Jackson

did not have the training or experience to know to stay clear of the line. See Ellis , 971 S.W.2d at 406 ; Horton , 193 S.W.3d at 79 . As we have already discussed, the evidence

indicates that King decided to move the St. Andrew, using its engines, to

remove the line. He did so when he knew

Jackson stood on the deck of the barge but without a clear view of Jackson’s

legs and feet.

Jackson’s testimony about the incident

and its surrounding circumstances provided evidence about which reasonable

minds could differ in support of the trial court’s conclusion that Jackson was

not negligent, and, thus, we defer to the trial court’s judgment. See Ellis ,

971 S.W.2d at 406 ; Horton , 193 S.W.3d

at 79 .

We overrule Marquette’s second

issue.

Damages

its third issue, Marquette argues that the evidence supporting the trial

court’s award of damages was based on insufficient evidence. Specifically, it argues that the trial

court’s findings for pain and suffering, mental anguish, future medical expenses,

physical impairment, and past and future disfigurement were excessive.

A. Standard

of Review

Texas

courts of appeals have the power to review excessiveness of damages and to

order remittitur in FELA actions and, by implication, in Jones Act cases as

well. Ellis , 971 S.W.2d at 406 (citing Sweet v. Port Terminal R.R.Ass’n , 653 S.W.2d 291 , 294 – 95 (Tex. 1983)). We must make our own “detailed appraisal of the

evidence bearing on damages.” Id. (quoting Nairn v. Nat’l R.R. Passenger Corp. , 837 F.2d 565, 567 (2d Cir.

1988)).

The

standard of review for an excessive damages complaint is factual sufficiency of

the evidence. Id. We employ the same test

for determining excessive damages as for any factual sufficiency question. Id. When considering a factual sufficiency

challenge, we must consider and weigh all of the evidence, not just that

evidence that supports the verdict. Id. at 406 – 07. We can set aside the verdict

only if it is so contrary to the overwhelming weight of the evidence that it is

clearly wrong and unjust. Id. at 407. We are not the fact-finder

and may not pass upon the witnesses’ credibility or substitute our judgment for

that of the fact-finder, even if the evidence would clearly support a different

result. Id. We review a trial

court’s findings of fact for factual sufficiency under the same standards we

apply in reviewing a jury’s findings. Catalina v. Blasdel , 881 S.W.2d 295, 297

(Tex. 1994).

When someone suffers

personal injuries, the damages fall within two broad categories—economic and

non-economic damages. Golden Eagle Archery, Inc. v. Jackson ,

116 S.W.3d 757, 763 (Tex. 2003).Traditionally, economic damages are those that

compensate an injured party for lost wages, lost earning capacity, and medical

expenses, while non-economic damages include compensation for pain, suffering,

mental anguish, and disfigurement. Id. Damages

for physical impairment are another type of non-economic damages. See id.

Courts of appeals should conduct a

review of each category of damages awarded, considering the evidence unique to

each category, to determine whether the award for that category is against the

great weight and preponderance of the evidence.

Id. at 773 . If, considering the evidence unique to each

category, we determine that the award was against the great weight and

preponderance of the evidence, we then consider all of the overlapping

evidence, together with the evidence unique to each other category, to

determine if the total amount awarded in the overlapping categories is

factually sufficient. Id.

B. Damages

for Pain and Mental Anguish

part of its third issue, Marquette argues that damages the trial courtfound for

pain and mental anguish, namely that Jackson sustained $1 million in damages

for past pain and mental anguish and $500,000 for future pain and mental

anguish, are excessive.

reviewing the factual sufficiency of an award of damages for pain and

suffering, we give great discretion to the fact-finder in determining the

amount of damages it deems appropriate. See Marvelli v. Alston , 100 S.W.3d 460,

482 (Tex. App.—Fort Worth 2003, pet. denied).To recover damages for mental

anguish, a plaintiff must introduce “direct evidence of the nature, duration,

and severity of [his] mental anguish, thus establishing a substantial

disruption in [his] daily routine” or evidence of “a high degree of mental pain

and distress that is more than mere worry, anxiety, vexation, embarrassment, or

anger.” Parkway Co. v. Woodruff , 901 S.W.2d 434, 444 (Tex. 1995). The evidence must also justify the amount

awarded. Saenz v. Fid.& Guar. Ins. Underwriters , 925 S.W.2d 607, 614

(Tex. 1996). Damages for future mental

anguish are recoverable “if there is a reasonable probability that they will be

suffered in the future.” Lubbock Cnty. v. Strube , 953 S.W.2d 847,

857 (Tex. App.—Austin 1997, pet. denied) (op. on reh’g). Mental anguish can be established through

testimony from the injured party explaining how he felt and how his life was

disrupted. Tagle v. Galvan , 155 S.W.3d 510, 519 (Tex. App.—San Antonio 2004,

no pet.).

Marquette

argues that, “[a]t most, the evidence shows that Jackson consciously

experienced intense pain for approximately 30 minutes on the day of the

accident,” and that Jackson only experienced pain “on and off” after the

accident. Marquette cites the facts that

Jackson was not taking pain medication nine months after the accident and that

Jackson characterized his pain as mild and occasional following his final

surgery to support its contention that the findings on damages for past pain

were excessive. Marquette further argues

that the evidence does not support the finding on future pain because Dr.

Lionberger testified Jackson’s pain would stop once the leg healed completely

in a couple of years and because “Jackson was experiencing no pain on June 18,

2010 and could bear full weight on his left leg.”

Regarding

evidence of mental anguish, Marquette argues that Jackson did not present

sufficient evidence because neither his mother’s testimony that she was

concerned he was depressed nor evidence that Jackson worried about and dwelled

upon his injury demonstrated a “high degree of mental pain and distress that is

more than mere worry, anxiety, vexation, embarrassment, or anger.” See

Woodruff , 901 S.W.2d at 444 . It

further argues that there was no evidence that Jackson is likely to experience

mental anguish in the future.

The

record contains more evidence regarding Jackson’s physical pain and mental

anguish than the facts cited by Marquette.

Shawn Best, who observed Jackson’s injuries immediately following the

accident, testified that he could “see that [Jackson was] in pain,” that “his

foot was hanging off of his leg at . . . a 90-degree angle,” and that there was

“blood everywhere.” Jackson himself

testified that the pain he experienced at the time of the accident was

excruciating and unlike any pain he had felt before. Jackson’s medical records indicated that he

reported feeling pain several hours after the accident despite attempts to

control it with morphine. Jackson also

testified that he continued to experience painfrom the numerous surgeries that

occurred over the following months and that his leg still hurts him “every

day,” especially at night, when the pain sometimes keeps him awake. He also stated that his leg occasionally

“swells up . . . like a watermelon” or a basketball and that the pain when it

swells is “excruciating.”

Dr. Lionberger, the orthopedic

surgeon who was treating Jackson’s leg and who testified as a medical expert,

explained the severe nature of Jackson’s injuries. The accident broke both of the bones in

Jackson’s lower left leg, in what Dr. Lionberger described as a grade three,

type A fracture—“the worst [type of] open fracture without contamination.” Dr. Lionberger further testified that Jackson

suffered serious and extensive soft-tissue injuries to the surrounding tissues,

blood vessels, and skin on his left leg and that Jackson’s left knee had

multiple ligament tears.Dr. Lionberger testified about the extensive surgeries

that Jackson’s injury required in the two weeks following the accident,

including attachment of an external fixator to stabilize his leg and to prevent

the need for amputation, surgical removal of dead soft tissue and other repair

to the soft-tissue of the leg, another surgery to remove the external fixator

and insert a hollow tube with screws to stabilize the bones, a second surgery

to remove dead tissue, and skin and muscle grafts using tissue removed from

other places on Jackson’s body.

Dr. Lionberger testified that, at

the time of trial, Jackson was still suffering from lymphedema, or swelling,

that was “uncomfortable” and “painful” and that likely was permanent but could

possibly be improved upon. He testified

that pain from lymphedema like Jackson’s could “keep somebody awake at night”

and limit mobility. He also testified

that Jackson would require additional surgeries in the future, including knee

replacement and removal of the rod. Dr.

Lionberger testified that, in his opinion, Jackson’s injuries causedand the

corrective procedures him pain and suffering, and he will continue to

experience pain “in some form or fashion [for] the remainder of his life.”

Regarding mental anguish, Jackson’s

mother testified that Jackson “laid in his bed for over a solid year” after the

accident and did not start to “move about” until a month after his last surgery

in April 2010. She testified that, even

after he appeared to accept that “this is [his] life and [he’s] just going to

have to go on with it,” she still did not “get the sense of him being that

happy in his appearance and how he behaved.”

She testified that he was “truly depressed” for “one solid year” and that

“[f]riends could come by; no one could entice him to come out of his

room.” She testified that, even at the

time of trial, Jackson still spent most of his time in his room, elevating his

leg to prevent swelling, and that he could not perform basic chores like

cooking and cleaning.

Jackson also testified about his

mental state. He testified that it took

about a month after the incident before he even attempted to be around other

people and that he felt like he was “coming out of [a] tomb.”He testified that

when he tried to get out and do things, his leg swelled and caused pain,

resulting in his retreating back to his room at his parents’ house, and that

this made him “feel bad about [his] life.”

He testified that it makes him depressed to think about the extent of the

injury and the fact that he will never have a fully-functioning leg again. He also testified that “it ain’t going to

feel too good” to have his parents, girlfriend, or sons take care of him for

the rest of his life because he can only stand or walk for about an hour before

his leg starts to swell painfully.

Thus, reviewing all the evidence,

we conclude that sufficient, probative evidence exists to support the trial

court’s conclusion that Jackson suffered past physical pain and mental anguish

and that he will suffer physical pain and mental anguish in the future. Jackson’s own testimony and that of his

mother provided evidence of the nature, duration, and severity of his mental

anguish and established that he experienced a “substantial disruption in his

daily routine.” See id. It also established

a probability that he would continue to experience a substantial disruption to

his daily routine in the future. See Strube , 953 S.W.2d at 857 ; see alsoTagle , 155 S.W.3d at 519 (holding

that mental anguish can be established through testimony from injured party

explaining how he felt and how his life was disrupted). Furthermore, Jackson’s testimony regarding

his past and current pain and Dr. Lionberger’s description of Jackson’s

extensive and severe injuries and his opinion that it was medically probable

that Jackson would suffer from at least some pain from those injuries for the

rest of his life support the finding of past and future pain. See Gen.

Motors Corp. v. Burry , 203 S.W.3d 514, 552 (Tex. App.—Fort Worth 2006, pet.

denied) (“Pain and suffering may be inferred or presumed as a consequence of

severe injuries.”).

Given the severe injury, multiple

painful surgeries, and Jackson’s future prognosis, the record does not indicate

that the trial court’s award was against the great weight and preponderance of

the evidence. See Jackson , 116 S.W.3d at 773 ; s ee also Sunbridge Healthcare Corp. v. Penny , 160 S.W.3d 230 , 248–52

(Tex. App.—Texarkana 2005, no pet.) (holding that award of one million dollars

was not excessive to compensate plaintiff for physical pain and mental anguish

suffered from injuries sustained in fall); Cresthaven

Nursing Residence v. Freeman , 134 S.W.3d 214 , 228–32 (Tex. App.—Amarillo

2003, no pet.) (awarding one million dollars to compensate plaintiff for

physical pain and mental anguish suffered from two broken legs sustained in

fall).

C. Damages

for Future Medical Expenses

Marquette

also argues in its third issue that the evidence was insufficient to support

the trial court’s finding of $225,000 for future medical expenses because Dr.

Lionberger admitted that his estimate was a “guess” and because at least one of

the procedures that Lionberger anticipated that Jackson would need in the

future—arthroscopy of the knee—had already been completed at the time of trial.

begin by observing that an award of future medical expenses, like damages for

pain and suffering or mental anguish, lies largely within the fact-finder’s

discretion. Antonov v. Walters , 168 S.W.3d 901, 908 (Tex. App.—Fort Worth 2005,

pet. denied). “Because issues such as

life expectancy, medical advances, and the future costs of products and

services are, by their very nature, uncertain, appellate courts are

particularly reluctant to disturb a [fact-finder’s] award of these

damages.” Id. No precise evidence is

required to support an award of future medical expenses, and the fact-finder

may base its award on the nature of the injuries, the medical care rendered

before trial, and the condition of the injured party at the time of trial. Tagle ,

155 S.W.3d at 519 (citing City of San Antonio

v. Vela , 762 S.W.2d 314 , 320–21 (Tex. App.—San Antonio 1988, writ denied)).

Dr. Lionberger testified that, in

addition to the arthroscopy to repair injuries to knee ligaments and cartilage,

Jackson would likely need a total knee replacement as a result of his injury

and that, because Jackson was forty-six and knee replacements begin to fail

between ten to fifteen years after surgery, Jackson would need more than one

total knee replacement based on reasonable medical probability—potentially

between two and four total knee replacements.

He also testified that Jackson would need to have the support rod and

screws removed from his leg, but the extent of the surgeries required to do so

depended on how well Jackson’s leg healed.

If his leg healed well, then doctors could perform two surgeries to

remove the screws and rod and allow his bone to finish healing, but if Jackson

suffered any complications, such as a re-fracture of the weakened bone, then he

would need to have a new rod, new grafts, and eventual removal of the

replacement rod.

Dr. Lionberger’s deposition

testimony, as admitted at trial, established that he believed Jackson would

need approximately $255,000 for future medical expenses as a “rough estimate

being somewhat pessimistic as to the surgeries and the complications that could

befall him.” At a subsequent deposition,

also admitted at trial, Dr. Lionberger testified that even after the

arthroscopic knee surgery had been completed, he still believed that $225,000

was a good estimate of Jackson’s future expenses. He testified that Jackson was still not

“totally healed” and that potential complications to the healing process would

be very expensive to treat. Furthermore,

Dr. Sassard, Marquette’s medical expert, testified that a knee replacement could

cost between $75,000 and $100,000 “[b]y the time you get through all the

expenses and hospital charges and surgeon’s fees and anesthesia and the rehab

and medication. . . .”

Dr.

Lionberger was not required to give precise evidence to support the award of

future medical expenses, and he provided extensive evidence regarding the

nature of Jackson’s injuries, the medical care rendered before trial, Jackson’s

condition at the time of trial, and his probable future medical needs. The trial court was entitled to rely upon

such evidence to support its award. See Tagle , 155 S.W.3d at 519 ; s ee also Weeks Marine, Inc. v. Salinas ,

225 S.W.3d 311, 320 (Tex. App.—San Antonio 2007, pet. dism’d) (holding that

“jury is entitled to disbelieve or discount any part of an expert’s testimony”

and to “make credibility determinations and weigh competing expert testimony

and the variables and assumptions upon which that testimony is based”). Thus, the evidence supports the trial court’s

determination that Jackson would incur additional medical expenses in the

future, and it does not indicate that the trial court abused its discretion in

awarding $225,000 for those damages. See Antonov ,

168 S.W.3d at 908 (holding award for future medical expenses largely within

trial court’s discretion “[b]ecause issues such as life expectancy, medical

advances, and the future costs of products and services are, by their very

nature, uncertain”).

D. Damages

for Physical Impairment

Marquette

argues that the trial court’s finding that Jackson suffered $500,000 in damages

for past physical impairment and $500,000 for future physical impairment was

not supported by the record.

“Physical

impairment” may encompass the loss of the injured party’s lifestyle, the effect

of which must be substantial and extend beyond any pain, suffering, mental

anguish, lost wages, or diminished earning capacity. Jackson ,

116 S.W.3d at 772 . The loss of enjoyment

of life may be considered as a factor in assessing damages for physical

impairment. Id. ; see also Figueroa v.

Davis , 318 S.W.3d 53, 64 (Tex. App.—Houston [1st Dist.] 2010, no pet.)

(“Physical impairment, sometime called loss of enjoyment of life, encompasses

the loss of the injured party’s former lifestyle.”) (quoting Burry , 203 S.W.3d at 554 ). However, a claimant should not be compensated

more than once for the same elements of loss or injury. Jackson , 116 S.W.3d at 770, 772 .

Marquette

argues that there was insufficient evidence of Jackson’s physical impairment

because the “only evidence of any effect on specific non-work related

activities was Jackson’s supposed inability to play recreational sports with

family members.” Jackson testified that

before his accident he was athletic and liked to play basketball, softball, and

volleyball and to rollerskate with his brothers and his sons. He also testified that he had been living

with his girlfriend and had been planning to ask her to marry him, but he had

to postpone those plans indefinitely to move in with his parents because he was

no longer able to care for himself following the accident.

Dr.

Lionberger also testified that Jackson sustained life-long physical

impairment. He testified that Jackson

had “gait deficiencies” and “rotational abnormalities” that resulted in Jackson’s

walking with a permanent limp; that he did not have full sensation in his left

foot; that he would never be able to run again; that he might dance again, but

“he’s not going to be equal and as agile as he was”; and that he was never

going to be able to move as he had before the accident. He further testified that Jackson should

probably put a “one-hour limit” on the amount of walking and standing that he

does each day. As a result, both Jackson

and his mother testified that Jackson was unable to do many common household

tasks, such as cooking and cleaning.

Thus,

there was sufficient evidence, beyond the loss of earning capacity, of loss of

enjoyment of life, loss of his former lifestyle, and permanent physical

impairment, both in the past and in the future.

Dr. Lionberger’s and Jackson’s testimony established that Jackson’s

mobility will be permanently limited and that he will no longer be able to

participate in the same activities that he pursued before he was injured,

including everything from standing in order to cook and clean to playing

basketball with his family.Given these facts, we conclude that the trial

court’s award was not contrary to the great weight and preponderance of the

evidence. See Jackson , 116 S.W.3d at 773 ; see

also Davis , 318 S.W.3d at 64–65 (upholding award for past and future

physical impairment for plaintiff with dental injuries because he subsequently

had to limit number and types of food he ate and “could not eat some of the

foods that he loved” for several years); Burry ,

203 S.W.3d at 545–55 (upholding $3.5 million for future physical impairment for

mother who suffered brain damage and could no longer read to her children,

drive a car, or live without supervision).

E. Damages

for Disfigurement

Finally,

Marquette argues in its third issue that the evidence was insufficient to

support the trial court’s findings and award of $500,000 for past disfigurement

and $500,000 for future disfigurement.

Marquette argues that the evidence of disfigurement was insufficient because

Jackson’s permanent scarring—on his lower left leg, his upper leg, and his side

below his arm—“is on parts of his body that generally will be covered by

clothing.”

Disfigurement

is “that which impairs or injures the beauty, symmetry, or appearance of a

person . . . ; that which renders unsightly, misshapen or imperfect, or deforms

in some manner.” Goldman v. Torres , 341 S.W.2d 154, 160 (Tex. 1960); Pendergraft v. Carrillo , 273 S.W.3d 362,

367 (Tex. App.—Eastland 2008, pet. denied).

Moreover, the Texarkana Court of Appeals has rejected the argument that

a plaintiff’s scar was not compensable disfigurement because it was small and

covered by clothing. Wal-Mart Stores, Inc. v. Tinsley , 998

S.W.2d 664, 673 (Tex. App.—Texarkana 1999, pet. denied). As that court observed, multiple Texas courts

have upheld past and future disfigurement awards for surgical scars. See id. ;