Guillermo Ochoa-Cronfel v. Patrick C. Murray

ACCEPTED

03-15-00242-CV

6919167

THIRD COURT OF APPEALS

AUSTIN, TEXAS

9/14/2015 4:56:31 PM

JEFFREY D. KYLE

CLERK

Case Number 03-15-00242-CV

IN THE THIRD DISTRICT COURT OF APPEALS FILED IN

3rd COURT OF APPEALS

at Austin AUSTIN, TEXAS

9/14/2015 4:56:31 PM

JEFFREY D. KYLE

GUILLERMO OCHOA-CRONFEL, Clerk

Appellant,

v.

PATRICK C. MURRAY,

Appellee.

From Cause No. D-1-GN-11-002136 in the 345th Judicial District Court

Of Travis County, Texas

APPELLANT’S BRIEF

Paul T. Morin, P.C. Guillermo Ochoa-Cronfel

State Bar No. 14460550 State Bar No. 15175600

503 W. 14th Street 2700 Bee Caves Road, Suite 103

Austin, Texas 78701 Austin, Texas 78746

Telephone: (512) 499-8200 Telephone: (512) 347-9600

Facsimile: (512) 499-8203 Facsimile: (512) 347-9911

PMorin@austin.rr.com Guillermo@thecronfelfirm.com

ATTORNEYS FOR APPELLANT

Oral Argument Requested

September 14, 2015

IDENTITY OF PARTIES AND COUNSEL

Appellant and Plaintiff below:

Guillermo Ochoa-Cronfel (hereafter, “Cronfel” and/or “Plaintiff”).

Trial Counsel for Plaintiff:

Mr. Paul T. Morin

Texas Bar No. 14460550

Paul T. Morin, P.C.

503 West 14th Street

Austin, Texas 78701

Telephone: (512) 499-8200

Facsimile: (512) 499-8203

Mr. Chris Cagle

Texas Bar No. 24048905

The Cagle Law Firm, P.C.

4425 South Mopac Expressway

Building II, Suite 105

Austin, Texas 78735

Telephone: (512) 371-6101

Facsimile: (512) 597-3132

Appellate Counsel for Plaintiff:

Mr. Paul T. Morin (See Above)

Mr. Guillermo Ochoa-Cronfel

Texas Bar No. 15175600

2700 Bee Caves Road, Suite 103

Austin, Texas 78746

Telephone: (512) 347-9600

Facsimile: (512) 347-9911

[1]

Appellee and Defendant below:

Patrick C. Murray (hereafter, “Murray” and/or “Defendant”).

Trial Counsel for Defendant:

Mr. Brett H. Payne

Texas Bar No. 00791417

Ms. Katherine L. “Katie” Sacra McLean

Texas Bar No. 24037971

Walters, Balido & Crain, L.L.P.

9020 N. Capital of Texas Highway

Building II, Suite 225

Austin, Texas 78759

Telephone: (512) 472-9000

Facsimile: (512) 472-9002

Appellate Counsel for Defendant:

Mr. Gregory R. Ave

Texas Bar No. 01448900

Walters, Balido & Crain, L.L.P.

10440 North Central Expressway

Meadow Park Tower, Suite 1500

Dallas, Texas 75231

Telephone: (214) 347-8310

Facsimile: (214) 347-8311

[2]

Table of Contents

INDEX OF AUTHORITIES……………………………………………..…………5

STATEMENT OF THE CASE……………………………………………………11

STATEMENT REGARDING ORAL ARGUMENT…………………..…………12

ISSUES PRESENTED....................................................................................…....13

STATEMENT OF FACTS………………………………………………………..16

SUMMARY OF THE ARGUMENT………………………………….………..…25

ARGUMENT AND AUTHORITIES…………………………………………..…26

1. The Jury’s Finding in Question 1, That the Negligence of Guillermo

Ochoa-Cronfel Proximately Caused the Injury in Question, is Not

Supported by Legally and/or Factually Sufficient Evidence…………...26

2. The Jury’s Finding in Question 2, That Guillermo Ochoa-Cronfel was

45% Responsible for Causing the Injury in Question, is Not Supported by

Legally and/or Factually Sufficient Evidence………………………..…27

3. The Jury’s Finding in Question 3(1), That the damages for the physical

pain and mental anguish sustained in the past by Guillermo Ochoa-

Cronfel as a result of the injury was only $2,500.00, is Not Supported by

Legally and/or Factually Sufficient Evidence…………………..………40

4. The Jury’s Finding in Question 3(2), That the damages for the physical

pain and mental anguish that, in reasonable probability, Guillermo

Ochoa-Cronfel will sustain in the future as a result of the injury was only

$1,000.00, is Not Supported by Legally and/or Factually Sufficient

Evidence…………………………………………………………….…..50

5. The Jury’s Finding in Question 3(3), That the damages for the physical

impairment Guillermo Ochoa-Cronfel sustained in the past as a result of

the injury was only $500.00, is Not Supported by Legally and/or

Factually Sufficient Evidence…………………………………………..52

[3]

6. The Jury’s Finding in Question 3(4), That the damages for the physical

impairment that, in reasonable probability, Guillermo Ochoa-Cronfel will

sustain in the future as a result of the injury was only $2,000.00, is Not

Supported by Legally and/or Factually Sufficient Evidence………...…53

7. The Jury’s Finding in Question 3(5), That the medical care expenses

Guillermo Ochoa-Cronfel incurred in the past as a result of the injury was

only $9,345.00, is Not Supported by Legally and/or Factually Sufficient

Evidence…………………………………………………………….…..55

8. The Jury’s Finding in Question 3(6), That the medical care expenses that,

in reasonable probability, Guillermo Ochoa-Cronfel will incur in the

future as a result of the injury was only $3,000.00, is Not Supported by

Legally and/or Factually Sufficient Evidence..…………………………56

9. The Jury’s Finding in Question 3(7), That the disfigurement sustained in

the past by Guillermo Ochoa-Cronfel as a result of the injury was subject

to a ZERO damage award, is Not Supported by Legally and/or Factually

Sufficient Evidence…………………………………………………57-58

10.The Jury’s Finding in Question 3(8), That the disfigurement that, in

reasonable probability, Guillermo Ochoa-Cronfel will sustain in the

future as a result of the injury was subject to a ZERO damage award, is

Not Supported by Legally and/or Factually Sufficient Evidence………59

11.The trial court’s sanctions order against Cronfel was an abuse of

discretion as Cronfel did not violate the spirit of the prior order

complained of in Defendant’s Motion that led to the sanctions order.....62

PRAYER….............................................................................................................66

Certificate of Compliance.......................................................................................68

Certificate of Service..............................................................................................68

Appendix.................................................................................................................69

[4]

INDEX OF AUTHORITIES

Page(s)

Cases

Akin, Gump, Strauss, Hauer & Feld, LLP v. Nat’l Dev. & Research Corp.,

299 S.W.3d 106 (Tex. 2009)………………………………………………..34

Aguilar v. Morales,

162 S.W.3d 825 (Tex.App.-El Paso 2005, pet. denied)…………………….62

Blake v. Dorado,

211 S.W.3d 429 (Tex.App.-El Paso 2006, no pet.)…………………………62

Cain v. Bain,

709 S.W.2d 175 (Tex. 1986)………………………………………………..28

Carney v. Roberts Inv. Co.,

837 S.W.2d 206 (Tex.App.-Tyler 1992, writ denied)……………….27, 28, 32

Ciguero v. Lara,

455 S.W.3d 744 (Tex.App.-El Paso 2015, no pet.)………………….29, 36, 37

Cire v. Cummings,

134 S.W.3d 835 (Tex. 2004)………………………………………………..62

City of Keller v. Wilson,

168 S.W.3d 802 (Tex. 2005)………………………………………………..27

Clone Component Distribs. Of Am., Inc. v. State,

819 S.W.2d 593 (Tex.App.-Dallas 1991, no writ)………………………….64

Coates v. Whittington,

758 S.W.2d 749 (Tex. 1988)………………………………………………..46

Doctor v. Pardue,

186 S.W.3d 4 (Tex.App.-Houston [1st Dist.]

2005, pet. denied)…………………………………...41, 50, 52, 53, 55, 58, 59

[5]

Doe v. Boys Clubs of Greater Dallas, Inc.,

907 S.W.2d 472 (Tex. 1995)………………………………………………..36

Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238 (Tex. 1985)………………………………………………..62

Electronic Data Sys. Corp. v. Tyson,

862 S.W.2d 728 (Tex.App.-Dallas 1993, no writ)…………………………65

Ford Motor Co. v. Ridgway,

135 S.W.3d 598 (Tex. 2004)………………………………………………..28

Ford Motor Company v. Tyson,

943 S.W.2d 527 (Tex.App.-Dallas 1997, orig. proceeding)..........................66

Golden Eagle Archery, Inc. v. Jackson,

116 S.W.3d 757 (Tex. 2003)………………………………………………..52

Goldman v. Torres,

341 S.W.2d 154 (Tex. 1960)………………………………………………..58

Hammerly Oaks, Inc. v. Edwards,

958 S.W.2d 387 (Tex. 1997)………………………………………………..33

Hicks v. Ricardo,

834 S.W.2d 587 (Tex.App.-Houston [1st Dist.] 1992, no writ)……………..50

Hill v. Clayton,

827 S.W.2d 570 (Tex.App.-Corpus Christi 1992, no writ.)…………………56

Hurst v. Kress & Company, et. al.,

489 F.2d 168 (5th Cir. 1974)…………………………………………29, 32-33

IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp.,

938 S.W.2d 440 (Tex. 1997).....................................................................64-65

In re Doe,

22 S.W.3d 601 (Tex.App.-Austin 2000, orig. proceeding)…………………46

[6]

In re Nance,

143 S.W.3d 506 (Tex.App.-Austin 2004, orig. proceeding)………….…….46

Jack B. Anglin Co., Inc. v. Tipps,

842 S.W.2d 266 (Tex. 1992).....................................................................64-65

Jones v. Wal-Mart Stores, Inc.,

870 F.2d 982 (5th Cir. 1989)……………………………………….………..50

Jordan v. City of Lubbock,

88 S.W.2d 560 (Tex.App.-Amarillo 1935, writ dism’d)…………….29, 32-33

Kahng v. Verity,

No. 01-07-00695-CV, 2008 WL 2930195 (Tex.App.-Houston [1st Dist.]

July 31, 2008, no pet.)(mem.op)……………………………………………37

Karagounis v. Property of Co. of America,

970 S.W.2d 761 (Tex.App.-Amarillo 1998, pet. denied)…………………..65

Kindred v. Con/Chem, Inc.,

650 S.W.2d 61 (Tex. 1983)…………………………………………………28

Koslow’s v. Mackie,

796 S.W.2d 700 (Tex. 1990)………………………………………………..62

Kroger Co. v. Elwood,

197 S.W.3d 793 (Tex. 2006)(per curiam)…………………………………..29

Kroger Co. v. Keng,

23 S.W.3d 347 (Tex. 2000)…………………………………………………29

Kugle v. DaimlerChrysler Corp.,

88 S.W.3d 355 (Tex.App.-San Antonio 2002, pet. denied)…………….64-65

Lopez v. La Madeleine of Texas, Inc.,

200 S.W.3d 854 (Tex.App.-Dallas 2006, no pet.)…………………….…….64

Lozano v. Lozano,

52 S.W.3d 141 (Tex. 2001)…………………………………………………33

[7]

McDonald v. Dankworth,

212 S.W.3d 336 (Tex.App.-Austin 2006, no pet.)………………27, 28-29, 33

Montes v. Pendergrass,

61 S.W.3d 505 (Tex.App.-San Antonio 2001, no pet.).......................29-30, 32

Nat’l Union Fire Ins. Co. v. Wyar,

821 S.W.2d 291 (Tex.App.-Houston [1st Dist.] 1991, no writ.)…………….55

Parker v. Highland Park, Inc.,

565 S.W.2d 512 (Tex. 1978)……………………………………………......29

Parkway Co. v. Woodruff,

901 S.W.2d 434 (Tex. 1995)…………………………………………….….41

Plas-Tex, Inc. v. U.S. Steel Corp.,

772 S.W.2d 442 (Tex. 1989)………………………………………………..28

Pool v. Ford Motor Co.,

715 S.W.2d 629 (Tex. 1986)………………………………………………..28

Prescott v. Kroger Co.,

877 S.W.2d 373 (Tex.App.-Houston [1st Dist.] 1994, writ denied)…………49

R.K. v. Ramirez,

887 S.W.2d 836 (Tex. 1994)……………………………………………46, 63

Randolph v. Walker,

29 S.W.3d 271 (Tex.App.-Houston [14th Dist.] 2000, pet. denied)…………65

Richards v. Allen, 402 S.W.2d 158 (Tex. 1966)………………………….…….64-65

Rosenboom Mach. & Tool, Inc. v. Machala,

995 S.W.2d 817 (Tex.App.-Houston [1st Dist.] 1999, pet. denied)………….50

Salter v. Galveston, H. & S.A. Ry. Co.,

285 S.W. 1112 (Tex.Civ.App. 1926)………………………………..29, 32-33

Standard Fire Ins. Co. v. Morgan,

745 S.W.2d 310 (Tex. 1987)………………………………………………..26

[8]

Stromburger v. Turley Law Firm,

251 S.W.3d 225 (Tex.App.-Dallas 2008, no pet.)………………………65-66

Sunbridge Healthcare Corp. v. Penny,

160 S.W.3d 230 (Tex.App.-Texarkana 2005, no pet.)………………………58

Texas & N.O.R. Co. v. Blake,

175 S.W.2d 683 (Tex.Civ.App.-Fort Worth 1943, writ ref’d)………….…..29

TransAmerican Natural Gas v. Powell,

811 S.W. 2d 913 (Tex. 1991)……………………………………………….66

Transit Mgmt. Co. of Laredo v. Sanchez,

886 S.W.2d 823 (Tex.App.-San Antonio 1994, no writ)……………………58

Turner v. Cruz,

No. 04-10-00313-CV, 2010 WL 5545392 (Tex.App.-San Antonio

Dec. 29, 2010, no pet.)(mem.op.)…………………………………………...37

United Parcel Service, Inc. and Leal v. Rankin,

No. 04-14-00494-CV, -- S.W.3d ----, ----, 2015 WL 3503814 (Tex.App.-

San Antonio June 3, 2015).............................................................................34

Vicknair v. Peters,

No. 12-13-00034-CV, 2014 WL 357082 (Tex.App.-Tyler

Jan. 31, 2014, no pet.)(mem.op.)……………………………………………37

W.C. LaRock, D.C., P.C. v. Smith,

310 S.W.3d 48 (Tex.App.-El Paso 2010, no pet.)…………………………..36

Walgreen-Texas Co. v. Shivers,

154 S.W.2d 625 (Tex. 1941)………………………………………………..29

Williamson Co. v. Voss,

284 S.W.3d 897 (Tex.App.-Austin 2009, no pet.)………………………29-30

Statutes, Rules and Other Authorities

Tex. Civ. Prac. & Rem. Code §18.001………………………………………….…56

[9]

Tex. R. Civ. P. 215…………......………………………………………......…..64-65

Robert W. Calvert, “No Evidence” & “Insufficient Evidence” Points of Error,

38 Tex. L. Rev. 361, 362-363 (1960)……………………………………27-28

[10]

STATEMENT OF THE CASE

Nature of the case: Plaintiff and Appellant Guillermo Ochoa-Cronfel

(“Cronfel”) was injured when Defendant and

Appellee Patrick C. Murray (“Murray”) lost control

of his dog (neither of whom Cronfel saw until after

his collision with the dog) while Cronfel was riding

his bicycle on a roadway in his neighborhood, and

the dog took off running and smashed into Cronfel’s

bicycle, sending Cronfel crashing into the hard

pavement of the road. Cronfel brought suit against

Murray alleging that Murray was negligent (and

negligent per se) because he lost control of his dog

which then smashed into Cronfel, causing serious

injuries to his right elbow, forearm, wrist, and hand.

The course of the The jury was instructed that ‘negligence’ means

proceedings below: failure to use ordinary care, that ‘ordinary care’

means that degree of care that would be used by a

person of ordinary prudence under the same or

similar circumstances, and that ‘proximate cause’

means a cause that was a substantial factor in

bringing about an event, and without which cause

such event would not have occurred. The jury found

that: (1) The negligence of both Cronfel and Murray

were proximate causes of Cronfel’s injuries; (2) The

percentage of responsibility of Cronfel and Murray

was 45% and 55%, respectively; and, (3) awarded

Plaintiff actual damages totaling $18,345.00.

The trial court’s On January 28, 2015, the trial court signed a

disposition of the judgment on the jury’s verdict that awarded

case: compensatory damages, prejudgment interest, and

costs of $14,699.22. On February 24, 2015, Plaintiff

filed a motion for new trial and to disregard the

jury’s findings, which was denied on April 1, 2015.

Plaintiff perfected this appeal by timely filing a

notice of appeal on April 24, 2015.

[11]

STATEMENT REGARDING ORAL ARGUMENT

This appeal involves the interplay of Plaintiff’s claims for negligence in a

personal injury matter and Defendant’s defensive claim of contributory negligence.

The Court should grant oral argument because in the instant case the trial court’s

error in failing to grant Plaintiff’s Motion for Judgment Notwithstanding the Verdict,

particularly with respect to the jury’s findings on contributory negligence, which

were based on legally and/or factually insufficient evidence of same, could have a

negative impact on the well-established standards for findings of contributory

negligence, inadvertently lowering the burden of proof facing a defendant claiming

contributory negligence as an affirmative defense.

[12]

ISSUES PRESENTED

Appellant presents the following issues for review:

ISSUE 1: The evidence is legally and/or factually insufficient to support the

jury’s answer to Question 1, and its finding that the negligence of Guillermo Ochoa-

Cronfel proximately caused the injury in question. The answer was against the great

weight and preponderance of the evidence, is manifestly unjust, and was inadequate

based on the greater weight and preponderance of the evidence presented at trial. As

a result, the trial court erred in denying Plaintiff’s Motion for Judgment

Notwithstanding Verdict and his Motion for New Trial.

ISSUE 2: The evidence is legally and/or factually insufficient to support the

jury’s answer to Question 2(1) and its finding that Patrick Murray was only 55%

responsible for the injury and the jury’s answer to Question 2(2) and its finding that

Guillermo Ochoa-Cronfel was 45% responsible for the occurrence. These answers

were against the great weight and preponderance of the evidence, are manifestly

unjust, and were inadequate based on the greater weight and preponderance of the

evidence presented at trial. As a result, the trial court erred in denying Plaintiff’s

Motion for Judgment Notwithstanding Verdict and his Motion for New Trial.

ISSUE 3: The evidence is legally and/or factually insufficient to support the

jury’s answer to Question 3(1) and its finding that the damages for the physical pain

and mental anguish sustained in the past by Guillermo Ochoa-Cronfel as a result of

the injury was only $2,500.00. The answer was against the great weight and

preponderance of the evidence, is manifestly unjust, and was inadequate based on

the greater weight and preponderance of the evidence presented at trial. As a result,

the trial court erred in denying Plaintiff’s Motion for Judgment Notwithstanding

Verdict and his Motion for New Trial. Further, the trial court erred in overruling

Plaintiff’s objection to the introduction of evidence regarding his past surgeries as

to this damage claim, on relevance grounds.

ISSUE 4: The evidence is legally and/or factually insufficient to support the

jury’s answer to Question 3(2) and its finding that the damages for the physical pain

and mental anguish that, in reasonable probability, will be sustained by Guillermo

Ochoa-Cronfel in the future was only $1,000.00. The answer was against the great

weight and preponderance of the evidence, is manifestly unjust, and was inadequate

based on the greater weight and preponderance of the evidence presented at trial. As

a result, the trial court erred in denying Plaintiff’s Motion for Judgment

Notwithstanding Verdict and his Motion for New Trial.

[13]

ISSUE 5: The evidence is legally and/or factually insufficient to support the

jury’s answer to Question 3(3) and its finding that the damages for physical

impairment sustained in the past was only $500.00. The answer was against the

great weight and preponderance of the evidence, is manifestly unjust, and was

inadequate based on the greater weight and preponderance of the evidence presented

at trial. As a result, the trial court erred in denying Plaintiff’s Motion for Judgment

Notwithstanding Verdict and his Motion for New Trial.

ISSUE 6: The evidence is legally and/or factually insufficient to support the

jury’s answer to Question 3(4) and its finding that the damages for physical

impairment that, in reasonable probability, Guillermo Ochoa-Cronfel will sustain in

the future was only $2,000.00. The answer was against the great weight and

preponderance of the evidence, is manifestly unjust, and was inadequate based on

the greater weight and preponderance of the evidence presented at trial. As a result,

the trial court erred in denying Plaintiff’s Motion for Judgment Notwithstanding

Verdict and his Motion for New Trial.

ISSUE 7: The evidence is legally and/or factually insufficient to support the

jury’s answer to Question 3(5) and its finding that the damages for medical care

expenses incurred in the past was only $9,345.00. The answer was against the great

weight and preponderance of the evidence, is manifestly unjust, and was inadequate

based on the greater weight and preponderance of the evidence presented at trial. As

a result, the trial court erred in denying Plaintiff’s Motion for Judgment

Notwithstanding Verdict and his Motion for New Trial.

ISSUE 8: The evidence is legally and/or factually insufficient to support the

jury’s answer to Question 3(6) and its finding that the damages for medical care

expenses that, in reasonable probability, Guillermo Ochoa-Cronfel will incur in the

future was only $3,000.00. The answer was against the great weight and

preponderance of the evidence, is manifestly unjust, and was inadequate based on

the greater weight and preponderance of the evidence presented at trial. As a result,

the trial court erred in denying Plaintiff’s Motion for Judgment Notwithstanding

Verdict and his Motion for New Trial.

ISSUE 9: The evidence is legally and/or factually insufficient to support the

jury’s answer to Question 3(7) and its finding that the damages for disfigurement

sustained in the past was $0.00. The answer was against the great weight and

preponderance of the evidence, is manifestly unjust, and was inadequate based on

the greater weight and preponderance of the evidence presented at trial. As a result,

[14]

the trial court erred in denying Plaintiff’s Motion for Judgment Notwithstanding

Verdict and his Motion for New Trial.

ISSUE 10: The evidence is legally and/or factually insufficient to support the

jury’s answer to Question 3(8) and its finding that the damages for disfigurement

that, in reasonable probability, Guillermo Ochoa-Cronfel will sustain in the future

was only $0.00. The answer was against the great weight and preponderance of the

evidence, is manifestly unjust, and was inadequate based on the greater weight and

preponderance of the evidence presented at trial. As a result, the trial court erred in

denying Plaintiff’s Motion for Judgment Notwithstanding Verdict and his Motion

for New Trial.

ISSUE 11: The trial court’s monetary sanctions order against Cronfel was an abuse

of discretion and should be vacated, or in the alternative, reduced.

[15]

STATEMENT OF FACTS

On the evening of July 23, 2009, around 6:30 P.M., Appellant, Guillermo

Ochoa-Cronfel (“Cronfel”) was enjoying a bike ride on the roads of his

neighborhood in Travis Country, a subdivision off of Southwest Parkway in South

Austin. IV RR 122-23. At or around that same time, Appellee, Patrick Murray

(“Murray”) went for a walk with his dog, Magnum. IV RR 202. Sometime between

6:30 P.M. and 7:30 P.M., the paths of Cronfel and Magnum crossed, arising in the

incident and injury that were the subject of the underlying lawsuit. IV RR 125-28

(Cronfel), and IV RR 208-213 (Murray). The picture below shows the roadway in

the neighborhood where the incident took place. 1

1

VII RR 7, Plaintiff’s Ex. 1.

[16]

However, at the time of the incident at issue, there were two or more cars

parked along the right side of the roadway, and Cronfel was riding his road bike in

the direction the cars were parked, approximately 3-4 feet to the left of the cars, to

avoid the possibility of being hit by an open (or opening) car door. IV RR 125. Prior

to that July, 2009 evening, Cronfel estimated that he had ridden that very route, one

of his “usual” and “familiar” routes, hundreds of times from 1995 to the time of the

incident. IV RR 123.

As Cronfel was riding up the roadway, Murray was walking Magnum along

the sidewalk, until Magnum led him at least twenty feet off of the sidewalk into a

neighbor’s yard, past a number of trees, and behind a large rock, where the dog

relieved itself. IV RR 202-07. Up until that time, Murray had been holding

Magnum’s leash in his hand during their walk. IV RR 209-10. However, after the

dog had relieved itself, Murray dropped the leash and stepped on it while picking up

his dog’s waste. IV RR 209. It was at that time that Magnum barked and took off

from his control, with Murray not seeing what he was barking at or where he was

going, and doing nothing to try and stop him. IV RR 212.

Contemporaneous with Magnum’s nature stop, Cronfel approached that same

area of the neighborhood on the adjacent roadway. IV RR 125. Cronfel did not see

Murray or Magnum, as he was focused on his bike ride, being careful to avoid

obstructions to the side of the road, and what he was doing, and he began to ramp up

[17]

(pick up speed) in order to get in his exercise. IV RR 125-27. It was then that

Cronfel passed by the edge of one of the cars parked along the side of the road, and

Magnum shot out from behind the car, colliding with the front wheel of his bike. IV

RR 126. This collision resulted in Cronfel being thrown from his bike, at speed, and

into the pavement. IV RR 126-28.

Cronfel was wearing his cycling helmet at the time of the incident. IV RR

127. Notwithstanding same, Cronfel put his right arm up in front of his face as he

was thrown toward the road surface. IV RR 126. As a result, Cronfel’s right arm,

and specifically in order; his right wrist, his right forearm, his right elbow, and then

his right shoulder, bore the brunt of his impact with the pavement. IV RR 126-27.

After hitting the pavement and sliding along the surface, Cronfel came to rest laying

in the street, in great pain, scared, and dazed. IV RR 127-28.

By that time, Murray had made his way over to the scene of the accident, and

while what exactly transpired between Murray and Cronfel at that point is in some

dispute, what is clear is that their interaction (such as it was) was brief, and then

Murray left the area to find and tend to his dog, leaving Cronfel to his own devices,

and the good will of his neighbors.2 IV RR 128-29. Fortunately for Cronfel, his

2

Cronfel testified that Murray tried to help him up by pulling on his then-injured arm, letting him

go when Cronfel yelped in pain, and saying something to him (though Cronfel didn’t know what

it was) then leaving. IV RR 128-29. Murray testified that he asked Cronfel how he was doing,

asked him if he wanted to move, and then left to go after his dog as he was concerned about the

dog having been through a traumatic event. IV RR 214-15.

[18]

other neighbors did, in fact, exhibit a generous good will towards him. A number of

people gathered around him, trying to assist him as he sought to regain his bearings.

IV RR 129. A man and his wife assisted Cronfel into their nearby house, where they

got him some water, ice, and Ibuprofen, and the lady, who turned out to be a nurse,

suggested to Cronfel that he would need to go see a doctor for his injuries. IV RR

129-30. These neighbors took care of Cronfel for a while, and eventually loaded

Cronfel’s bike into their truck, took him home, and assisted him into his house. IV

RR 130.

After enduring an extremely restless night, in which he was in pain for the

duration, Cronfel visited his general practitioner, Dr. Paul Keinarth, the next day to

get a doctor’s assessment of his injuries. IV RR 132. Cronfel presented to Dr.

Keinarth with pain in his right shoulder, elbow, wrist, and hand, with swelling in his

wrist and hand as well as a limited range of movement. 3 Dr. Keinarth sent Cronfel

to Austin Radiological Association to get x-rays of his injured arm that very day,

and those x-rays demonstrated a fracture in the radial bone of Cronfel’s forearm,

near the elbow. IV RR 133-34, and VII RR 21-22, Plaintiff’s Ex. 2. Dr. Keinarth

then referred Cronfel to Dr. Carey Windler at Austin Sports Medicine for further

evaluation. IV RR 134.

3

IV RR 132-33, and VII RR 17-20, Plaintiff’s Ex. 2.

[19]

Cronfel saw Dr. Windler for the first time, regarding the injuries suffered in

the incident concerned herein, within a week of having seen Dr. Keinarth, on July

29, 2009. IV RR 135. At that time, Dr. Windler informed Cronfel that there was a

possibility the fracture near the elbow would require extensive surgery, including

sawing off the head of the radius bone and replacing it with “a fake one”. IV RR

135. However prior to choosing that course of action, Dr. Windler put Cronfel in a

sling for a couple of weeks, pending a decision on whether or not the described

extensive surgery would be necessary. IV RR 135-36. After a couple of weeks in

the sling, Mr. Cronfel went back to Dr. Windler and was informed that he would not

need the surgery that had been discussed on the radial fracture, but his arm did have

to be fit with a plastic cast (similar to a fiberglass or plaster cast), which he was in

for something like four to six weeks. IV RR 136. Over the course of the next few

months, leading up to another visit with Dr. Windler in late October, 2009, Cronfel’s

radial fracture improved, but all the while the pain in his right wrist continued,

unabated. 4

Subsequently, Cronfel began trying to resume his normal activities with pain

as a guide to what he should (or should not) engage in, but the right wrist continued

to bother him, and on June 14, 2010 he returned to Dr. Windler, who took that

opportunity to review the July, 2009 x-rays of Cronfel’s wrist. IV RR 140-41. In

4

IV RR 136-40, and VII RR 24-36, Dr. Windler’s records, admitted as Plaintiff’s Ex. 3.

[20]

that review, and corresponding examination, Dr. Windler observed widening of the

scapholunate interval with a possible fracture of the lunate in Cronfel’s right wrist

as another aspect of his July, 2009 injuries. 5 Dr. Windler then set Cronfel up for

additional imaging (specifically, an MR arthrogram) at River Ranch Radiology,

which took place on June 22, 2010. IV RR 142-43. This additional imaging

confirmed a large tear of the scapholunate ligament, degenerative changes in the

scaphoid, and a possible fracture off of the triquetrum. IV RR 144-46, and VII RR

25 & 30-34. At that point, Dr. Windler sent Cronfel to a hand specialist, Dr. Robert

Walters. IV RR 146.

On August 4, 2010, Dr. Walters examined Cronfel and discussed ulna impact

syndrome and its related surgical treatment with him, as a potential solution to the

pain and problems Cronfel continued to have with his right hand. IV RR 146-47.

Dr. Walters explained that the procedure would involve breaking Cronfel’s ulna,

sawing off a piece of it to shorten it in order to make it equal to the radius, and putting

two metal plates with screws into the arm. IV RR 147-48. Unfortunately, Dr.

Walters passed away during the time he was treating Cronfel in 2010. IV RR 157-

58. At that point Dr. Windler’s office referred Cronfel to Orthopaedic Specialists of

Austin and Dr. Gregg Vagner. IV RR 158. After seeing Dr. Vagner for a brief time

Cronfel sought another referral, and was sent to Dr. Ira Lown. IV RR 159-60.

5

IV RR 141-42, and VII RR 26.

[21]

Cronfel first visited Dr. Lown on August 11, 2011. IV RR 160. After

reviewing Cronfel’s medical records from prior providers, and examining and

treating Cronfel himself, it was Dr. Lown’s medical opinion that Cronfel’s injuries,

including the ulna impact syndrome and tear of the scapholunate ligament were a

result of the July 23, 2009 incident with Murray’s dog, Magnum. 6 Dr. Lown

counseled a course of physical therapy, medication, and medical treatments as a

means to put off the extreme surgical approach described above for as long as

possible. 7 Cronfel continued with this treatment approach for over two years. VII

RR 106-218. Finally, on September 11, 2014 Cronfel underwent the ulna shortening

procedure, recommended and performed by Dr. Lown. 8 The picture at the top of the

next page shows the scar left on Cronfel’s forearm after the procedure. 9

6

IV RR 35-46 (Dr. Lown).

7

IV RR 45-46 (Dr. Lown), IV RR 160 (Cronfel), and VII RR 103-05, Plaintiff’s Ex. 6.

8

IV RR 67 (Dr. Lown), IV RR 163 (Cronfel), and VII RR 267-369, Plaintiff’s Ex. 8.

9

VII RR 8, Plaintiff’s Ex. 1.

[22]

Unfortunately, the pain and impairment the injuries have caused Cronfel were

not completely resolved by the ulna shortening surgery, and he still faces a four-

corner fusion surgery on his wrist at some point in the future that will hopefully

alleviate some (if not all) of the pain, but which will still leave him with some level

of impairment in his right wrist and hand for the rest of his life.10

This negligence case was tried to a Travis County jury over three days. CR

495-503, and Supp. CR 3-6. Throughout the trial – including both the opening

statement (IV RR 27) and closing argument (V RR 26 & 36) – Defendant’s counsel

10

IV RR 68-74 & 82-86 (Dr. Lown), and IV RR 168-69 (Cronfel).

[23]

argued, regarding Cronfel’s own alleged negligence having contributed to his

injuries, that he was “revving up” in his bike ride at the time of the incident.

Defendant’s counsel further argued (incorrectly) that as a bicycle rider, Cronfel

actually had a “heightened duty” of proper lookout to the general public, as he was

“up on two wheels”, i.e., higher. V RR 36.

The jury ultimately returned a verdict that concluded; (1) the negligence of

both Murray and Cronfel were a proximate cause of the incident; and, (2) the

percentage of responsibility of Murray and Cronfel was 55% and 45%, respectively.

CR 498-99. The jury awarded Cronfel actual damages totaling $18,345.00. CR 500-

01. Judgment was entered on the verdict, taking into account the proportionate

responsibilities found by the jury, despite the fact that Cronfel filed a Motion for

JNOV and a Motion for New Trial, and this appeal followed.11

Finally, Appellant also complains herein of an Order granting Defendant’s

Motion for Sanctions against Cronfel. On October 28, 2014, prior to trial, the

Honorable District Judge Gus J. Strauss heard Defendant’s Motion for Sanctions

(and its Supplement) requesting sanctions against Cronfel for an alleged violation of

a prior Order from the Court, dated September 18, 2014, requiring Cronfel to

11

Supp CR 3-6, CR 519-21, and CR 527-34.

[24]

produce a signed authorization releasing Dr. Lown’s complete medical chart for

Cronfel by September 19, 2014. 12 13

SUMMARY OF THE ARGUMENT

Under the uncontroverted facts of the incident concerned herein, no

reasonable jury could conclude that Cronfel’s actions were negligent, that such

actions proximately caused this incident and/or his attendant injuries, or that Cronfel

was 45% responsible for the incident. These facts include that Cronfel was focused

on what he was doing (i.e., riding his bicycle on the roadway, being careful to avoid

obstructions to the side of the road), that he did not see Murray or his dog until seeing

the dog at the instant he was slamming into Cronfel’s bicycle, and that he could have

done nothing to have avoided the incident. IV RR 126-27 & 183-85. Thus, the trial

court erred in denying Plaintiff’s Motion for Judgment Notwithstanding Verdict and

his Motion for New Trial.

Further, under the uncontroverted facts of the injuries sustained by Cronfel

as a result of the incident, and the medical treatment related to such injuries (both

past and future), no reasonable jury could conclude that as a result of his injuries; (i)

$2,500.00 would fairly and reasonably compensate Cronfel for physical pain and

12

Judge Strauss was sitting as a Visiting Judge and heard this matter as part of the Travis County

District Court’s rotating central docket.

13

II RR 1-26 (Transcript of Hearing on Sanctions), CR 176-364 (Defendant’s Motion &

Supplement), CR 384-408 (Plaintiff’s Brief Against Sanctions), CR 409-12 (Defendant’s

Objections to Plaintiff’s Brief), and CR 413 (Order).

[25]

mental anguish sustained in the past; (ii) $1,000.00 would fairly and reasonably

compensate Cronfel for physical pain and mental anguish that, in reasonable

probability, he would sustain in the future; (iii) $500.00 would fairly and reasonably

compensate Cronfel for physical impairment sustained in the past; (iv) $2,000.00

would fairly and reasonably compensate Cronfel for physical impairment that, in

reasonable probability, he will sustain in the future; (v) $9,345.00 would fairly and

reasonably compensate Cronfel for medical care expenses incurred in the past; (vi)

$3,000.00 would fairly and reasonably compensate Cronfel for medical care

expenses that, in reasonable probability, he would incur in the future; (vii) $0.00

would fairly and reasonably compensate Cronfel for disfigurement sustained in the

past; and, (viii) $0.00 would fairly and reasonably compensate Cronfel for

disfigurement that, in reasonable probability, he will sustain in the future. These

facts include Cronfel’s medical bills admitted into evidence, as well as the testimony

of both Cronfel and Dr. Lown. Thus, the trial court erred in denying Plaintiff’s

Motion for Judgment Notwithstanding Verdict and his Motion for New Trial.

Finally, the trial court abused its discretion when it sanctioned Cronfel for

violating a prior discovery order.

ARGUMENT AND AUTHORITIES

1. The Jury’s Finding in Question 1, That the Negligence of Guillermo Ochoa-

Cronfel Proximately Caused the Injury in Question, is Not Supported by

Legally and/or Factually Sufficient Evidence.

[26]

2. The Jury’s Finding in Question 2, That Guillermo Ochoa-Cronfel was 45%

Responsible for Causing the Injury in Question, is Not Supported by Legally

and/or Factually Sufficient Evidence.

The evidence is legally and factually insufficient to support the jury’s finding

in Question 1 that the negligence of Guillermo Ochoa-Cronfel proximately caused

the injury in question, and such finding is against the great weight of the evidence

and is manifestly unjust. I CR 498.

A legal sufficiency challenge is also known as a ‘no evidence’ challenge and,

“In deciding a ‘no evidence’ point, an appellate court considers only the evidence,

and reasonable inferences therefrom, which, when viewed in the most favorable

light, support the jury’s answers, rejecting and disregarding all other evidence and

reasonable inferences therefrom.” Carney v. Roberts Inv. Co., 837 S.W.2d 206, 208

(Tex.App.-Tyler 1992, writ denied), citing Standard Fire Ins. Co. v. Morgan, 745

S.W.2d 310, 311 (Tex. 1987). A legal sufficiency challenge should be sustained,

“…if the record reveals: (a) the complete absence of a vital fact; (b) the court is

barred by rules of law or of evidence from giving weight to the only evidence offered

to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a

scintilla; or (d) the evidence establishes conclusively the opposite of the vital fact.”

McDonald v. Dankworth, 212 S.W.3d 336, 340 (Tex.App.-Austin 2006, no pet.),

citing City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005) (citing Robert W.

Calvert, “No Evidence” & “Insufficient Evidence” Points of Error, 38 Tex. L. Rev.

[27]

361, 362-363 (1960)). Moreover, “When the evidence offered to prove a vital fact

is so weak as to do no more than create a mere surmise or suspicion of its existence,

the evidence is less than a scintilla and, in legal effect, is no evidence.” McDonald,

212 S.W.3d at 339, citing Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.

2004) (citing Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

A factual sufficiency, or “insufficient evidence” challenge, requires the

reviewing court to, “…consider, weigh, and examine all of the evidence in the

record, both supporting and against the finding, to decide whether the verdict should

be set aside.” McDonald, 212 S.W.3d at 339, citing Plas-Tex, Inc. v. U.S. Steel

Corp., 772 S.W.2d 442, 445 (Tex. 1989); Pool v. Ford Motor Co., 715 S.W.2d 629,

635 (Tex. 1986); See also, Carney, 837 S.W.2d at 208. A factual sufficiency

challenge should be sustained, “…only if the evidence that supports the jury finding

is so weak as to be clearly wrong and manifestly unjust.” McDonald, 212 S.W.3d

at 339, citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); See also, Carney, 837

S.W.2d at 208 (“A reversal is required if this court concludes that the verdict is so

against the great weight and preponderance of evidence as to be manifestly unjust.”)

Under Texas law, “ ‘[t]he standards and tests for determining contributory

negligence ordinarily are the same as those for determining negligence,’ and when

contributory negligence is submitted, ‘the burden of proof is on the defendant to

prove the defense by a preponderance of the evidence.’ ” McDonald, 212 S.W.3d at

[28]

340, citing Carney, 837 S.W.2d at 208. Further, “…contributory negligence is not

established by evidence which is equally consistent with the exercise of the care by

the plaintiff, or where the inference of due care is just as reasonable as is the

inference of the absence thereof.” Jordan v. City of Lubbock, 88 S.W.2d 560, 563

(Tex.App.-Amarillo 1935, writ dism’d), citing Salter v. Galveston, H. & S.A. Ry.

Co., 285 S.W. 1112 (Tex.Civ.App. 1926); See also, Hurst v. Kress & Company, et.

al., 489 F.2d 168, 171-72 (5th Cir. 1974). That is, “Contributory negligence

contemplates an injured person's failure to use ordinary care in regard to his or her

own safety.” Kroger Co. v. Keng, 23 S.W.3d 347, 351 (Tex. 2000), citing Parker v.

Highland Park, Inc., 565 S.W.2d 512, 520 (Tex. 1978); Walgreen-Texas Co. v.

Shivers, 154 S.W.2d 625, 630 (Tex. 1941); Texas & N.O.R. Co. v. Blake, 175 S.W.2d

683, 685 (Tex.Civ.App.-Fort Worth 1943, writ ref’d).

In order to establish negligence (and thus, contributory negligence), “…a

party must establish a duty, a breach of that duty, and damages proximately caused

by the breach.” Ciguero v. Lara, 455 S.W.3d 744, 748 (Tex.App.-El Paso 2015, no

pet.), citing Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006)(per curiam).

In the instant case, the duty(ies) that could reasonably be ascribed to Appellant,

which Appellee was required to prove Appellant breached by a preponderance of the

evidence, were; (i) the general duty to exercise ordinary care; and, (ii) the general

duty to keep a proper lookout. See Williamson Co. v. Voss, 284 S.W.3d 897, 902

[29]

(Tex.App.-Austin 2009, no pet.), and Montes v. Pendergrass, 61 S.W.3d 505, 509

(Tex.App.-San Antonio 2001, no pet.).

The evidence presented at trial in this matter regarding the incident that led to

Appellant’s injury, and the negligence (or lack thereof) of Appellant and/or Appellee

was simple and straightforward. The only factual testimony regarding the incident

came from Mr. Ochoa-Cronfel and Mr. Murray. Both men testified that the incident

took place on the evening of July 23, 2009, somewhere between 6:00 and 7:30 P.M.

IV RR 122-23 (Ochoa-Cronfel) & IV RR 202 & 208 (Murray).

A review of the record demonstrates only the following evidence, and

reasonable inferences therefrom, which, when viewed in the most favorable light,

could remotely support the jury’s answers to Questions Nos. 1 and/or 2:

1. Cronfel was “revving up”, i.e., picking up speed on his bicycle ride in an

attempt to get a good workout in, at or immediately before the collision with

Murray’s dog;14

2. Cronfel was focused on what he was doing, i.e., riding his bicycle on the

roadway, being careful to avoid obstructions to the side of the road; 15 and,

14

IV RR 126-27, 180, 182, and 185;

15

IV RR 126.

[30]

3. Cronfel did not see Murray or his dog standing twenty or more feet off of the

roadway, past a number of trees and a big, big rock, and through two or more cars

lining the side of the road, before the collision with Murray’s dog. 16

The foregoing evidence, even when viewed in the light most favorable to the

jury’s finding of contributory negligence against Cronfel, falls well short of meeting

the standard. Moreover, no one testified that Cronfel was doing anything wrong or

riding his bicycle negligently. In fact, Murray testified that he knew next to nothing

about the circumstances of the incident:

Q: Okay. So it’s your testimony that you didn’t see Mr. Cronfel biking

down the street?

A: Not at all, no, sir.

--IV RR 208.

Q: So the next thing you know your dog barks and takes off; is that right?

A: I don’t know if he barked or not.

Q: You don’t know if he barked? Didn’t you say in your deposition that

he barked and then he took off?

A: I don’t know.

Q: Did you – did you see your dog take off?

A: I did not.

Q: All right. And since you read your deposition on Sunday, the question

was asked of you, But you didn’t see him take off? You answered, No,

16

IV RR 124-26, 180-182 (Cronfel); IV RR 203-06 (Murray); and, VII RR 7, Plaintiff’s Ex. 1.

[31]

I mean, I just heard him take off. I mean that – that’s kind of a bark

and takeoff type – type – type of action. Do you recall that?

A: If that’s what it says right there, then I don’t disagree.

Q: All right. Did – did you know what the dog was barking at?

A: No, sir.

Q: When he immediately takes off, what action do you do to try and stop

him?

A: I didn’t – I didn’t do anything. I mean, when I turned around is when

the accident occurred.

--IV RR 211-12.

Q: Now, do you have any knowledge of any facts that Mr. Cronfel did

anything wrong in this collision with your dog?

A: I don’t know what he did because I did not see him.

Q: Okay. So you don’t have any facts to base on that –

A: I don’t know. I did not see what he was doing.

--IV RR 217.

The duty to keep a proper lookout, “…encompasses the duty to observe, in a

careful and intelligent manner, traffic and the general situation in the vicinity,

including speed and proximity of other vehicles as well as rules of the road and

common experience.” Montes, 61 S.W.3d at 509, citing Carney, 837 S.W.2d at 211.

Further, “…contributory negligence is not established by evidence which is equally

consistent with the exercise of care by plaintiff, or where the inference of due care

is just as reasonable as is the inference of the absence thereof.” Jordan, 88 S.W.2d,

[32]

at 563, citing Salter, 285 S.W., at 1112; see also, Hurst, 489 F.2d, at 172. This

demonstrates the application of the ‘equal inference rule’, to cases involving

negligence and/or contributory negligence circumstances. The ‘equal inference rule’

states, “…a jury may not reasonably infer an ultimate fact from meager

circumstantial evidence, ‘which could give rise to any number of inferences, none

more probable than another.’” Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001),

citing Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997). Here,

even when reviewing the evidence of Cronfel’s “negligence” in the light most

favorable to the jury’s findings, it is just as reasonable (if not more so) to infer that

Cronfel was keeping a proper lookout than that he was not.

There is no evidence, or no more than a scintilla of evidence, that Cronfel was

not keeping a proper lookout. Again, a mere surmise or suspicion or speculation of

evidence of Cronfel’s negligence, is less than a scintilla, and is really no evidence at

all. McDonald, 212 S.W.3d at 339 (internal citations omitted). And here, the

evidence of Cronfel’s negligence was so threadbare that Defendant’s counsel

actually invited the jury to do just that…to surmise, or speculate, as to what the

evidence could have or should have shown, not what it actually did show:

Mr. Payne: And so we have to ask ourselves, what – could Mr. Cronfel have

done something to have avoided this? Could he have not revved

up? Could he have applied his brakes? Could he have swerved?

Did he, in fact, have an opportunity to have avoided this

accident?

--V RR 26.

[33]

“Evidence does not exceed a scintilla if it is so weak as to do no more than create a

mere surmise or suspicion that the fact exists.” United Parcel Service, Inc. and Leal

v. Rankin, No. 04-14-00494-CV, -- S.W.3d ----, ----, 2015 WL 3503814, at *3

(Tex.App.-San Antonio June 3, 2015), citing Akin, Gump, Strauss, Hauer & Feld,

LLP v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 115 (Tex. 2009).

There was no evidence presented that Cronfel did, or could have done, any of

those things, so the finding that he was contributorily negligent was founded on mere

speculation, was supported by no more than a scintilla of evidence, or, in fact, the

opposite (that Cronfel was not negligent in any respect) was conclusively established

by the evidence presented. That is, there was not legally sufficient evidence from

which a jury could reasonably have found that Cronfel violated any duty, such that

he could be found contributorily negligent.

Assuming arguendo one thought it were reasonable to infer that Cronfel had

breached a duty such that he could be found contributorily negligent, there is

likewise a lack of any evidence that such negligence was a proximate cause of the

incident concerned herein. As noted above, Murray testified that he never saw

Cronfel until after the collision between Cronfel and Murray’s dog, and that he didn’t

see what happened. IV RR 208, 211-212 & 217. Cronfel testified on direct

examination that there was nothing he could have done to have avoided the incident:

[34]

Q: As you approached these cars over by the curb, did you see the

defendant or his dog at all?

A: No, I didn’t see either of them.

…

Q: And you didn’t see the defendant or his dog on the sidewalk or anything

like that?

A: No, I – I never saw them.

--IV RR 125.

Q: Looking back at – at the scene of – of this incident, were the cars

obscuring your view of the defendant and his dog, do you think?

A: I did not see them. I think that that would be the case.

Q: Did you have any time to react or avoid the dog?

A: I was – the dog was on top of me. I had no time to react, no.

--IV RR 126-27.

And under cross-examination, Cronfel maintained this testimony:

Q: Do you know the distance separating you and Magnum, the dog, as you

noticed that something may occur?

A: He was on top of me when I noticed. It was already – he was already

on top of me practically.

Q: Now, when you say on top of you, you don’t literally mean on you?

A: No. He was – he came out from behind a car, or, you know, he was

coming out from behind a car. When I noticed him, he was already

almost making contact with the bike. It was a very short distance.

--IV RR 183-84.

[35]

Q: Okay. As you’re going pretty fast and revving up, the dog has an

opportunity to travel four feet into the side of your wheel, three feet out

from a parked car as you traveled up this roadway?

A: You know, you can come up with numbers. All I can tell you is that he

came into my bike from the side, and I had no chance to react or avoid

him.

Q: And you agree you did not react; you did not shift to the left or the right;

brake; do anything to avoid the accident/

A: I had no chance.

Q: I’m sorry?

A: I had no chance.

--IV RR 185.

“Proximate cause consists of two substantive elements – cause in fact

and foreseeability. W.C. LaRock, D.C., P.C. v. Smith, 310 S.W.3d 48,

55-56 (Tex.App.-El Paso 2010, no pet.). ‘Cause in fact is not shown if

the defendant’s negligence did no more than furnish a condition which

made the injury possible.’ Doe v. Boys Clubs of Greater Dallas, Inc.,

907 S.W.2d 472, 477 (Tex. 1995). ‘The evidence must go further, and

show that such negligence was the proximate, and not the remote, cause

of resulting injuries and justify the conclusion that such injury was the

natural and probable result thereof.’ Id.”

-- Ciguero, 455 S.W.3d, at 748.

While Ciguero dealt with an adverse no-evidence summary judgment, the only

evidence presented as to the “motorist’s” negligence being a proximate cause of the

incident in question, was the motorist’s own testimony that he could not have

avoided the incident, just like the testimony of Cronfel in the instant case. The

Ciguero court examined three other, similar cases involving motorists’ duty to keep

a lookout and proximate cause. In each of those cases, the only evidence that a

[36]

motorist’s negligence was subsequently the proximate cause of the incident

complained of, was the motorist’s testimony that he did not have time to react and/or

could not have avoided the incident in question. About this circumstance the

Ciguero court held, “A driver’s testimony that a collision occurred concurrent with

or immediately preceding his recognition of a road hazard, standing alone,

constitutes no evidence on the issue of proximate cause because it does not raise a

fact issue on whether the accident could have been avoided.” Ciguero, 455 S.W.3d,

at 749. See also, Kahng v. Verity, No. 01-07-00695-CV, 2008 WL 2930195, at *1,

5 (Tex.App.-Houston [1st Dist.] July 31, 2008, no pet.)(mem.op); Vicknair v. Peters,

No. 12-13-00034-CV, 2014 WL 357082, at *4 (Tex.App.-Tyler Jan. 31, 2014, no

pet.)(mem.op.); and, Turner v. Cruz, No. 04-10-00313-CV, 2010 WL 5545392, at

*4 (Tex.App.-San Antonio Dec. 29, 2010, no pet.)(mem.op.). As in Ciguero, in the

instant case, Cronfel’s testimony alone, “…creates no more than a surmise or

suspicion that any breach of the duty to…keep a proper lookout was a proximate

cause of the collision.” Ciguero, 455 S.W.3d, at 749.

There was no evidence presented that Cronfel could have done anything to

have avoided the incident, so the finding that any of Cronfel’s alleged contributory

negligence was a proximate cause of the incident was founded on mere speculation,

was supported by no more than a scintilla of evidence, or, in fact, the opposite (that

Cronfel was not negligent in any respect) was conclusively established by the

[37]

evidence presented. That is, Murray did not even attempt to prove, much less prove,

that his dog would not have collided with Cronfel had Cronfel done something,

anything differently. Thus, there was not legally sufficient evidence from which a

jury could reasonably have found that Cronfel’s alleged contributory negligence, if

any, could have been a proximate cause of the incident and injuries concerned herein.

If Appellant’s legal sufficiency challenge to the jury’s findings of his

contributory negligence and/or its proximate cause of the incident/injuries in

question demonstrates that there is not even a scintilla (and certainly, no more than

a scintilla) of evidence to support those findings, then Appellant’s factual sufficiency

challenge surely shows that these findings were clearly wrong and manifestly unjust.

As noted above, the only evidence from which the jury could have inferred Cronfel’s

alleged contributory negligence, or its proximate cause of the incident and injuries,

was Cronfel’s own testimony that he was “revving up”, focused on what he was

doing, and did not see Murray or his dog until at (or immediately preceding) the

collision.17 The additional evidence regarding the incident, consisting of Murray’s

testimony, affirmatively shows that the incident was caused solely by Murray’s

losing control of his dog, and failure (or inability) to do anything to regain control

of his dog prior to its violent collision with Cronfel. IV RR 210-13. That is, there

was not factually sufficient evidence from which a jury could reasonably have found

17

See FNs 14-16, supra.

[38]

that Cronfel’s alleged contributory negligence, if any, proximately caused the

incident and injuries concerned herein.

This case is very like the Carney case, noted above, where the Tyler Court of

Appeals properly considered the lack of evidence after a jury finding of contributory

negligence and reversed and remanded. Here, no one testified that Cronfel was

doing anything wrong or riding his bike negligently. The only evidence remotely

related to negligence was Murray’s own testimony that he lost (or in fact,

relinquished) control of his dog, which then took off so fast that by the time Murray

had stood up and turned to look, it had collided violently with Cronfel, sending him

crashing at speed into the hot July pavement. There is no evidence and/or

insufficient evidence to support the jury’s answers to questions 1, 2(1) and 2(2), thus

the jury’s answers to those questions were based on nothing more than pure

speculation, surmises, or suspicions, and not on the evidence. Further, the trial court

erred when it denied Plaintiff’s Motion for Judgment Notwithstanding the Verdict

on his own negligence/contributory negligence, and this Court should do as the

Carney court did. These issues should be sustained, the judgment should be

reversed, and this Court should remand the cause to the trial court for a new trial.

To do otherwise would lower the burden on defendants claiming contributory

negligence as an affirmative defense, to well below the required preponderance of

the evidence.

[39]

3. The Jury’s Finding in Question 3(1), That the damages for the physical pain

and mental anguish sustained in the past by Guillermo Ochoa-Cronfel as a

result of the injury was only $2,500.00, is Not Supported by Legally and/or

Factually Sufficient Evidence. Further, the trial court erred in overruling

Plaintiff’s objection to the introduction of evidence regarding his past

surgeries as to this damage claim, on relevance grounds.

The legal and factual sufficiency standards of review noted above, with

respect to Appellant’s points of error on contributory negligence, apply with equal

force to Appellant’s points of error regarding the insufficiency of the damages found

by the jury in this case.

The court’s charge asked the jury what sum of money would fairly and

reasonably compensate Cronfel for his injuries that resulted from the incident in

question, for the following elements of damages; (i) physical pain and mental

anguish sustained in the past; (ii) physical pain and mental anguish that, in

reasonable probability, Cronfel will sustain in the future; (iii) physical impairment

sustained in the past; (iv) physical impairment that, in reasonable probability,

Cronfel will sustain in the future; (v) medical care expenses incurred in the past; (vi)

medical care expenses that, in reasonable probability, Cronfel will incur in the

future; (vii) disfigurement sustained in the past; and, (viii) disfigurement that, in

reasonable probability, Cronfel will sustain in the future. CR 500-01. Further, the

charge asked the jury to not award any sum of money on any element if it had

otherwise, under some other element, awarded a sum of money for the same loss, to

avoid compensating Cronfel twice for the same loss. CR 500.

[40]

“In order to recover mental anguish damages, a plaintiff must establish ‘a high

degree of mental pain and distress’ that is ‘more than mere worry, anxiety, vexation,

embarrassment, or anger.’” Doctor v. Pardue, 186 S.W.3d 4, 18 (Tex.App.-Houston

[1st Dist.] 2005, pet. denied), citing Parkway Co. v. Woodruff, 901 S.W.2d 434, 444

(Tex. 1995). While this may be a nebulous standard, direct evidence of the nature,

duration, and severity of a claimant’s mental anguish, “…whether in the form of the

claimants’ own testimony, that of third parties, or that of experts, is more likely to

provide the fact finder with adequate details to assess mental anguish claims.”

Parkway Co., 901 S.W.2d, at 444.

In the instant case, Cronfel testified at length regarding the physical pain and

mental anguish the incident and its attendant injuries had caused him up to the time

of trial, and presented medical records that demonstrated same:

• The collision with Murray’s dog caused Cronfel to impact the roadway

violently, causing him to feel “great pain” as soon as he hit the pavement, and

slid along the granular road surface that was burning hot from the intense July

sun, and the pain was severe enough that Cronfel feared that something was

“really wrong”. IV RR 127-28.

• Cronfel continued to feel pain throughout the night of the incident, and could

not sleep well as a result. The pain continued the next day, so Cronfel went

to see his general practitioner, Dr. Paul Keinarth. IV RR 131-132.

• Dr. Keinarth’s records from Cronfel’s above-referenced visit document the

pain that Cronfel continued to feel in his right shoulder, elbow, wrist, and

hand. VII RR 18-22, Plaintiff’s Exh. 2.

• Within less than a week of his visit to Dr. Keinarth, Cronfel had been referred

to Dr. Carey Windler of Austin Sports Medicine by Dr. Keinarth for further

[41]

evaluation. Dr. Windler’s records from this initial visit document that Cronfel

continued to present with pain in his right arm. VII RR 29, Plaintiff’s Exh. 3.

• Dr. Windler explained to Cronfel that he may be facing an extensive surgery

on his elbow, which would include sawing off the head of the radius. This

caused Cronfel anxiety and stress, manifesting itself in panicked thoughts,

sleepless nights, and nausea over the couple of weeks following his first visit

to Dr. Windler, as he contemplated the proposed surgery. IV RR 135-36.

• After that initial visit with Dr. Windler, Cronfel returned for further

evaluation. Dr. Windler’s records from this second visit document that

Cronfel continued to present with pain in his right arm. VII RR 28, Plaintiff’s

Exh. 3.

• At that time, Cronfel was fitted with a plastic cast on his right arm that he

would wear for another four to six weeks. Over the ensuing weeks, the arm

continued to cause Cronfel great pain on a daily basis, again causing him great

difficulty in sleeping. Cronfel described the pain at this time as a “10” on a

scale of 1 to 10. IV RR 136-37.

• Cronfel also described the difficulties he had during this time with everyday

activities such as writing, cooking, and even going to the bathroom. IV RR

138.

• In October, 2009, just less than three months after the incident, Cronfel again

returned to Dr. Windler for evaluation. While by this time the pain in his

elbow had finally begun to subside, the pain in his wrist continued, unabated.

IV RR 139 & VII RR 27, Plaintiff’s Exh. 3.

• After the October, 2009, visit, at the recommendation of Dr. Windler, Cronfel

attempted to go back to his normal, daily activities, with pain as his guide.

But the pain in his wrist didn’t go away, and in June, 2010, Cronfel paid Dr.

Windler another visit. IV RR 140-41.

• At that time, after reviewing the July, 2009 x-rays that were contemporaneous

with Cronfel’s injuries, Dr. Windler suggested he undergo an MR arthrogram,

in order to determine the extent of the damage to his right wrist. Cronfel in

fact undertook this additional procedure, which subjected him to additional

[42]

physical pain in the form of an anesthetizing shot as well as an even more

painful shot of dye, right into the joint of his wrist. IV RR 143-44.

• After the above-referenced arthrogram procedure, Cronfel was sent to a hand

specialist, Dr. Robert Walters, and he saw Dr. Walters for the first time on

August 4, 2010. At that appointment, Dr. Walters explained to Cronfel that

he had a condition known as ulnar impact syndrome, and that it would need

to be treated surgically, via a procedure in which they would break Cronfel’s

ulna, saw off a piece of it, and put two plates and screws into his arm.

Understandably, Dr. Walters’ explanation of this new, extreme-sounding

surgery caused Cronfel to revisit all the shock, anxiety, and nausea that he’d

previously experienced when discussing the similar proposed surgery on his

elbow. IV RR 147-48 & VII RR 66-67, Plaintiff’s Exhibit 4.

• Unfortunately, Dr. Walters passed away while treating Cronfel during 2010,

and prior to performing the ulnar impact surgery described above.

Subsequently, Cronfel was referred to another hand specialist, Dr. Gregg

Vagner. While Cronfel only had one appointment with Dr. Vagner, in March,

2011, he again presented with continued, worsened pain in his right wrist. IV

RR 158-59 & VII RR 89-91, Plaintiff’s Exhibit 5.

• Cronfel’s final referral was to Dr. Ira Lown, another hand specialist, who

would ultimately perform the ulnar impact surgery described above. Cronfel

began seeing Dr. Lown in August, 2011. At his first appointment with Dr.

Lown, Cronfel learned he would indeed have to undergo the ulnar impact

surgery. IV RR 160.

• At that first meeting, Dr. Lown advised Cronfel to put off the surgery as long

as possible and undergo regime of physical therapy and constant pain

management that ultimately lasted approximately three years. IV RR 161-

163.

• In September, 2014, Cronfel finally underwent the ulnar impact surgery, and

in the weeks leading up to the surgery, Cronfel again experienced the anxiety,

panic, sleeplessness, nausea, and concern that went along with the prospect of

this highly invasive procedure. IV RR 165.

• Immediately after the surgery, Cronfel experience terrible pain had had to

undergo a nerve block to manage that pain, which continued for about twenty-

[43]

four hours after surgery. And even after that, prior to the trial held in this

matter in November, 2014, Cronfel continued to experience the pain in his

wrist. IV RR 166-67.

• Dr. Lown’s extensive medical records on Cronfel further document the pain

that he continued to endure throughout Dr. Lown’s treatment of him. VII RR

94-223, Plaintiff’s Exhibit 6. In fact, Dr. Lown further testified that the ulnar

impact surgery that he performed on Cronfel is, in his experience, “one of the

more painful” surgeries to deal with from a post-operative pain level. IV RR

77.

Tellingly, Defendant did not present an expert of his own (or indeed, any

witness) to attempt to controvert any of the medical records, the expert medical

testimony of Dr. Lown, or Cronfel’s testimony as to the past physical pain and

mental anguish he sustained as a result of the incident and his attendant injuries. In

fact, Defendant’s only attempt to address these issues came in his cross-

examinations of Cronfel and Dr. Lown. With respect to Cronfel, this was limited to

a brief discussion of his daily activities post-incident, and past surgeries:

Q: Okay. Now you agree that – at least when I took your deposition, in

October, about a year ago, as of a year ago, you were still doing push-

ups, correct?

A: Yes, sir.

Q: And about a year ago, you were still doing pull-ups, correct?

A: Under the supervision of a therapist and a trainer, yes, sir.

Q: Any you continued to ride your road bike and your mountain bike,

correct?

A: Yes, sir.

Q: And you continued to lift weights, correct?

[44]

A: Reduced reps and amounts of weights, yes, sir.

Q: And you continued to water ski?

A: I water skied once.

--IV RR 186-87.

Q: Mr. Cronfel, in the past you have had several procedures – other

surgical procedures done to your knees, correct?

A: Yes, sir, over the last 30 years I’ve had several procedures.

Q: You have had a total knee replacement performed to your right knee in

August of 2010, correct?

A: Yes, sir.

Q: You have hardware present in your body in terms of a new knee,

correct?

A: Yes, sir.

Q: And you have had multiple injections to your knees in the past, correct?

A: Yes, sir.

--IV RR 191-92.

At trial, Defendant’s counsel argued that he should be able to question Cronfel

regarding the above-described other surgeries he had gone through because Cronfel

had testified about the fear, anxiety, pain, etc…associated with the instant injuries,

and the prospects of surgery(ies) related to those instant injuries. Cronfel’s counsel

objected, as to the relevance of unrelated surgeries that Cronfel had undergone.

Initially, the trial court sustained Cronfel’s objection, but after reconsidering,

[45]

changed its mind. Cronfel’s counsel renewed his objection, the trial court overruled

same, and the question-answer noted above then ensued. IV RR 187-91.

The trial court’s admission of evidence of these past injuries insofar as they

allegedly related to Cronfel’s claims for pain and mental anguish associated with the

present injury was clear error. “Whether a plaintiff’s condition is a ‘part’ of a claim

is determined from the pleadings…” In re Nance, 143 S.W.3d 506, 511 (Tex.App.-

Austin 2004, orig. proceeding), citing R.K. v. Ramirez, 887 S.W.2d 836, 840 (Tex.

1994); see also, In re Doe, 22 S.W.3d 601, 609 (Tex.App.-Austin 2000, orig.

proceeding). Here Cronfel’s pleadings allege only facts and circumstances

surrounding the 2009 injury arising from his collision with Murray’s dog and the

damages suffered as a result thereof. CR 12-18. Moreover, Murray’s pleadings also

did not plead any defensive theory related to preexisting condition. CR 10-11 & 19-

20. And even if they had, “…that defensive theory is in the nature of an inferential

rebuttal, not an ultimate issue of fact that alone has legal significance.” Nance, 143

S.W.3d, at 512-13, citing R.K., 887 S.W.2d, at 843. It is well settled that a tortfeasor

takes a plaintiff as he finds him. Coates v. Whittington, 758 S.W.2d 749, 753 (Tex.

1988); See also Nance, 143 S.W.3d, at 512; In re Doe, 22 S.W 3d, at 606. That is,

regardless of Cronfel’s past surgeries (or lack thereof) he is entitled to recover

damages resulting from the collision with Murray’s dog, conditioned as he was at

the time of the incident. See Coates, 758 S.W.2d, at 753 (internal citations omitted).

[46]

Absent a showing of some connection to Cronfel’s pain and mental anguish arising

from this incident, a showing that Murray did not even attempt to make, Cronfel’s

past surgeries have zero relevance to the damages attributable to his collision with

Murray’s dog, and their introduction was both harmful and prejudicial to Cronfel

when it came time for the jury to decide on this element of damages.

With respect to Dr. Lown, Defendant’s attempts to controvert Cronfel’s

evidence of past physical pain and mental anguish were similarly limited to a brief

discussion of Cronfel’s daily activities post-incident, and other injuries that Cronfel

had suffered. Dr. Lown testified (like Cronfel) that post-injury, Cronfel continued

to try and maintain his exercise and fitness regime, also with the guidance and

assistance of Dr. Lown’s physical therapist. IV RR 96-99. Dr. Lown also testified

that during his treatment of Cronfel (and post-incident), that Cronfel had an injury

in August, 2012 to his left wrist that required surgery. IV RR 99. On re-direct, in

summing up his opinions on Cronfel’s injuries, Dr. Lown testified as follows:

Q: Doctor, hi. I – you just answered a lot of questions about stuff that

happened in August of 2012 and all throughout the year 2012. Do you

recall that line of questioning?

A: Yes, I do.

Q: Well, I want to look through your notes. In looking at the very first

page of your records when you – when you very first saw Mr. Cronfel

on August 11th, 2011 – I mean, I went to A&M, but that’s a whole year

before August 2012, right?

A: That’s correct.

[47]

Q: And can you tell me, under Plan, from August 11th, 2011, did you have

an opinion at that time after putting your hands on Mr. Cronfel and

examining his medical records, his chart notes, and doing your physical

examination, what medical procedures on August 11th, 2011, did you

think were appropriate for Mr. Cronfel?

A: We discussed the ulnar shortening and the four-corner fusion.

Q: So wait – so – oh, so you did discuss the four-corner wrist fusion in

August 2011?

A: Yes, we did.

Q: And that was well before any of these notes that you just got all these

questions about in August 2012?

A: That’s correct.

Q: Do you have an opinion, Doctor, as to whether or not Guillermo was a

surgical candidate for the wrist fusion surgery in August 2011,

regardless what happened after that?

A: Yes. At that time he was.

Q: And I mentioned earlier today that, you know, Mr. Cronfel could have

been a participant in the world’s strongest man competition even, but it

wouldn’t have mattered if it was after August 2011, would it, to you?

A: The damage was already done.

Q: And the damage was already done, and the surgery was already going

to have to be had. Is that true?

A: Yes.

--IV RR 114-15.

Q: I just want to make clear. And after answering Mr. Payne’s questions,

have your opinions changed at all as Mr. Cronfel’s treating physician

that, other than this July 23rd, 2009 injury, would Mr. Cronfel need this

ulnar shortening surgery or would he need the wrist fusion?

[48]

A: No, he would not.

Q: And that’s based on your skills, experience, training, and reasonable

medical probability?

A: That’s correct.

--IV RR 117-18.

No evidence was presented that Cronfel did not suffer the past physical pain

and mental anguish he claimed, nor was any evidence presented that Cronfel’s past

physical pain and mental anguish was minimal. Defendant’s “controverting”

position seemed to be that other physical ailments, perhaps associated with previous

(or other) injuries, contributed to Cronfel’s complaints. A similar attack was deemed

insufficient to support an award of zero damages for past pain and suffering by the

Houston 1st District Court of Appeals:

“Appellees argue other physical ailments not attributable to this injury

contributed to appellant’s complaints, and therefore a zero award is not

against the great weight and preponderance of the evidence. However,

the jury did award appellant damages for past medical expenses

attributable to the Kroger incident. Therefore, the testimony shows the

surgery and other medical treatment were a result of the accident at

issue, rather than his previous injuries. Other injuries could not have

been responsible for any pain associated with procedures directly

attributable to this injury. Further, appellees offered no medical

testimony linking any previous injuries to present evidence of pain.”

--Prescott v. Kroger Co., 877 S.W.2d 373, 375 (Tex.App.-Houston [1st

Dist.] 1994, writ denied).

While the jury in the instant case did not award zero damages for Cronfel’s past

physical pain and mental anguish, given the extensive testimony and medical record

[49]

evidence presented in support thereof and the lack of any real controverting

evidence, the jury’s award of $2,500.00 in answer to question 3(1) is supported by

no evidence and/or insufficient evidence, is so against the great weight and

preponderance of the evidence as to be manifestly unjust, and the court should

reverse and remand for a new trial as a result.

4. The Jury’s Finding in Question 3(2), That the damages for the physical pain

and mental anguish that, in reasonable probability, Guillermo Ochoa-

Cronfel will sustain in the future as a result of the injury was only $1,000.00,

is Not Supported by Legally and/or Factually Sufficient Evidence.

“Texas follows the ‘reasonable probability rule’ for future damages for

personal injuries.” Doctor, 186 S.W.3d, at 20, citing Rosenboom Mach. & Tool, Inc.

v. Machala, 995 S.W.2d 817, 828 (Tex.App.-Houston [1st Dist.] 1999, pet. denied).

As such, to recover damages for future physical pain and mental anguish, Cronfel

must show there is a reasonable probability of his sustaining same as a result of the

injuries concerned herein. Moreover, while matters of pain and mental anguish are

speculative, “…once it has been proved by objective evidence that an injury will

continue adversely to affect plaintiff, the jury may not give a take-nothing verdict

for future pain, suffering, and mental anguish.” Hicks v. Ricardo, 834 S.W.2d 587,

591 (Tex.App.-Houston [1st Dist.] 1992, no writ), citing Jones v. Wal-Mart Stores,

Inc., 870 F.2d 982, 988 (5th Cir. 1989). Here, we are not dealing with a zero damage

award, but the findings are still inconsistent. The record shows objective evidence

that Cronfel’s injuries as a result of the collision with Murray’s dog will continue to

[50]

adversely affect him in the future, in a similar way to the effect it has had on him

from the time of the incident to the present. Nevertheless, the jury actually awarded

less than half of the amount for future damages for pain and anguish than it did for

past pain and anguish, despite the fact that in reasonable probability Cronfel’s future

pain and anguish will extend far beyond the approximately five and a half years that

had elapsed between the incident and trial.

With respect to the probable future physical pain and mental anguish he would

suffer as a result of his injuries, Cronfel testified that he was scared about his future

given the years of pain and problems he has already endured, and the prospect of an

additional future surgery that would leave him permanently impaired, and might still

not relieve the pain he feels on a daily basis. IV RR 174. Dr. Lown then further

testified regarding the wrist fusion surgery that Cronfel still faces, and the fact that

successful or not he faces the real possibility of continued pain in his wrist into the

future. IV RR 84-86.

Defendant offered no evidence, testimony or otherwise, to controvert

Cronfel’s evidence as to his probable future physical pain and mental anguish.

Again, while the jury in the instant case did not award zero damages for Cronfel’s

probable future physical pain and mental anguish, given the testimony and medical

record evidence presented in support thereof and the lack of any controverting

evidence, the jury’s award of $1,000.00 in answer to question 3(2) is supported by

[51]

no evidence and/or insufficient evidence, is so against the great weight and

preponderance of the evidence as to be manifestly unjust, and the court should

reverse and remand for a new trial as a result.

5. The Jury’s Finding in Question 3(3), That the damages for the physical

impairment Guillermo Ochoa-Cronfel sustained in the past as a result of the

injury was only $500.00, is Not Supported by Legally and/or Factually

Sufficient Evidence.

“In order to recover damages for physical impairment, ‘the effect of any

physical impairment must be substantial and extend beyond any pain, suffering,

mental anguish, lost wages or diminished earning capacity,’ [and the] ‘loss of

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

impairment.” Doctor, 186 S.W.3d, at 18, citing Golden Eagle Archery, Inc. v.

Jackson, 116 S.W.3d 757, 772 (Tex. 2003).

Again, Cronfel testified at length regarding the past physical impairment that

the injuries resulted in:

• Immediately following the incident, Cronfel experienced swelling and a

limited range of motion with his right wrist. IV RR 133. Dr. Keinarth’s

contemporaneous medical records confirm this. VII RR 18-20, Plaintiff’s

Exh. 2.

• In fact, impairments in the range of motion in his wrist were noted in the

medical records of all of his subsequent medical providers as well. VII RR

26-27 & 30-31, Plaintiff’s Exh. 3 (Dr. Windler); VII RR 66-67, Plaintiff’s

Exhibit 4 (Dr. Walters); VII RR 89-91, Plaintiff’s Exhibit 5 (Dr. Vagner);

and, VII RR 94-96, 103-77 & 190-223, Plaintiff’s Exhibit 6.

• The repetition and intensity of Cronfel’s exercise programs had to adjust

to account for the impairment caused by his injuries. This also included

[52]

his removing certain activities, e.g., bowling, from the list of activities he

could still engage in. IV RR 172.

As with Cronfel’s past physical pain and mental anguish, the only

controverting evidence Defendant adduced with respect to his past physical

impairment was Cronfel’s above-referenced testimony that he continued to try and

live his life. There was no evidence presented that Cronfel was not, in fact, suffering

the levels of physical impairment to which he testified, or which was documented

by the medical records. Again, while the jury in the instant case did not award zero

damages for Cronfel’s past physical impairment, given the testimony and medical

record evidence presented in support thereof and the lack of any controverting

evidence, the jury’s award of $500.00 in answer to question 3(3) is supported by no

evidence and/or insufficient evidence, is so against the great weight and

preponderance of the evidence as to be manifestly unjust, and the court should

reverse and remand for a new trial as a result.

6. The Jury’s Finding in Question 3(4), That the damages for the physical

impairment that, in reasonable probability, Guillermo Ochoa-Cronfel will

sustain in the future as a result of the injury was only $2,000.00, is Not

Supported by Legally and/or Factually Sufficient Evidence.

As with future pain and mental anguish, the standard for future physical

impairment is that of “reasonable probability”. Doctor, 186 S.W.3d, at 20. And

once again, here the evidence presented was in the form of the testimony of Cronfel’s

treating physician, Dr. Lown. In describing the sort of impairment that Cronfel

[53]

would face in the future, after undergoing the additional, wrist fusion surgery that

would be necessary, Dr. Lown testified as follows:

Q: I think you can sit down now for the final time. After this wrist fusion

surgery that you just described to us is completed, will Guillermo ever

have normal range of motion in his right wrist?

A: No, he won’t.

Q: Can Guillermo expect at least 50 percent impairment in range of motion

of that wrist?

A: Yes, he can.

Q: And just so the folks on the jury are clear, even if the surgery goes 100

percent perfectly well, Guillermo can still expect at least 50 percent

impairment in his range of motion?

A: That’s correct. I usually tell patients they’re going to have about half

of the motion that they come in with. It’s usually not that – it can be

better than that, but that’s what I tell people.

Q: And could it be worse than that?

A: It could be.

--IV RR 82.

Q: The surgery – the wrist fusion surgery, is that Guillermo’s best medical

treatment option now?

A: Yes.

Q: And are there any guarantees for that surgery?

A: No, there are not.

Q: Even if the fusion surgery in his wrist goes 100 percent perfectly, is it

possible that Guillermo may still experience pain?

A: Yes.

[54]

Q: And even if the fusion surgery goes perfectly, we know with medical

certainty he’s going to be impaired, right?

A: That’s correct.

--IV RR 84-85.

As with future physical pain and mental anguish, Defendant offered no

evidence, testimony or otherwise, to controvert Cronfel’s evidence as to his probable

future physical impairment. Again, while the jury in the instant case did not award

zero damages for Cronfel’s probable future physical impairment, given the

testimony and medical record evidence presented in support thereof (demonstrating

that after the wrist fusion surgery, Cronfel would be physically impaired to some

degree for the rest of his life) and the lack of any controverting evidence, the jury’s

award of $2,000.00 in answer to question 3(4) is supported by no evidence and/or

insufficient evidence, is so against the great weight and preponderance of the

evidence as to be manifestly unjust, and the court should reverse and remand for a

new trial as a result.

7. The Jury’s Finding in Question 3(5), That the medical care expenses

Guillermo Ochoa-Cronfel incurred in the past as a result of the injury was

only $9,345.00, is Not Supported by Legally and/or Factually Sufficient

Evidence.

Past medical expenses are recoverable when a claimant demonstrates they

were reasonable and necessary. Doctor, 186 S.W.3d, at 20, citing Nat’l Union Fire

Ins. Co. v. Wyar, 821 S.W.2d 291, 297 (Tex.App.-Houston [1st Dist.] 1991, no writ.)

[55]

This can be demonstrated via medical records supported by affidavits pursuant to

Tex. Civ. Prac. & Rem. Code §18.001. In the instant case, Cronfel presented medical

billing records supported by affidavit, as well as a breakdown of the expenses by

provider that in total demonstrated past medical expenses of $11,067.59.18

Defendant offered no evidence, testimony or otherwise, to controvert

Cronfel’s evidence as to his past medical expenses. While the amount of damages

to be awarded is generally left to the sound discretion of the jury, when a claimant

shows, without contradiction, reasonable and necessary medical expenses arising

from the incident that is the subject of the claim, a jury cannot arbitrarily assess an

amount that is not authorized or supported by the evidence. See Hill v. Clayton, 827

S.W.2d 570, 574 (Tex.App.-Corpus Christi 1992, no writ.) Again, while the jury in

the instant case did not award zero damages for Cronfel’s past medical expenses,

given the testimony and medical record evidence presented in support thereof, and

the lack of any controverting evidence, the jury’s award of $9,345.00 in answer to

question 3(5) is supported by no evidence and/or insufficient evidence, is so against

the great weight and preponderance of the evidence as to be manifestly unjust, and

the court should reverse and remand for a new trial as a result.

8. The Jury’s Finding in Question 3(6), That the medical care expenses that, in

reasonable probability, Guillermo Ochoa-Cronfel will incur in the future as

a result of the injury was only $3,000.00, is Not Supported by Legally and/or

Factually Sufficient Evidence.

18

See VII RR 17-265, Plaintiff’s Exhs. 2-7; and, VII RR 380, Plaintiff’s Exh. 11.

[56]

As with future pain and mental anguish, and future physical impairment, the

standard for future medical expenses is that of “reasonable probability”. Doctor,

186 S.W.3d, at 20. And once again, here the evidence presented was in the form of

the testimony of Cronfel’s treating physician, Dr. Lown that Cronfel would still have

to undergo a wrist fusion surgery. IV RR 80-86. In describing the sort of medical

expenses that Cronfel could expect in the future for the wrist fusion surgery that

would be necessary, Dr. Lown testified to four, separate line items of expected

expenses, including his services, the surgery center’s services, anesthesiology, and

medical implants, that would total approximately $14,690.00. IV RR 82-84.

Defendant offered no evidence, testimony or otherwise, to controvert

Cronfel’s evidence as to his future medical expenses, yet the jury awarded only

$3,000.00 for future medical expenses…less than one-fourth of that suggested by

the only evidence it heard. Again, while the jury in the instant case did not award

zero damages for Cronfel’s future medical expenses, given the expert testimony

presented in support thereof, and the lack of any controverting evidence, the jury’s

award of $3,000.00 in answer to question 3(6) is supported by no evidence and/or

insufficient evidence, is so against the great weight and preponderance of the

evidence as to be manifestly unjust, and the court should reverse and remand for a

new trial as a result.

9. The Jury’s Finding in Question 3(7), That the disfigurement sustained in the

[57]

past by Guillermo Ochoa-Cronfel as a result of the injury was subject to a

ZERO damage award, is Not Supported by Legally and/or Factually

Sufficient Evidence.

“Disfigurement has been defined as ‘that which impairs or injures the beauty,

symmetry, or appearance of a person or thing; that which renders unsightly,

misshapen or imperfect, or deforms in some manner.’” Sunbridge Healthcare Corp.

v. Penny, 160 S.W.3d 230, 252 (Tex.App.-Texarkana 2005, no pet.), citing Goldman

v. Torres, 341 S.W.2d 154, 160 (Tex. 1960); see also, Doctor, 186 S.W.3d, at 18.

Moreover, “Expert testimony is not a prerequisite to the award of damages for

disfigurement.” Sunbridge Healthcare, 160 S.W.3d, at 252, citing Transit Mgmt.

Co. of Laredo v. Sanchez, 886 S.W.2d 823, 826 (Tex.App.-San Antonio 1994, no

writ).

In the instant case there was no evidence other than that introduced by Plaintiff

demonstrating the disfigurement caused by the incident and his subsequent ulnar

impact surgery. Dr. Lown testified that his review of Cronfel’s diagnostic films from

the July, 2009 incident, along with his examination of Cronfel, led to his

determination that the incident had caused a shortening of Cronfel’s ulna relative to

his radius in his right arm. IV RR 65-67. That is, the symmetry of Cronfel’s ulna

was affected by the incident, rendering it misshapen, imperfect, or deformed in some

manner. Dr. Lown further testified that this disfigurement of Cronfel’s ulna led to

the necessity of the ulnar impact surgery he ultimately performed on Cronfel. IV

[58]

RR 67. Dr. Lown then went on to describe the ulnar impact surgery itself, detailing

the 8-10 cm (approx. 3-4 in.) incision required, the sawing of bone required, and the

insertion of plates and screws required. IV RR 75-78. 19

Once again, Defendant offered no evidence, testimony or otherwise, to

controvert Cronfel’s evidence as to his past disfigurement (as there was none to

offer), yet the jury awarded zero damages for past disfigurement. Given the expert

medical testimony presented in support of past disfigurement, the photographic

evidence presented, and the lack of any controverting evidence, the jury’s award of

zero damages in answer to question 3(7) is supported by no evidence and/or

insufficient evidence, is so against the great weight and preponderance of the

evidence as to be manifestly unjust, and the court should reverse and remand for a

new trial as a result.

10.The Jury’s Finding in Question 3(8), That the disfigurement that, in

reasonable probability, Guillermo Ochoa-Cronfel will sustain in the future

as a result of the injury was subject to a ZERO damage award, is Not

Supported by Legally and/or Factually Sufficient Evidence.

As with future pain and mental anguish, future physical impairment, and future

medical expenses, the standard for future disfigurement is that of “reasonable

probability”. Doctor, 186 S.W.3d, at 20. Once again, the only evidence presented

on this point was the expert medical testimony of Dr. Lown. As noted above, Dr.

19

See also FN 9, supra, and the accompanying post-surgical picture.

[59]

Lown testified that while there were no guarantees that the wrist fusion surgery he

proposed for Cronfel’s future would alleviate all the pain he felt in his wrist, and that

it would certainly leave him with some level of impairment, it would be his best

medical treatment option. IV RR 84-85. Dr. Lown testified as to the nature of the

wrist fusion surgery as follows:

Q: Thank you. If you could, Doctor, please just show us what that wrist

fusion procedure entails.

A: Sure. So this is the disruption between like the scaphoid and lunate. So

the procedure is to take out the scaphoid. Then we fuse the lunate to

the capitate, to these other – these other bones, so that the wrist moves

as one unit from here without this.

Q: Okay. And then how – how are those bones fused? Can you explain

that to us?

A: I use – there’s several different ways to do it, but you take off the

cartilage. There’s cartilage between these bones. Take all of that out

and you get the bones so you get down to – down to good bone and then

I usually put pins or stainless steel wires to hold the bones together to

pin them in the position I want them in. And then the pins or wires

come out after the bones heal in about four to six weeks.

Q: So even after the surgery is performed, four to six weeks later the

patient has to come in and have the pins removed?

A: That’s correct.

Q: How long are the wrist bones fused to the forearm bones? Is that –

A: They’re not.

Q: Okay. So that’s not the four corner –

A: Four corners, one, two, three, four. That’s what’s fused.

[60]

Q: And how is that supposed to help with the pain?

A: Because this bone is removed, and this is what’s kind of rubbing up on

the radius and moving and not moving in line with the lunate. The

lunate – just the way we’re built, it’s a deeper – this is the radius. It’s

a deeper – deeper cup on the radius, so there’s a very predictable pattern

of – of arthritis that develops. It usually starts here at the radial styloid,

and it works its way around and can work its way between the capitate

and the lunate. But what’s always preserved or usually preserved is the

space between the – the lunate and the radius, so that’s a good area to

run the wrist off of.

Q: And that’s what you plan on doing for Guillermo?

A: Yes.

--IV RR 80-81.

That is, Cronfel’s wrist was affected by the incident, rendering his best future option

for medical treatment another surgery that would entail removal of a bone, removal

of cartilage, and essentially tying the remaining bones together with pins and wires

in order to fuse them over time. Clearly, this would affect the symmetry of Cronfel’s

right wrist causing him further imperfection or deformity.

Once again, Defendant offered no evidence, testimony or otherwise, to

controvert Cronfel’s evidence as to his reasonably probable future disfigurement (as

there was none to offer), yet the jury awarded zero damages for reasonably probable

future disfigurement. Given the expert medical testimony presented in support of

past disfigurement, and the lack of any controverting evidence, the jury’s award of

zero damages in answer to question 3(8) is supported by no evidence and/or

[61]

insufficient evidence, is so against the great weight and preponderance of the

evidence as to be manifestly unjust, and the court should reverse and remand for a

new trial as a result.

11.The trial court’s monetary sanctions order against Cronfel was an abuse of

discretion and should be vacated, or in the alternative, reduced.

A trial court’s order of sanctions is reviewed for an abuse of discretion. Blake

v. Dorado, 211 S.W.3d 429, 434 (Tex.App.-El Paso 2006, no pet.), citing Koslow’s

v. Mackie, 796 S.W.2d 700, 704 (Tex. 1990); Aguilar v. Morales, 162 S.W.3d 825,

834 (Tex.App.-El Paso 2005, pet. denied). A trial court abuses its discretion when

it acts without reference to any guiding rules and principles, and a trial court’s ruling

should be reversed only if its action is arbitrary or unreasonable. Cire v. Cummings,

134 S.W.3d 835, 838-39 (Tex. 2004), citing Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 241-42 (Tex. 1985).

Here the trial court was asked to sanction Cronfel, pursuant to Tex. R. Civ.

Proc. 215.2(b)(5) & (8), for his alleged violation of a prior order requiring him to

execute a medical authorization on behalf of Defendant for the production of his

medical file from Dr. Lown’s office. CR 176-354 & 355-364, Defendant’s Motion

and Supplement thereto. The prior order required Cronfel to provide the referenced

medical authorization on or before September 19, 2014. CR 187-88. On September

19, 2014, Cronfel provided a medical authorization that restricted the release only

of medical records from Dr. Lown’s office that related to his mental health

[62]

prescriptions, behavioral or mental health services, sexually transmitted diseases,

and/or AIDS or HIV. CR 190. Prior to the hearing on Defendant’s Motion for

Sanctions, Cronfel also provided a medical authorization without the above-

referenced restrictions. CR 364. After a hearing on Defendant’s Motion for

Sanctions the Honorable District Judge Gus Strauss entered the Order complained

of herein, sanctioning Cronfel monetary sanctions in the amount of $5,000.00, “…in

part to cover the attorney’s fees that Defendant incurred in response to this motion

and all prior underlying hearings on prior motions to compel, and in part as sanctions

for objectionable conduct…” CR 413.

In his Brief in Support of his Argument Against Defendant’s Motion for

Sanctions, and attendant Affidavit of Guillermo Ochoa-Cronfel, Cronfel explained

that his understanding of the hearing and Order on which the Motion for Sanctions

was based, was that the court had ordered a medical authorization for his complete

medical file from Dr. Lown, excepting mental health records. CR 394-408. At the

hearing on Defendant’s Motion for Sanctions Defendant’s counsel even stated that

Defendant was not even seeking medical records related to Cronfel’s mental health.

II CR 19-20. This makes sense as mental health records are privileged from

discovery when they are not part of a party’s claims or defenses, as here, even if they

may be relevant, because they are not at issue. See R.K., 887 S.W.2d, at 843.

Defendant was asking the court to sanction Cronfel for seeking to protect records he

[63]

believed the court had expressed were protected, that both parties believed were

protected, and that relevant case law expressly describes as protected. And, at the

end of the day, not only was Cronfel sanctioned, but his mental health records were

not protected from disclosure to Defendant.

Additionally, and/or alternatively, the monetary sanctions ordered were

improper under Tex. R. Civ. P. 215. “Any monetary sanctions available for abuse

of discovery are limited to reasonable expenses, including attorney’s fees, caused by

the abuse.” Lopez v. La Madeleine of Texas, Inc., 200 S.W.3d 854, 865 (Tex.App.-

Dallas 2006, no pet.), citing Clone Component Distribs. Of Am., Inc. v. State, 819

S.W.2d 593, 597 (Tex.App.-Dallas 1991, no writ)(applying former Rule

215(2)(b)(2) and (8)). Here, Defendant did not offer any evidence as to his

reasonable expenses and/or fees. While Defendant did attach the conclusory

affidavit of his counsel, to the original motion for sanctions, claiming at least

$3,500.00 in attorney’s fees (CR 197-98), such is not an offer of evidence as is

required to support an award of sanctions under Rule 215:

“With regard to rule 215.6, appellants liken a sanctions hearing to a

summary judgment hearing and argue that since the sanctions rule

contemplates the use of affidavits as exhibits to a response to a

sanctions motion, the affidavits are admissible at the sanctions hearing

in the same manner as such exhibits are admissible at a summary

judgment hearing. However, unlike a sanctions hearing, a summary

judgment hearing is ‘an exception to the usual and traditional form of

procedure wherein witnesses are heard in open court and documentary

evidence is offered and received in evidence.’ IKB Indus. (Nigeria)

Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997) (quoting

[64]

Richards v. Allen, 402 S.W.2d 158, 160 (Tex. 1966)); see also Jack B.

Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 269 (Tex. 1992) (noting

summary judgment exception to requirement of hearing at which

witnesses present sworn testimony in person or by deposition rather

than by affidavit). In order to assess sanctions in this case, the trial

court was required to conduct an evidentiary hearing to which the rules

of evidence necessarily apply. See Randolph v. Walker, 29 S.W.3d 271,

277 (Tex.App.-Houston [14th Dist.] 2000, pet. denied); Karagounis v.

Property of Co. of America, 970 S.W.2d 761, 765 (Tex.App.-Amarillo

1998, pet. denied); Electronic Data Sys. Corp. v. Tyson, 862 S.W.2d

728, 739 (Tex.App.-Dallas 1993, no writ). Therefore, although rule

215.6 allows affidavits to be attached to a response to a sanctions

motion, in order for the trial court to consider such affidavits, they must

be admitted in compliance with the rules of evidence at the evidentiary

hearing.”

--Kugle v. DaimlerChrysler Corp., 88 S.W.3d 355, 363-64 (Tex.App.-

San Antonio 2002, pet. denied).

Nevertheless, assuming arguendo that the above-referenced attorney’s fees

affidavit attached to Defendant’s Motion for Sanctions did constitute evidence in

support of a sanctions award, the Court’s order explicitly stated that the $5,000.00

in attorney’s fees it was awarding as sanctions was partly for fees incurred and partly

for objectionable conduct, but it gave no insight into how it arrived at the number it

arrived at, or what portion(s) of the sanction related to fees and what portion did not.

CR 413. To the extent the court’s monetary sanctions order sought to punish

“objectionable conduct”, such is not authorized by Tex. R. Civ. P. 215.2(b)(8), as

described above. Further, the court failed to explain the basis for its calculating the

amount of the monetary sanction. As such, the monetary sanction constitutes an

impermissible, arbitrary fine that is not susceptible to meaningful review. See

[65]

Stromburger v. Turley Law Firm, 251 S.W.3d 225, 226-27 (Tex.App.-Dallas 2008,

no pet.). As a result, this court cannot properly determine whether the sanction is

“just”, as is required in order to uphold same. Ford Motor Company v. Tyson, 943

S.W.2d 527, 535 (Tex.App.-Dallas 1997, orig. proceeding); See also,

TransAmerican Natural Gas v. Powell, 811 S.W. 2d 913, 917 (Tex. 1991). For all

of the foregoing reasons, this court should vacate the trial court’s order of monetary

sanctions against Cronfel.

PRAYER

Appellant requests that the Court of Appeals reverse the judgment below, and

remand the case for a new trial because of the lack of legally and/or factually

sufficient evidence to support the jury’s findings on; (i) Plaintiff’s

negligence/contributory negligence; (ii) $2,500.00 in damages awarded to Cronfel

for physical pain and mental anguish sustained in the past; (ii) $1,000.00 in damages

awarded to Cronfel for physical pain and mental anguish that, in reasonable

probability, he would sustain in the future; (iii) $500.00 in damages awarded to

Cronfel for physical impairment sustained in the past; (iv) $2,000.00 in damages

awarded to Cronfel for physical impairment that, in reasonable probability, he will

sustain in the future; (v) $9,345.00 in damages awarded to Cronfel for medical care

expenses incurred in the past; (vi) $3,000.00 in damages awarded to Cronfel for

medical care expenses that, in reasonable probability, he would incur in the future;

[66]

(vii) $0.00 in damages awarded to Cronfel for disfigurement sustained in the past;

and/or, (viii) $0.00 in damages awarded to Cronfel for disfigurement that, in

reasonable probability, he will sustain in the future. Further, Appellant requests that

the Court of Appeals vacate the trial court’s order assessing monetary sanctions in

the amount of $5,000.00 against Cronfel as an abuse of discretion.

Respectfully submitted,

/s/ Paul T. Morin

Mr. Paul T. Morin

Texas Bar No. 14460550

Paul T. Morin, P.C.

503 West 14th Street

Austin, Texas 78701

Telephone: (512) 499-8200

Facsimile: (512) 499-8203

pmorin@austin.rr.com

Guillermo Ochoa-Cronfel

Texas Bar No. 15175600

The Cronfel Firm

2700 Bee Caves Road, Suite 103

Austin, Texas 78746

Telephone: (512) 347-9600

Facsimile: (512) 347-9911

Guillermo@thecronfelfirm.com

Counsel for Appellant,

Guillermo Ochoa-Cronfel

[67]

Certificate of Compliance

I certify that on September 14, 2015, this Appellant’s Brief was produced on

a computer and contains 13,120 words, excluding the caption, identity of parties and

counsel, statement regarding oral argument, table of contents, index of authorities,

statement of the case, and statement of the issues presented, and thus does not exceed

the 15,000 word limit provided for by Tex. R. App. P. 9.4(i).

/s/ Paul T. Morin

Paul T. Morin

Certificate of Filing and Service

I certify that on September 14, 2015, I used the Court’s electronic case filing

system to file this Appellant’s Brief and to serve this document on the counsel for

Appellee:

Mr. Gregory R. Ave

Texas Bar No. 01448900

Walters, Balido & Crain, L.L.P.

10440 North Central Expressway

Meadow Park Tower, Suite 1500

Dallas, Texas 75231

Telephone: (214) 347-8310

Facsimile: (214) 347-8311

Greg.Ave@wbclawfirm.com

/s/ Paul T. Morin

Paul T. Morin

[68]

APPENDIX

Tab

1) Final Judgment dated January 28, 2015 (Supp. CR 3-6).

2) Order on Defendant’s Motion for Sanctions dated October 31, 2015 (CR 413).

3) Jury Charge dated November 19, 2014 (CR 495-503).

4) Tex. Civ. Prac. & Rem. Code §18.001.

5) Tex. R. Civ. P. 215.2.

6) Trial Testimony of Guillermo Ochoa-Cronfel (IV RR 119-193).

7) Trial Testimony of Dr. Ira Lown (IV RR 31-119).

8) Trial Testimony of Patrick C. Murray (IV RR 199-224).

9) Plaintiff’s Brief in Support of his Argument Against Defendant’s Motion for

Sanctions (CR 384-408).

[69]

496

497

499

§ 18.001. Affidavit Concerning Cost and Necessity of Services, TX CIV PRAC & REM...

Vernon's Texas Statutes and Codes Annotated

Civil Practice and Remedies Code (Refs & Annos)

Title 2. Trial, Judgment, and Appeal

Subtitle B. Trial Matters

Chapter 18. Evidence

Subchapter A. Documentary Evidence

V.T.C.A., Civil Practice & Remedies Code § 18.001

§ 18.001. Affidavit Concerning Cost and Necessity of Services

Effective: September 1, 2013

Currentness

(a) This section applies to civil actions only, but not to an action on a sworn account.

(b) Unless a controverting affidavit is served as provided by this section, an affidavit that the amount a person charged for

a service was reasonable at the time and place that the service was provided and that the service was necessary is sufficient

evidence to support a finding of fact by judge or jury that the amount charged was reasonable or that the service was necessary.

(c) The affidavit must:

(1) be taken before an officer with authority to administer oaths;

(2) be made by:

(A) the person who provided the service; or

(B) the person in charge of records showing the service provided and charge made; and

(3) include an itemized statement of the service and charge.

(d) The party offering the affidavit in evidence or the party's attorney must serve a copy of the affidavit on each other party

to the case at least 30 days before the day on which evidence is first presented at the trial of the case. Except as provided by

the Texas Rules of Evidence, the records attached to the affidavit are not required to be filed with the clerk of the court before

the trial commences.

(e) A party intending to controvert a claim reflected by the affidavit must serve a copy of the counteraffidavit on each other

party or the party's attorney of record:

(1) not later than:

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

§ 18.001. Affidavit Concerning Cost and Necessity of Services, TX CIV PRAC & REM...

(A) 30 days after the day the party receives a copy of the affidavit; and

(B) at least 14 days before the day on which evidence is first presented at the trial of the case; or

(2) with leave of the court, at any time before the commencement of evidence at trial.

(f) The counteraffidavit must give reasonable notice of the basis on which the party serving it intends at trial to controvert the

claim reflected by the initial affidavit and must be taken before a person authorized to administer oaths. The counteraffidavit

must be made by a person who is qualified, by knowledge, skill, experience, training, education, or other expertise, to testify

in contravention of all or part of any of the matters contained in the initial affidavit.

Credits

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 167, § 3.04(a), eff. Sept. 1, 1987;

Acts 2007, 80th Leg., ch. 978, § 1, eff. Sept. 1, 2007; Acts 2013, 83rd Leg., ch. 560 (S.B. 679), § 1, eff. Sept. 1, 2013.

Notes of Decisions (61)

V. T. C. A., Civil Practice & Remedies Code § 18.001, TX CIV PRAC & REM § 18.001

Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

215.2. Failure to Comply with Order or with Discovery Request, TX R RCP Rule 215.2

Vernon's Texas Rules Annotated

Texas Rules of Civil Procedure

Part II. Rules of Practice in District and County Courts

Section 9. Evidence and Discovery (Refs & Annos)

B. Discovery

Rule 215. Abuse of Discovery; Sanctions (Refs & Annos)

TX Rules of Civil Procedure, Rule 215.2

215.2. Failure to Comply with Order or with Discovery Request

Currentness

(a) Sanctions by Court in District Where Deposition is Taken. If a deponent fails to appear or to be sworn or to answer a

question after being directed to do so by a district court in the district in which the deposition is being taken, the failure may

be considered a contempt of that court.

(b) Sanctions by Court in Which Action is Pending. If a party or an officer, director, or managing agent of a party or a person

designated under Rules 199.2(b)(1) or 200.1(b) to testify on behalf of a party fails to comply with proper discovery requests or to

obey an order to provide or permit discovery, including an order made under Rules 204 1 or 215.1, the court in which the action

is pending may, after notice and hearing, make such orders in regard to the failure as are just, and among others the following:

(1) an order disallowing any further discovery of any kind or of a particular kind by the disobedient party;

(2) an order charging all or any portion of the expenses of discovery or taxable court costs or both against the disobedient

party or the attorney advising him;

(3) an order that the matters regarding which the order was made or any other designated facts shall be taken to be established

for the purposes of the action in accordance with the claim of the party obtaining the order;

(4) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him

from introducing designated matters in evidence;

(5) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing with

or without prejudice the action or proceedings or any part thereof, or rendering a judgment by default against the disobedient

party;

(6) in lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey

any orders except an order to submit to a physical or mental examination;

(7) when a party has failed to comply with an order under Rule 204 requiring him to appear or produce another for

examination, such orders as are listed in paragraphs (1), (2), (3), (4) or (5) of this subdivision, unless the person failing to

comply shows that he is unable to appear or to produce such person for examination.

(8) In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or

the attorney advising him, or both, to pay, at such time as ordered by the court, the reasonable expenses, including attorney

fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make

an award of expenses unjust. Such an order shall be subject to review on appeal from the final judgment.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

215.2. Failure to Comply with Order or with Discovery Request, TX R RCP Rule 215.2

(c) Sanction Against Nonparty For Violation of Rules 196.7 or 205.3. If a nonparty fails to comply with an order under Rules

196.7 or 205.3, the court which made the order may treat the failure to obey as contempt of court.

Credits

Oct. 29, 1940, eff. Sept. 1, 1941. Amended by orders of Aug. 5, 1998, and Nov. 9, 1998, eff. Jan. 1, 1999.

Notes of Decisions (175)

Footnotes

1 Vernon's Ann.Rules Civ.Proc., rule 204.1 et seq.

Vernon's Ann. Texas Rules Civ. Proc., Rule 215.2, TX R RCP Rule 215.2

Current with amendments received through 6/1/2015

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

119

1 what your office staff tells you to some degree about

2 these estimates?

3 A. That's correct.

4 Q. And not your personal expertise?

5 A. True.

6 MR. PAYNE: Nothing further. Thank you,

7 Dr. Lown.

8 THE COURT: Anything?

9 MR. CAGLE: Nothing further.

10 THE COURT: Okay. Thank you, Dr. Lown.

11 You may step down, and you're excused as a witness.

12 It's a natural breaking point. Even though we're a

13 little earlier than noon, I'm going to go ahead and

14 we'll take our lunch break.

15 What that means is, when we come back at

16 1:15, we'll have a little bit longer of an afternoon,

17 so just make sure you come back well fed and ready to

18 go until five o'clock. But at this time, it's 11:45.

19 I'll see you all at 1:15.

20 (Lunch recess was taken.)

21 THE COURT: Plaintiff, you may call your

22 next witness.

23 MR. CAGLE: Thank you, Your Honor. We

24 call the plaintiff, Guillermo Ochoa-Cronfel.

25 THE COURT: Mr. Ochoa-Cronfel, please

120

1 raise your right hand.

2 (Witness was sworn in.)

3 THE COURT: Thank you. Please have a

4 seat.

5 GUILLERMO OCHOA-CRONFEL,

6 having been first duly sworn, testified as follows:

7 DIRECT EXAMINATION

8 BY MR. CAGLE:

9 Q. Mr. Cronfel, will you introduce yourself to

10 the folks of the jury?

11 A. My name is Guillermo Ochoa-Cronfel. My

12 friends call me Memo.

13 Q. Tell us a little bit about yourself,

14 Mr. Cronfel. Where are you from?

15 A. I was born in Houston, was raised down on the

16 border in Laredo. Then left there and went to college,

17 put myself through college, and then came here to

18 Austin and put myself through graduate school here in

19 Austin, and I've been living here since then.

20 Q. Did you graduate from graduate school in 1988?

21 A. Yes, I did.

22 Q. You've lived in Austin since that time, you

23 said?

24 A. Yes, I do.

25 Q. Have you practiced law in Austin since 1988?

121

1 A. Yes, I have.

2 Q. And what area of law do you focus on?

3 A. I'm a business lawyer.

4 Q. And before this case, have you and I ever met?

5 A. No.

6 Q. When you're not practicing business law,

7 Mr. Cronfel, what do you like to do in your spare time?

8 A. I love the outdoors. I love to exercise. I

9 like to ride bikes, and I like to go to the gym.

10 Q. Where do you normally bike?

11 A. In my neighborhood. I live in a neighborhood

12 off Southwest Parkway. It's called Travis Country.

13 I've lived there since 1995, and so I bike a lot in my

14 neighborhood. It's safe, or at least I thought it was,

15 but -- and I also bike in the greenbelt area right next

16 to there. I can drop down in there and do that.

17 Q. And how often would you bike in your

18 neighborhood, Mr. Cronfel, would you say on a weekly

19 basis?

20 A. If it's nice weather, like we have most of the

21 time here in Austin, I'll bike four to six times a

22 week, you know. During the rainy, cold times of the

23 month -- of the year, I don't bike as much, but I try

24 to get out as much as I can. I enjoy biking.

25 Q. In addition to biking, do you try to exercise

122

1 regularly?

2 A. Yes. I -- I go to the gym three to five times

3 a week. I really enjoy exercising.

4 Q. Do you exercise by yourself, or do you have a

5 personal trainer?

6 A. No. I have a trainer. I've had a trainer

7 since -- for about 12 years now, who oversees what I do

8 and makes up plans for me.

9 Q. Have you had the same personal trainer since

10 2004?

11 A. Yes, I have. His name is Shane Selberg, and

12 he's trained me for that long.

13 Q. When you exercise at the gym, do you do it

14 under the supervision of Mr. Selberg?

15 A. Yes, I do it under the supervision of the

16 trainer. He makes up plans for me. He watches how I'm

17 doing and tries to make plans that relate to what my

18 physical condition is at the time.

19 Q. I want to ask you about July 23rd, 2009, the

20 day of the incident that we're all here to talk about.

21 Okay?

22 A. Yes, sir.

23 Q. What -- excuse me. What were you doing that

24 day?

25 A. I had just gotten home from work. It was

123

1 about 6:00, 6:30 in the evening. It was a hot day, as

2 it usually is in July, and I wanted to go for a bike

3 ride. So I got on my bike and left my house and went

4 riding on my road bike.

5 Q. Was it still light out when you left your

6 house?

7 A. It was very -- very much so, yes.

8 Q. And where were you going?

9 A. I was going on one of my usual routes. I have

10 two or three routes that I take in the neighborhood

11 that I'm very familiar with, and I picked one of those.

12 So I was just headed down one of those familiar routes.

13 Q. On this particular route you were taking, how

14 many times do you think you've ever ridden that route?

15 A. Hundreds of times. I've been living in that

16 neighborhood since 1995.

17 Q. And since 1995, you've ridden your bike

18 through the neighborhood?

19 A. Many, many, many times.

20 Q. When you're riding your bicycle through the

21 neighborhood at Travis Country, you see folks out there

22 walking their dogs?

23 A. Yes, I do. It's almost invariably I see folks

24 walking their dogs when I'm coming home from work in my

25 car or leaving.

124

1 Q. Is it a neighborhood that, in your experience,

2 is fairly active with bike riders and dog walkers and

3 the like?

4 A. Yes. There's a lot of people walking their

5 dogs. There's a lot of bike riders. Since the

6 greenbelt is there, people are always coming in and out

7 of it, and it's very active.

8 Q. When you see folks out walking their dogs in

9 the Travis Country neighborhood, are they normally

10 holding onto a leash?

11 A. Invariably, yes. They're normally doing that,

12 yes.

13 Q. I'm going to show you a photograph that has

14 been admitted as Exhibit 1 in this case. And do you

15 recognize that photograph?

16 A. Yes, I do.

17 Q. Can you tell us what it is, please?

18 A. That's a street I was going down when the dog

19 attacked me.

20 Q. And were you riding your bicycle down this

21 street just before the incident?

22 A. Yes, I was.

23 Q. And when you were riding down the street, were

24 you riding in the same direction as that car that is

25 facing in that photograph?

125

1 A. Yes, I was.

2 Q. Were you riding a road bike?

3 A. Yes, I was.

4 Q. Were your feet clipped into the pedals?

5 A. Yes, they were.

6 Q. I want to ask you about the car that you see

7 in this photograph, Mr. Cronfel. Was that car there on

8 the day of the incident or were there more cars there?

9 A. I can't say that that car was there. There

10 was two or more cars that were there.

11 Q. In the same position as where that car is?

12 A. That's correct.

13 Q. As you approached these cars over by the curb,

14 did you see the defendant or his dog at all?

15 A. No, I didn't see either of them.

16 Q. And as you began approaching the cars,

17 Mr. Cronfel, how close were you to them?

18 A. Well, I wasn't close enough whereby I'd be

19 worried about a door opening or anything like that.

20 But I was far enough where I knew that I wasn't going

21 to have that problem.

22 Q. And you didn't see the defendant or his dog on

23 the sidewalk or anything like that?

24 A. No, I -- I never saw them.

25 Q. Did you later learn where the defendant and

126

1 his dog were just before this attack?

2 A. My understanding is that they were in a front

3 yard to the right of that vehicle.

4 Q. As you began passing the cars on the right,

5 tell us what happened next.

6 A. Well, I was clipped in my bike. I was focused

7 on what I was doing. I was ramping up, trying to get a

8 good workout. And as I was passing the edge of a car,

9 all of a sudden, this dog is coming at me like a

10 rocket. And it -- it smashed into my front end of the

11 wheel and knocked it up, and all the force that I had

12 going forward, pushed me down toward the ground, and I

13 was heading toward the ground. My head was headed

14 toward the ground. And I put my -- my -- luckily, I

15 was able to put my arm up, but all of that force went

16 into my arm and my wrist and my elbow, and I smashed

17 into the ground.

18 Q. When the dog impacted your wheel, would you

19 say that the wheel got knocked out from under you?

20 A. It hit the wheel and the wheel went up, and it

21 forced me down into the ground.

22 Q. Looking back at -- at the scene of -- of this

23 incident, were the cars obscuring your view of the

24 defendant and his dog, do you think?

25 A. I did not see them. I think that that would

127

1 be the case.

2 Q. Did you have any time to react or avoid the

3 dog?

4 A. I was -- the dog was on top of me. I had no

5 time to react, no.

6 Q. How fast do you think you were going at the

7 time of the impact with the dog?

8 A. I was picking up speed. I was going at a good

9 clip, trying to get a good workout in.

10 Q. Were you wearing a helmet?

11 A. Yes, I was.

12 Q. And what part of your body hit the pavement

13 first?

14 A. The first thing that hit the pavement was my

15 wrist, my forearm, elbow, and then my shoulder.

16 Q. Mr. Cronfel, can you describe for us the force

17 of the impact that you had with the pavement?

18 A. The force was violent. It was -- it was

19 terrible. It was -- it was scary, but it was very,

20 very violent.

21 Q. Describe how you felt as soon as you hit the

22 pavement.

23 A. I felt great pain. I -- I hit the pavement

24 and then I slid, and I felt the pain from the initial

25 impact and that violent impact. And then I slid on

128

1 that granular surface. Then it was 6:30 in the

2 evening, so it was burning hot, on top of that.

3 Q. You said you slid on the pavement. Do you

4 know how far you slid?

5 A. No, I don't know.

6 Q. Did you get any of that -- what do you call

7 that, road rash?

8 A. I got scrapes on my face. I got scrapes on my

9 arm and my elbow and on my leg.

10 Q. Mr. Cronfel, did you get up immediately after

11 you hit the pavement?

12 A. I couldn't get up. I was dazed. I was in

13 great pain. I was scared. I -- things were swirling

14 around.

15 Q. And tell us, just so we're clear, where you

16 were feeling the pain as you lay there on the roadway?

17 A. I was feeling the pain in my wrist and in my

18 forearm and elbow, part -- part of it in my shoulder.

19 Q. And how severe was the pain that you were

20 experiencing at that time?

21 A. It was severe enough that I -- I was scared

22 that something was really wrong.

23 Q. What happened next? Did you ever see the

24 defendant, Murray?

25 A. He hovered over -- I remember looking up, and

129

1 he was over me. And he tried to help me up by pulling

2 on my arm, but I yelped in pain. And he let me go,

3 went back on the ground. And then I think he took off

4 to go get his dog.

5 Q. Did Mr. Murray say anything to you at that

6 time?

7 A. I'm sure he said something, but it's -- I -- I

8 can't -- I don't know what he said.

9 Q. Okay. Did anyone else come over to check on

10 you?

11 A. Some children came over first, and then I

12 think their moms came over, and people started huddling

13 around me and started, you know, trying to help me. As

14 they were trying to help me come to and gather myself,

15 and they were -- they were caring for me. Slowly I

16 started to try to regain my composure. And they sort

17 of sat me up. And as I was regaining my composure,

18 they were asking me questions.

19 Q. How did you end up getting home?

20 A. Well, once I was able to sort of regain my

21 composure, the neighbor sort of stood me up. Some of

22 them kind of helped me up, and then they started

23 walking me toward a house. And a -- a man and his wife

24 took me into their house, and they sat me on the couch.

25 And the lady went and got some ice and some water and

130

1 she brought some Ibuprofen to me, and she started

2 putting the ice on where I was telling her it was

3 hurting. It turned out she was a nurse.

4 And she was looking at it and telling me,

5 You're probably going to have to go to the doctor. But

6 they -- they took care of me for a while and then, you

7 know, they watched me for a while, and then they got my

8 bicycle and they put it in their truck, and they gave

9 me a ride home. And they walked me into my house, sat

10 me on my couch. The lady got me some ice, and they

11 were very kind people.

12 Q. The neighbors that came to help you out, were

13 they kind to you?

14 A. Yes, very much so. I appreciate them. I

15 wouldn't have been able to get home without them.

16 Q. And not just the folks that came and actually

17 delivered you home, but for the others that gathered

18 around?

19 A. Yes. Yes. I'm glad I have neighbors like

20 that.

21 Q. Did you ever see the dog after he ran into

22 your bike and took off?

23 A. No, I never saw the dog again.

24 Q. So you don't know where --

25 A. I --

131

1 Q. I'm sorry.

2 A. I -- I did not see the dog.

3 Q. Okay. So you don't know where he ran off to?

4 A. I would imagine somewhere in the neighborhood,

5 but I don't know.

6 Q. Did you see a leash at any time when you saw

7 the defendant's dog that day?

8 A. I didn't.

9 Q. What did you do that night to help you deal

10 with the pain that you were experiencing?

11 A. I sat on the couch and I kept icing it, you

12 know, and then I tried to eat something, and then I

13 went to bed. And I -- hoping that things were okay,

14 kind of hoping it would go away. And I didn't sleep

15 well at all that night. I was in pain all night. And

16 next day, I went to the doctor.

17 Q. Can you tell us for certain whether or not

18 Mr. Murray was holding a leash in his hand at the time

19 the dog impacted your wheel?

20 A. I can tell you for certain that -- that that's

21 the case. He was not -- there was no human being next

22 to that dog when that dog slammed into me.

23 Q. The next day -- when did you first go and seek

24 medical attention?

25 A. The next day?

132

1 Q. The next day.

2 A. The next day.

3 Q. Yeah, what time the next day?

4 A. I don't remember, to tell you the truth.

5 Q. Where did you go to seek medical attention?

6 A. I went to go see my general practitioner,

7 whose name is Dr. Paul Keinarth.

8 Q. Mr. Cronfel, why didn't you go to the

9 emergency room that night?

10 A. Because I was hoping that I didn't have --

11 didn't have to go. I was hoping it would go away by

12 morning.

13 Q. I'm going to show you what's been admitted

14 into evidence in this case, an excerpt from

15 Dr. Keinarth's records. Have you seen this document

16 before?

17 A. Yes, I have.

18 Q. When you first went to Dr. Keinarth's office

19 the day after the attack, did you have pain in your

20 right shoulder?

21 A. Yes, I did.

22 Q. And you had pain in your right elbow, right

23 wrist, and right hand?

24 A. Yes, I did.

25 Q. And you see all those areas listed in the

133

1 medical records from Dr. Keinarth's office?

2 A. Yes, I do.

3 Q. Do you see where I've circled here, hopefully

4 for us to follow along. Do you see where it says,

5 right wrist edema and limited ROM?

6 A. Yes, I do.

7 Q. What does limited ROM of the right wrist mean?

8 Do you know?

9 A. My understanding, it means range of motion,

10 limited range of motion.

11 Q. Do you recall experiencing any problems with

12 your wrist range of motion on your right wrist from the

13 day after the attack?

14 A. Yes, I had limited range of motion.

15 Q. And is it your understanding that the term

16 "edema" means swelling?

17 A. Yes, my wrist was swollen.

18 Q. And your wrist was swelling on that -- on that

19 day when you saw Dr. Keinarth?

20 A. Yes.

21 Q. Do you recall if you were sent to get any

22 X-rays done at all?

23 A. Yes, I was sent to get X-rays.

24 Q. I'm showing you another excerpt from

25 Dr. Keinarth's records in this case. Have you seen

134

1 this document before?

2 A. Yes, I have.

3 Q. Do you recall getting those X-rays done at

4 Austin Radiological Association on July 24th, the day

5 after the attack?

6 A. Yes, I do.

7 Q. And what was your understanding of the results

8 of the X-ray of your right forearm on the day after the

9 attack?

10 A. My understanding was that I had broken the

11 radial bone down here by the elbow, and it was kind of

12 like -- like you look at a dog bone, right at the neck

13 where that part flares out across the neck.

14 Q. Were you surprised that you had suffered a

15 fracture of your radial bone?

16 A. No, I wasn't surprised.

17 Q. Why not?

18 A. Because of the impact and how violent it

19 was -- it was and how much it hurt and how it suffered

20 through the night.

21 Q. Did Dr. Keinarth treat you for any injuries,

22 or did he send you to someone else?

23 A. He put me in like a blue sling thing, and then

24 he sent me to see Dr. Carey Windler.

25 Q. Is that Dr. Carey Windler at Austin Sports

135

1 Medicine?

2 A. Yes, it is. Yes, it is.

3 Q. Do you recall the first date that you saw

4 Dr. Windler at Austin Sports Medicine?

5 A. It was shortly thereafter. It says July 29th,

6 2009.

7 Q. I'm showing you an excerpt from those records.

8 Do you recognize that document?

9 A. Yes, I do.

10 Q. What was your understanding of your course of

11 treatment after seeing Dr. Windler for the fractured

12 radius bone?

13 A. Dr. Windler explained that -- that because of

14 where that fracture was across the bone at the neck,

15 that there was a possibility that I would have to have

16 surgery, and that they would have to put a fake bone

17 like that there.

18 He explained to me that they may have to

19 separate my arm from my elbow, cut -- saw off that head

20 of the radius and then put a fake one in there, and

21 then I'd have to be in a cast and healing. And he said

22 that I would have to be in that sling for a couple of

23 weeks before they decided if they were going to have to

24 do surgery or not.

25 Q. How did that make you feel when you heard

136

1 that?

2 A. I -- when he described the process, I became

3 nauseous. I was breaking into a cold sweat. I -- I

4 couldn't believe it, and, you know, for the full two

5 weeks waiting to come back and see him, I was -- I

6 would break out in panic thinking about that surgery,

7 and wake up at night -- after I would roll on my arm

8 and it would wake me up, I would think about that, and

9 it would make me nauseous.

10 Q. Aside from the radius fracture that you saw

11 Dr. Windler for, did Dr. Windler offer any treatment to

12 you for your right wrist?

13 A. No. I told him about it, but he was focused

14 on this. I guess because of the severity of the

15 surgery and what he was concerned about.

16 Q. How long were you in a sling in your right arm

17 due to the radius fracture?

18 A. About two weeks. I went back two weeks later,

19 and, fortunately, I understood that I wasn't going to

20 need the surgery. And I was put in this big plastic

21 cast. It was like, instead of fiberglass or plaster of

22 paris, it was a big plastic thing with straps. And I

23 was in that for four to six weeks, or something like

24 that.

25 Q. Even when you were in that cast, did you still

137

1 experience pain from the fractured radius?

2 A. Yes. It was throbbing. It was hurting on a

3 daily basis. It was very painful.

4 Q. Did it interfere with your sleep at all?

5 A. Yes. I would roll over at night, and it would

6 be a very sharp pain, and it would wake me up, and it

7 was very difficult.

8 Q. And, again, talking about just the radius

9 fracture, on a scale of 1 to 10, how would you have

10 rated your pain from that fractured radius bone?

11 A. At -- at the first few weeks, it was 10. It

12 was pretty bad. And I'm right-handed as well, so it --

13 it created some problems, but the pain was very bad.

14 Q. Can you describe the type of pain you -- you

15 felt from that radius fracture? And by that I mean,

16 was it kind of a jabbing pain or dull pain?

17 A. It was -- it would be a constant dull pain.

18 And then if you'd move your wrist or try to use it, as

19 you would want to because you're right-handed, you'd --

20 you'd feel pain from, you know, bumping-into-something

21 pain, rolling-over-on-it pain. There was a constant

22 dull pain.

23 Q. What was that like, being right-handed and

24 being locked up in that long plastic cast?

25 A. It was a terrible experience. It was -- it

138

1 interfered with all my activities. Besides the pain, I

2 couldn't do the normal things that you would do when

3 you're right-handed. You can't write. You can't cook.

4 You can't do the things that you would normally do.

5 You can't even go to the bathroom, you know, without

6 struggling.

7 Q. While your arm was in the sling for the radius

8 fracture, Mr. Cronfel, were you experiencing any pain

9 in your right wrist?

10 A. Yes, I was. I had complained about the pain

11 from -- in my right wrist to Dr. Windler and

12 Dr. Keinarth.

13 Q. Were you more focused on the fractured radius

14 bone than you were the wrist at that time?

15 A. Yes, I was.

16 Q. How come?

17 A. Well, for one, I was concerned about the

18 surgery; and number two, the doctor seemed to be more

19 focused on that.

20 Q. Did you ever discuss your right wrist with

21 Dr. Windler?

22 A. On every occasion that I saw him, I discussed

23 it with him.

24 Q. I'm going to show you an excerpt from

25 Dr. Windler's records. Do you recall going to see

139

1 Dr. Windler on October 21st, 2009?

2 A. Yes, I do.

3 Q. And that was just less than about three months

4 after you were attacked by defendant's dog?

5 A. That's true.

6 Q. At that time, were you feeling any pain up by

7 the elbow where the fractured radius was?

8 A. My -- my elbow by that time was healing, and I

9 was feeling a lot better about that elbow. I was on my

10 way -- I was happy with where I was at that point with

11 regard to my elbow.

12 Q. Have you noted pain anywhere else in your

13 right arm or hand at that time?

14 A. In my wrist, in this area here.

15 Q. How long had you experienced that pain that

16 you just showed us?

17 A. From the moment that I had the impact from the

18 dog attack.

19 Q. Do you see where on this record it says,

20 quote, He has noted soreness in the region of the

21 distal radius and ulna. Do you see that?

22 A. Yes.

23 Q. Can you point us to where you were

24 experiencing that soreness?

25 A. The soreness was right here where this bone

140

1 is. This is where the radius -- well, the ulna comes

2 into the wrist.

3 Q. Do you see also where it says that you have

4 discussed the possibility of soreness in that area of

5 your wrist secondary to fracture of the radius bone?

6 A. Yes.

7 Q. Do you have an understanding of what that

8 means?

9 A. Well, that was the first time that I

10 understood that a break here can cause problems here.

11 Q. That a break up here by your elbow could cause

12 problems all the way down by your wrist?

13 A. Right.

14 Q. And even though your radius fracture had

15 healed, were you still concerned about the pain in your

16 wrist?

17 A. Yes.

18 Q. Now, despite the continuing pain in your right

19 wrist, what was your understanding of whether you

20 should try to engage in your regular activities at that

21 time?

22 A. I was told -- I understood, excuse me, that I

23 was to try to go back to my normal activities with pain

24 as a guide.

25 Q. And did you do that?

141

1 A. Yes. I tried my best to do that.

2 Q. Did you return at some point to Dr. Windler's

3 office regarding your right wrist pain?

4 A. Yes, I did.

5 Q. I'm showing you an excerpt, again, from

6 Dr. Windler's office notes. Have you seen this

7 progress note?

8 A. Yes, sir.

9 Q. This was a June 14th, 2010 visit to

10 Dr. Windler; is that right?

11 A. Yes, sir.

12 Q. Why did you go back to Dr. Windler on that

13 date?

14 A. Well, I went for two reasons. I was having

15 some knee problems at that time, but I also went to see

16 about my wrist as well.

17 Q. At that time -- actually, let me scratch that.

18 Did you and Dr. Windler review the July 24th, 2009

19 X-rays of your right wrist at that time?

20 A. Yes. We reviewed those -- the X-rays that

21 were taken after the day of the dog attack again.

22 Q. Do you know if Dr. Windler reread those July

23 24th X-rays and looked at the wrist with you?

24 A. Yes, he did.

25 Q. And just so we're all clear, the July 24, 2009

142

1 X-rays that you reviewed with Dr. Windler, those were

2 the ones -- those were the ones done the day after the

3 attack?

4 A. Yes, they were.

5 Q. And what was your understanding of the reread

6 of those July 24, 2009 X-rays?

7 A. My understanding was that I had -- that as a

8 result of the dog attack and the impact on the

9 pavement, my ligament across the hand, the scapholunate

10 ligament, was torn, and that I had broken a bone in the

11 wrist called the lunate, and there was pressure from

12 the ulna into my wrist as well.

13 Q. So it was your understanding that you had torn

14 a ligament in your right wrist?

15 A. That's correct.

16 Q. And that was the scapholunate ligament?

17 A. That's correct.

18 Q. And was it your understanding even at that

19 time that that was the from July 23rd, 2009 incident?

20 A. That's correct.

21 Q. Did you have any other injuries to your right

22 wrist from July 24th, 2009, through the visit you had

23 with Dr. Windler in June of 2010?

24 A. No, I did not.

25 Q. Did Dr. Windler at that time send you to get

143

1 another imaging study, an MR arthrogram of your right

2 wrist?

3 A. Yes, he did.

4 Q. And did you undergo that study?

5 A. Yes, I underwent that study.

6 Q. I'm showing you a document excerpted from

7 Dr. Windler's medical records. Have you seen this

8 document before?

9 A. Yes, I have.

10 Q. This document says it's an MR arthrogram of

11 your right wrist on June 22nd, 2010. Do you remember

12 doing that procedure at River Ranch Radiology?

13 A. Yes, I do remember undergoing that procedure.

14 Q. Can you explain to us what that procedure

15 entailed?

16 A. You arrive there, and they -- they -- they

17 took me into this room, which had a surgical bed. They

18 sat me down, and I had put on like a frock. And then

19 they put a big sheet over my wrist with a big hole over

20 the wrist -- over the wrist area here, a big sheet over

21 my arm. And then a nurse rolled in a tray with two big

22 shots, and then a doctor came in and put one shot in to

23 administer some kind of numbing. And then they took

24 the next shot with a much bigger needle, and it went

25 right into the joint so they could put the dye into the

144

1 joint.

2 And then after they did that, they put me

3 into a little -- little -- sort of a little -- an MRI

4 machine on a bed where they roll you in, and you're in

5 this enclosed space for 45 minutes, built like a

6 coffin, and makes these noises.

7 Q. Did that procedure hurt?

8 A. The needles hurt very much.

9 Q. But you also got the results of that MR

10 arthrogram. And do you recall reading the impressions

11 of that report?

12 A. Yes.

13 Q. And what was your impression at that time?

14 A. That I had, as a -- as a result of the tear,

15 that I had arthritis in my wrist and that there was

16 some changes, negative changes, bad changes.

17 Q. What do you mean "negative changes"?

18 A. That there had -- there had been -- arthritis

19 had been developed as a result of the scapholunate

20 tear, the large scapholunate tear.

21 Q. So was it your understanding that the reason

22 that you had arthritis on this June 2010 arthrogram --

23 let me strike that question.

24 A. Okay.

25 Q. What was your understanding of the reason you

145

1 had arthritis, as revealed by that arthrogram in June

2 of 2010?

3 A. I -- I had arthritis as a result of the tear

4 which was caused by the dog attack.

5 Q. And was -- just so we're absolutely clear, was

6 it your understanding that this was traumatic arthritis

7 as opposed to degenerative type of arthritis?

8 A. Yes.

9 MR. PAYNE: Objection; predicate, Your

10 Honor.

11 THE COURT: That's sustained.

12 Q. (BY MR. CAGLE) Did you review the 2010

13 arthrogram with your physicians?

14 A. Yes, I did.

15 Q. And were you familiar with the results of that

16 arthrogram?

17 A. I remember reviewing it.

18 Q. Because the results were part of your -- the

19 way you design your course of treatment?

20 A. That's right.

21 Q. Do you know if that 2010 arthrogram showed any

22 injury to your scapholunate ligament?

23 A. I can't read them, but I was -- I understood

24 it tore the scapholunate ligament.

25 Q. Prior to July 23rd, 2009, to your knowledge,

146

1 had you ever been diagnosed with a large scapholunate

2 ligament tear in your right wrist?

3 A. No, I had not.

4 Q. After Dr. Windler reread the July 23rd, 2009

5 right wrist X-ray and after you got these arthrogram

6 results, did you continue to treat with him or were you

7 sent elsewhere?

8 A. I was sent elsewhere.

9 Q. Were you sent to Dr. Robert Walters?

10 A. Yes, I was.

11 Q. I'm going to show you a page out of

12 Dr. Walters' records, which have been admitted into

13 evidence in this case. When did you first go see

14 Dr. Walters?

15 A. It says there August 4th of 2010.

16 Q. So a little more than a month after

17 Dr. Windler referred you over there?

18 A. Yes.

19 Q. Did Dr. Walters examine you during that visit?

20 A. Yes, he did.

21 Q. What area was he looking at during that

22 examination?

23 A. He was looking at my ulna and the radius.

24 Q. Did Dr. Walters give you a diagnosis at that

25 time?

147

1 A. Yes, he did.

2 Q. And what was your understanding of that

3 diagnosis?

4 A. His diagnosis was that they were going to have

5 to break my ulna and saw off a piece of the bone to

6 shorten it in order to make it equal to the radius so

7 that I wouldn't have the ulna smashing up into my hand

8 causing pain and problems.

9 Q. And so, Mr. Cronfel, are you familiar with the

10 term ulna impact syndrome?

11 A. Yes, I am.

12 Q. Did you ever discuss surgical treatment

13 options for your ulna impact syndrome with Dr. Walters?

14 A. Yes, I did.

15 Q. And can you tell us, in your own words, what

16 your understanding of that surgical procedure entailed?

17 MR. PAYNE: Objection; predicate.

18 MR. CAGLE: Your Honor, he has personal

19 knowledge of what his understanding of what the

20 surgical procedure was.

21 MR. PAYNE: Okay. Let me add repetitive.

22 We've gone through this with Dr. Lown.

23 THE COURT: I'm going to overrule that

24 objection.

25 MR. CAGLE: Thank you, Judge.

148

1 A. Can you ask the question again, please?

2 Q. (BY MR. CAGLE) Sure. Tell us briefly, if you

3 could, what was your understanding of this ulna

4 surgical procedure.

5 A. That they were going to break my ulna, saw off

6 a piece of it, and put two plates and screws into it.

7 Q. How did that make you feel when you heard that

8 that was the surgical plan?

9 A. When Dr. Walters explained this to me, I was

10 shocked. I was nauseous. I broke out in a cold sweat.

11 It was -- it looked like a medieval torture of some

12 sort. I couldn't believe that this was going to

13 happen.

14 Q. After that surgery, was it explained to you,

15 Mr. Cronfel, on August 4th, 2010 -- was there a day

16 that had gone by that you hadn't thought about that

17 surgery?

18 A. I know I thought about it a lot and it worried

19 me a lot. I had already experienced the inconvenience

20 and the problems of not being able to use my right

21 hand. And I had concerns about the pain and the

22 recovery associated with that; made me panicky and

23 nauseous to think about it.

24 Q. As you sit here today, have you had that ulna

25 surgery?

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1 A. Yes, I have.

2 Q. Before we go on with the injuries that we're

3 here to discuss and the surgery that you've already had

4 and the surgery that you're going to have,

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