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Collin County v. Rogers5/25/2000
In this personal injury case, Collin County appeals a judgment in favor of Jason Rogers, challenging in two issues the legal sufficiency and, in the alternative, the factual sufficiency of the evidence supporting the award of damages for future medical care. Because there is no expert evidence that Rogers will, in reasonable probability, incur future medical expenses, we reverse that part of the judgment awarding Rogers damages for future medical care and render judgment that Rogers take nothing on that claim.
FACTUAL AND PROCEDURAL BACKGROUND
Automobiles driven by Rogers and Collin County Sheriff's Deputy Timmy Alan Overbey collided at a county road intersection in Collin County in November 1993. Rogers asserted negligence claims against Collin County and Overbey. Rogers claimed waiver of Collin County's immunity under the Texas Tort Claims Act and that Overbey was a Collin County employee acting within the scope of his employment or official duties, and in furtherance of his employment or duties. Both Collin County and Overbey answered, invoking immunity under the tort claims act and asserting that Rogers was contributorily negligent.
Rogers's claims against Overbey and Collin County proceeded to trial. Rogers and Overbey testified at trial, and Rogers's medical records were admitted. Liability and damage issues were submitted to the jury. Over Collin County's objections, the trial court submitted question 3(f) to the jury, which asked what sum of money would fairly and reasonably compensate Rogers for "medical care, that, in reasonable probability, Jason Rogers will sustain in the future." The jury found Rogers twenty-five percent liable and Overbey seventy-five liable for the collision. To question 3(f), the jury answered, "$15,000." The trial court's modified final judgment ordered that Rogers recover from Collin County damages for past and future physical pain and mental anguish, past and future medical care, pre- and post-judgment interest, and costs. Collin County filed a motion for new trial asserting, in part, that the evidence was legally and factually insufficient to support the jury's damage award for future medical expenses. The motion for new trial was overruled by operation of law, and this appeal followed.
FUTURE MEDICAL EXPENSES
In its two issues, Collin County argues that the evidence is not legally or factually sufficient to support the award of future medical expenses because Rogers wholly failed to produce expert testimony or expert expression in the medical records showing that medical care would be reasonably necessary in the future. Rogers responds that the physicians who treated him for his symptoms repeatedly used the word "chronic," as, for example, Dr. John J. Regan, M.D.,'s diagnosis of "chronic cervical [that is, neck] syndrome" and "chronic neck and bilateral shoulder pain," and the jury could conclude that his injuries were chronic and permanent and that he would continue to need treatment "lasting for his lifetime."
Applicable Law
This Court has previously made the determination of the quality of evidence that is required to establish damages for future medical expenses. In Williams Distributing Co. v. Franklin, 884 S.W.2d 503 (Tex. App._Dallas 1994), aff'd in part & rev'd in part on other grounds, 898 S.W.2d 816 (Tex. 1995) (per curiam), we held that, to recover future medical expenses, a plaintiff must show that "there is a reasonable probability expenses accruing from his injury will be necessary in the future." Id. at 510 (citing Fisher v. Coastal Transp. Co., 149 Tex 224, 227-29, 230 S.W.2d 522, 523-25 (1950)). This showing requires proof of two elements:
(1)
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