SERVICIOS DE UBICACIÓN

Whitaker, the court noted “A plaintiff can prove reasonableness and necessity of past

necessity or (2) an affidavit prepared and filed in compliance with section 18.001 of the Texas Civil Practice and Remedies Code.” Id., (citing Texarkana Mem'l Hosp., Inc. v.

Murdock, 946 S.W.2d 836, 840 (Tex. 1997)). In Whitaker, the plaintiff offered only

unsworn documentary evidence in support of their claim for medical expenses, consisting of “medical records, doctors' reports, pain assessment reports, and an itemized statement of services rendered and charges incurred.” The court in Whitaker held that the evidence did not satisfy the requirements set forth by section 18.001 because the records were not affidavits. Whitaker, 218 S.W.3d at 223.4 The records in Whitaker were “statements of facts about the medical care provided to [the plaintiffs], but they were not under oath, and therefore, they do not satisfy the affidavit requirement of section 18.001.” Id. citing TEX. CIV. PRAC. & REM.CODE ANN. § 18.002(a)-(b) (Vernon 1997) (example forms of affidavits for doctor or custodian of records evidencing the basic requirements of section 18.001). Accordingly, the Whitaker court held that, because there was no expert testimony or an affidavit in compliance with Section 18.001, there was legally insufficient evidence to support an award for reasonable and necessary medical expenses.

It is undisputed that Appellees did not present expert testimony as to the reasonableness and necessity of the medical expenses involved. It is also undisputed that Appellees did not satisfy Section 18.001. Instead, just as in Whitaker, Appellees relied on the unsworn medical notes of Dr. Silva, wherein he merely states in conclusory, boilerplate fashion that the medical expenses were reasonable and necessary. As with the

4

“An affidavit is a statement of facts sworn to as the truth before an officer authorized to administer oaths.”

requirement that causation be proved by reliable expert testimony, using “magic words” in an unsworn medical record alone is not sufficient to demonstrate the reasonableness or necessity of past medical expenses. Jelinek, 328 S.W.3d at 540; Larkins, 258 S.W. 3d at 693; Crye, 907 S.W.2d at 500; Wright, 79 S.W.3d at 53. Dr. Silva’s notes provide nothing more than” magic words” to support the reasonableness and necessity of the medical expenses in this case, and such is legally insufficient to demonstrate this essential requirement of recovering the claimed medical expenses.

Importantly, even if the conclusory statement of Dr. Silva is credited as evidence of the reasonableness and necessity of the medical expenses, such would only apply to the expenses incurred to the point of Dr. Silva’s clearance and release from treatment a mere six weeks after the accident. No other mention of the reasonableness and necessity of the medical expenses appears at any point in the record after that date. Thus, even if the conclusory statement in Dr. Silva’s release report is legally sufficient to support the reasonableness and necessity of the medical expenses as of November 8, 2004, the evidence is factually insufficient to support the total amount of medical expenses claimed by Appellees.

In short, the evidence asserted as supporting the reasonableness and necessity of the medical expenses claimed in this case is both legally and factually insufficient. Because, such evidence is necessary to prove both that Appellees would have prevailed and the amount of damages that would have been recovered in the underlying personal injury suit, Appellees’ claim for legal malpractice must be reversed for failing to prove

the essential elements of the “suit within the suit.”

D. Appellees’ evidence of lost wages is legally insufficient.

In similar fashion to the evidence of causation, the evidence as to the amount of lost wages fails. Although Appellees’ legal practice expert, Mr. Weinkauf, testified as to the amount of lost wages that allegedly would have been recovered, his testimony is flawed by its speculative nature. Coastal Transp. Co., Inc. v. Crown Cent. Petroleum

Corp., 136 S.W.3d 227, 232 (Tex. 2004). A brief examination of Mr. Weinkauf’s

opinions reveals that his testimony is legally no evidence of economic damages. For instance, Mr. Weinkauf based his calculation on the speculative assumption that Mr. Hooper would have worked for six years after the automobile accident – from age 59 to age 65. 4 RR 5:22-6:4. Mr. Weinkauf assumed that Mr. Hooper would have continued to make an average of $30,000/year for that six year period. Id. Mr. Weinkauf concluded that Mr. Hooper incurred damages of $180,000 for lost wages. Id. What Mr. Weinkauf did not take into account is the fact that Mr. Hooper died at age 64. Additionally, Mr. Weinkauf did not account for the fact that Mr. Hooper was diagnosed with pancreatic cancer, and likely would not have worked in the last months of his life. Mr. Weinkauf did not even know when Mr. Weinkauf had been diagnosed with cancer. 4 RR 60:21-21. Therefore, Mr. Weinkauf overestimated the amount of future potential income by as much as a year or more.

Mr. Weinkauf, in reaching his estimations, also did not take into account the economic downturn in the housing market when calculating Mr. Hooper’s potential

income from his real estate activities, and more importantly, failed to consider the fact that Mr. Hooper was deceased at the time of trial. 4 RR 59:15-18. Mr. Weinkauf admitted that his estimations were based purely on assumptions and that he has no expertise in real estate sales in order to extrapolate the potential lost income Mr. Hooper might have experienced. 4 RR 59:24-60:11.

The above demonstrates that Mr. Weinkauf’s testimony is based almost entirely on impermissible assumptions and speculation. Thus, Mr. Weinkauf’s testimony is legally insufficient to support a claim for lost wages.

E. The trial court erred in submitting a broad form damages question in the jury charge that comingled valid and invalid elements of damages.

In addition to the lack of evidence on causation, the reasonableness and necessity of the claimed medical expenses, and lost wages, Appellants also objected to the submission of a broad-form damages question in this case, which resulted in the trial court submitting valid and invalid elements of damages for the jury’s consideration. In

Harris County v. Smith, the supreme court held that it was error to submit a single broad-

form damages question that contains both proper and improper elements of damages.

Harris County v. Smith, 96 S.W.3d 230, 233–34 (Tex. 2002). In that case, the supreme

court concluded the trial court erred in overruling the defendant’s objection to the charge, “which mixed valid and invalid elements of damages in a single broad-form submission, and that such error was harmful because it prevented the appellate court from determining ‘whether the jury based its verdict on an improperly submitted invalid’

element of damage.” Id. at 234 (quoting Crown Life Insurance Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2000)); see also TEX. R. APP. P. 44.1(a). That is precisely the situation in the present case. 2 RR 46.

The invalid elements of damages arise firstly from the fact that medical expenses and lost wages were included in the global damages questions for which there was insufficient evidence. See supra (discussion of insufficient evidence of causation and the reasonableness and necessity of medical expenses and lost wages). The global damages question, however, included additional improper elements of damages. As seen below, the trial court charged the jury as follows:

QUESTION NO. 2

Answer Question No.2 if you answered yes for any of the persons listed in Question No. 1. Otherwise, do not answer the following question.

What sum of money, if paid now in cash, would Charles Hooper have recovered and collected in his suit against Mrs. M.C. Morse (Alice Morse) if his suit had been properly prosecuted.

Answer in dollars and cents, for damages, if any.

Charles Hooper Answer: ____________ In determining the amount of damages, you may consider the following: a. Physical pain and mental anguish sustained in the past.

b. Physical pain and mental anguish that, in reasonable probability, would have been sustained in the future.

c. Loss of earning capacity sustained in the past.

sustained in the future.

e. Disfigurement sustained in the past.

f. Disfigurement that, in reasonable probability, would have been sustained in the future.

g. Physical impairment sustained in the past.

h. Physical impairment that, in reasonable probability, would have been sustained in the future.

i. Medical care expenses incurred in the past. J. Loss of household service sustained in the past.

k. Loss of household services that, in reasonable probability, would have been sustained in the future.

l. Loss of consortium sustained in the past.

m. Loss of consortium that, in reasonable probability, would have been sustained in the future.

“Household services” means the performance of household and domestic duties by a spouse to the marriage.

“Consortium” means the mutual right of the husband and wife to that affection, solace, comfort, companionship, society, assistance, sexual relations, emotional support, love, and felicity necessary to sustain a successful marriage.

You are instructed that any monetary recovery for loss of earning capacity is subject to federal income taxes.

CR 239-40 (emphasis added).

plaintiff who was deceased at the time of trial.5 Upon Mr. Hooper’s death from cancer, any potential for future damages ended and only the recovery of past damages was possible.

Likewise, Question number 3, regarding Jeannette Hooper’s damages, is similarly flawed. Question number 3 read as follows:

QUESTION NO. 3

Answer Question No.3 if you answered yes for any of the persons listed in Question No. 1. Otherwise, do not answer the following question.

What sum of money, if paid now in cash, would Jeannette Hooper have recovered and collected in her suit against Mrs. M.C. Morse (Alice Morse) if her suit had been properly prosecuted.

Answer in dollars and cents, for damages, if any.

Jeannette Hooper Answer: ____________ In determining the amount of damages, you may consider the following: a. Physical pain and mental anguish sustained in the past.

c. Medical care expenses incurred in the past. J. Loss of household service sustained in the past.

k. Loss of household services that, in reasonable probability, would have been sustained in the future.

l. Loss of consortium sustained in the past.

m. Loss of consortium that, in reasonable probability, would have been sustained in the future.

5

It should be noted that Mr. Hooper died from pancreatic cancer and his death was completely unrelated to the automobile accident in this case.

“Household services” means the performance of household and domestic duties by a spouse to the marriage.

“Consortium” means the mutual right of the husband and wife to that affection, solace, comfort, companionship, society, assistance, sexual relations, emotional support, love, and felicity necessary to sustain a successful marriage.

You are instructed that any monetary recovery for loss of earning capacity is subject to federal income taxes.

CR 241 (emphasis added).

Again, just as in Question 2, the jury was permitted to award future damages for loss of household services and loss of consortium regarding Mr. Charles Hooper, who had died from cancer before trial. 2 RR 46. Had Charles Hooper died as a result of the injuries sustained in the underlying personal injury action, then perhaps such future damages might have been properly awarded to Mrs. Hooper. However, because Mr. Hooper’s death was the result of pancreatic cancer, and not the underlying personal injury, Appellees could not recover future damages allegedly arising after his death.

Because the jury charge in this case included a broad-form damages question that comingled valid and invalid elements of damages, this Court is prevented from determining “whether the jury based its verdict on an improperly submitted invalid” element of damage. Casteel, 22 S.W.3d at 388; see also Smith, 96 S.W.3d at 233–34; see

also Whitaker, 218 S.W.3d at 224. Thus, according to Texas Supreme Court precedent,

F. Relief requested.

Because there is legally insufficient evidence of causation to prove that Appellees would have prevailed in the underlying “suit within a suit” Appellants respectfully request that this Court reverse the trial court’s judgment and render judgment in favor of Appellants. In the alternative, should this Court decide that there is some evidence of causation, the court should still reverse and remand the case due to the lack of factually sufficient evidence of causation as to all of the claimed damages.

Likewise, because the evidence of the reasonableness or necessity of the medical expenses, and the evidence of lost wages in this case is legally insufficient, Appellees respectfully request that this Court reverse and remand the case for a new trial to determine the appropriate those damages, if any. In the alternative, should this Court decide that there is some evidence of the reasonableness and necessity for some, but not all of the medical expenses in this case, Appellants respectfully request that the Court remand for a new trial. The above requested relief is supported by the Texas Supreme Court’s opinion in Guevara, wherein upon finding there was sufficient evidence to support some, but not all of the damages in the case, the Court remanded the case to the court of appeals for appropriate remittiturs or, if not possible, remand for a new trial.

Guevara, 247 S.W.3d at 670. Remittitur, although a potential remedy in Guevara, is not

possible in this case due to the broad-form damages submission. Thus, if this case is not reversed and rendered based on legally insufficient evidence, this Court should remand the case to the trial court for a new trial. Harris County v. Smith, 96 S.W.3d 230, 236

(Tex. 2002).

PRAYER

Appellants pray that this Court reverse the judgment of the trial court and as requested immediately above, either render judgment in favor of the Appellants or remand to the trial court for a new trial.

Respectfully submitted,

KELLY, DURHAM & PITTARD, LLP By: /s/ Sean R. Cox

Sean R. Cox

State Bar No. 24031980 Kirk L. Pittard

State Bar No. 24010313 F. Leighton Durham III State Bar No. 24012569 P.O. Box 224626

Dallas, Texas 75222 (214) 946-8000 (214) 946-8433 fax

CERTIFICATE OF SERVICE

This is to certify a copy of the Brief of Appellants was forwarded to all counsel of record on the 14th day of November, 2011 as follows:

B. Prater Monning III State Bar No. 14269700 Wynne & Wynne

137 W. James Street Wills Point, Texas 75169

/s/ Sean R. Cox

APPENDIX

June 17, 2011 Judgment of the Trial Court ... Tab 1 Jury Charge and Verdict ... .Tab 2

TAB 1 

TAB 2