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Dunlap v. Excel Corp.6/27/2000
Appellant Patti Dunlap appeals from a take-nothing judgment on her claim for past and future loss of consortium as a result of her husband's personal injuries. We reverse and remand.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant's husband, Alvin Dunlap (Alvin), was employed as a truck driver for Reynolds Transportation. On November 15, 1993, Alvin's truck was being loaded at the Excel plant in Friona, Texas. Alvin was injured when he was struck by a hose and fell from the back of his tractor-trailer rig. His injuries were mainly to his lower back and his bladder. Alvin underwent spinal surgery to correct problems arising from his injury. For approximately ten months after his back surgery Alvin was required to wear a hard plastic cast extending from his neck to his waist during the day. Following his injury he developed bladder and sexual dysfunction. Alvin was ordered by his urologist to self-catheterize every four to six hours per day in order to maintain normal bladder function. His urologist suggested the use of papaverine injections or a pump to alleviate sexual dysfunction. The doctors directed Alvin to return periodically for blood tests and urine specimens so they could monitor his bladder condition.
Alvin returned to work as a truck driver in September, 1994. As was the case before the accident, he worked away from home during the week and returned to see his family on weekends. In June, 1997, Alvin developed chronic kidney failure and became unable to work. At the time of trial he was awaiting a kidney transplant and was required to undergo daily dialysis treatments.
In June, 1998, the case was called for trial by a jury. During voir dire several potential jurors were challenged for cause and were dismissed by the trial judge. One potential juror, a Mr. Rodriguez, had formerly worked for Excel and had been discharged. His wife was also a former employee of Excel and had a personal injury lawsuit pending against Excel. Rodriguez was planning to be a witness against Excel in his wife's case. Appellee's challenge of Rodriguez for cause was denied.
After the parties exercised their peremptory challenges and the names of those who would comprise the trial jury had been made known, but before the jury had been sworn, counsel for appellee renewed his objection to the trial court's failure to discharge panel member Rodriguez for cause. Appellee's counsel advised the trial judge that he had been required to use a peremptory challenge against Rodriguez and identified three members of the jury who were objectionable and the reasons they were objectionable. No question of disability was raised as to any of the jurors. The trial judge then granted appellee an additional peremptory challenge. Appellant's counsel objected because the peremptory strike lists had already been turned in and the names of the persons who were not stricken and who would therefore comprise the jury had been made known to the parties. The objection was overruled, and counsel for appellee used the additional peremptory challenge to strike one of the twelve names that had been made known to the parties and the judge as comprising the jury. The judge and all counsel were aware that following appellee's use of its extra peremptory strike against one of the persons previously disclosed as being on the jury, April Gober, who was not one of the original twelve jurors selected, would become a juror.
At the conclusion of trial, the jury found that the negligence proximately causing Alvin's injury was attributable 50% to Alvin and 50% to appellee. The jury found damages to Alvin in the amount of $1,300,000 for past and future physical pain and mental anguish, loss of earning capa
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