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Doctor v. Pardue9/15/2005
es. In their fourth issue, the Doctors argue that because there is uncontroverted evidence of Linda's loss of consortium as a result of Lad's injuries, the jury's finding of zero damages for Linda's past loss of consortium and $50,000 in damages for Linda's future loss of consortium are against the great weight and preponderance of the evidence.
EAA and Pardue do not respond to the Doctors' first four issues.
Standard of Review
To sustain a challenge to the factual sufficiency of a jury's failure to award damages or its award of inadequate damages, we consider and weigh all the evidence, both supporting and against the findings, in order to decide whether the verdict should be set aside. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Prescott v. Kroger Co., 877 S.W.2d 373, 374 (Tex. App.---Houston [1st Dist.] 1994, writ denied). We will uphold the jury's verdict unless it is so against the great weight and preponderance of the evidence as to be manifestly unjust or shocking to the conscience. Pool,715 S.W.2d at 635; Prescott, 877 S.W.2d at 374. We may not merely substitute our judgment for that of the jury. Pool, 715 S.W.2d at 635. We note that the jury is the sole judge of the credibility of witnesses and the weight to be given to their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). When, as in this case, the jury's failure to find greater damages in more than one overlapping category is challenged, we must first determine if the evidence unique to each category is factually sufficient. Id. at 775. If it is not, we must then consider all the overlapping evidence, together with the evidence unique to each category, to determine if the total amount awarded in the overlapping categories is factually sufficient. Id.
The Court's Charge
The charge asked the jury what sum of money would fairly and reasonably compensate Lad for his injuries resulting from the collision. It required the jury to answer separately for the following elements of damages: (1) physical pain and mental anguish sustained in the past; (2) physical pain and mental anguish that, in reasonable probability, will be sustained in the future; (3) disfigurement sustained in the past; (4) disfigurement that, in reasonable probability, will be sustained in the future; (5) physical impairment sustained in the past; (6) physical impairment that, in reasonable probability, will be sustained in the future; (7) reasonable expenses of necessary medical care in the past; and (8) reasonable expenses of necessary medical care that, in reasonable probability, will be sustained in the future. The charge also asked the jury what sum of money would fairly and reasonably compensate Linda for her past and future loss of consortium. It instructed the jury to "consider the elements of damages listed and none other," to "consider each element separately," and to "not include damages for one element in any other element."
In regard to Lad, the jury awarded $2.5 million in damages for future medical expenses and zero damages for past and future physical pain and mental anguish, past and future disfigurement, past and future physical impairment, and past medical expenses. In regard to Linda, the jury awarded zero damages for past loss of consortium and $50,000 for future loss of consortium.
The Evidence
In our determination of whether the verdict should be set aside, we now consider and weigh all the evidence, both supporting and against these findings.
Past and future physical impairment, physical pain and mental anguish, and disfigurement
In order to recover damages for physical impairment, "the effe
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