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Morrell v. Finke11/3/2005
its value in "today's dollars"); Nguyen v. Los Angeles County Harbor/UCLA Med. Ctr., 48 Cal. Rptr. 2d 301, 309-10 (Cal. Ct. App. 1995) (same). Because the record contains evidence indicating that Madeline would require between $4.2 and $5.4 million in future medical expenses in "today's dollars," we overrule Defendants' contention that the Morrells' life-care planner failed to reduce the cost of Madeline's medical care to present value. We likewise decline to order a remittitur because the evidence that Madeline will require between $4.2 and $5.4 million in future medical expense is factually sufficient to support the jury's award of $3.5 million in future medical expenses. See, e.g., Wal-Mart, 929 S.W.2d at 528 (explaining that appellate court cannot order remittitur when damage evidence is factually sufficient).
We overrule Dr. Finke and the clinic's third issue and the nurses and the hospital's second issue.
C. Nurse Fenton's Joint and Several Liability
In their third issue, the nurses contend that the trial court's judgment erroneously imposes joint and several liability on Nurse Rose Fenton even though the jury found her to be only five percent proportionately responsible for causing Madeline's injuries. The proportionate responsibility statute does not permit the imposition of joint and several liability upon a party found to be five percent liable. See TEX. CIV. PRAC. & REM. CODE ANN. ยง 33.013 (Vernon 2004). We sustain the nurses' third issue.
D. Donna and Robert Morrell's Claim, Individually, Against the Nurses for Past Medical Expenses
In their fourth issue, the nurses argue that Donna and Robert's claim, individually, against them for Madeline's medical expenses is barred by the statute of limitations. The nurses pleaded the affirmative defense of limitations and moved for JNOV on the ground that limitations barred this claim, thus preserving the issue for our review. See TEX. R. APP. P. 33.1; CDB Software, Inc. v. Kroll, 992 S.W.2d 31, 35 (Tex. App.--Houston [1st Dist.] 1998, pet. denied).
1. Standard of Review
A JNOV is proper when a directed verdict would have been proper. See TEX. R. CIV. P. 301; Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex. 1991); CDB Software, Inc., 992 S.W.2d at 35. A motion for JNOV should be granted when the evidence is conclusive and one party is entitled to recover as a matter of law or when a legal principle precludes recovery. Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex. 1990). 2. Limitations
a. Parents Possess Claim for Child's Medical Expenses
Texas courts have long recognized that a minor has a well-defined common law cause of action to sue for injuries negligently inflicted by others. Sax v. Votteler, 648 S.W.2d 661, 666 (Tex. 1983) (citing Tex. & P. Ry. Co. v. Morin, 66 Tex. 225, 18 S.W. 503 (1886); Houston & Great N. R.R. Co. v. Miller, 51 Tex. 270 (1879); and Fall v. Webber, 47 S.W.2d 365 (Tex. Civ. App.--Dallas 1932, writ ref'd)). A child's cause of action, however, is distinctly separate from the parent's right to recover damages for injuries to his children. Sax, 648 S.W.2d at 666. A child may recover damages for pain and suffering as well as for other damages she may accrue after she reaches the age of majority. Id. Parents, however, possess a cause of action to recover medical expenses incurred by their minor children through the date the child attains majority and for the loss of services and earnings of an unemancipated minor. Id.; Kennedy v. Mo. Pac. R. Co., 778 S.W.2d 552, 555 (Tex. App.--Beaumont 1989, writ denied); Kennedy v. Kennedy, 505 S.W.2d 393, 397 (Tex. Civ. App.--Austin 1974, no writ); Be
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