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Kirsnneiner v. Home Depot U.S.A., Inc.
June 1, 2021
Eastern Dist. Ct. - Texas
Unpublished Opinion

Kirsnneiner v. Home Depot U.S.A., Inc.

United States District Court, E.D. Texas.



HOME DEPOT U.S.A., INC., Defendant.



Filed 06/01/2021



Pending before the court is Plaintiff Sara Kirchheiner’s (“Kirchheiner”) Partial Motion for New Trial (#94). Defendant Home Depot U.S.A., Inc. (“THD”), filed a response in opposition (#95). Having considered Kirchheiner’s motion, THD’s response, the submissions of the parties, the record, and the applicable law, the court is of the opinion that the motion should be denied.

I. Background

Kirchheiner brought suit for an injury she sustained sometime in January 2018, the exact date unknown, while in the course and scope of her employment with THD, a non-subscriber to Texas workers’ compensation insurance. Specifically, Kirchheiner, who worked in the customer service department, claims that while attempting to retrieve a customer’s order, she pulled a box of tile from a six-foot, eight-inch tall shelf and the box fell onto her neck and shoulder area (the “Incident”). Kirchheiner contends that the Incident caused injuries to her neck and shoulder and that she was eventually diagnosed with cervical radiculopathy.

On January 31, 2019, Kirchheiner filed her Original Petition in state court, asserting a cause of action for negligence against THD. On March 14, 2019, THD removed the case to this court. On February 22, 2021, the parties proceeded to trial, and, on February 26, 2021, the jury returned a verdict.

The jury charge consisted of a general charge with instructions on the applicable law and how it should be applied, followed by two special verdict questions. The first question asked if the negligence, if any, of THD proximately caused the occurrence in question. The second question, conditioned on the first, asked what sum of money, if any, if paid now in cash, would fairly and reasonably compensate Kirchheiner for her injuries, if any, that resulted from the occurrence in question, and went on to list seven categories of damages.1

The jury found that: (i) the negligence of THD proximately caused the occurrence in question; and (ii) Kirchheiner was entitled to $10,000 in damages for physical pain and mental anguish that she sustained in the past. The jury did not award her any recovery for the other categories of damages. Kirchheiner did not object to the jury verdict at the time it was announced, and, on March 10, 2021, the court entered Final Judgment (#88) on THD’s unopposed motion for entry of judgment (#87).

Kirchheiner contends that the damages awarded by the jury are so inadequate that the court should set aside the verdict and order a new trial on damages. Specifically, Kirchheiner asserts that she presented clear and uncontroverted evidence of damages for past medical expenses and past and future impairment.

II. Motion for a New Trial

“A new trial may be granted under Federal Rule of Civil Procedure 59 if the trial court finds that the verdict is against the weight of evidence; the damages awarded are excessive; the trial was unfair; or prejudicial error was committed.” Adams v. Ethyl Corp., 838 F. App’x 822, 827 (5th Cir. 2020) (citing Seidman v. Am. Airlines, Inc., 923 F.2d 1134, 1140 (5th Cir. 1991)); Six Dimensions, Inc. v. Perficient, Inc., 969 F.3d 219, 230 (5th Cir. 2020); Westfall v. Luna, No. 4:15-CV-00874-O, 2021 WL 750834, at *4 (N.D. Tex. Jan. 30, 2021). In a diversity case, such as this, federal law governs the sufficiency of evidence to warrant a new trial, while state law governs the scope of relevant evidence. McCaig v. Wells Fargo Bank (Tex.), N.A., 788 F.3d 463, 482 (5th Cir. 2015) (“In short, state law governs what the plaintiff must prove and how it may be proved; federal law governs whether the evidence is sufficient to prove it.”); Jackson v. Taylor, 912 F.2d 795, 797 (5th Cir. 1990).

“When a motion for new trial is based on insufficiency of the evidence, a stringent standard applies, and the motion should be granted only if the verdict ‘is against the great weight of the evidence, or it is quite clear that the jury has reached a seriously erroneous result.’ ” Westfall, 2021 WL 750834, at *4 (quoting Int’l Ins. Co. v. RSR Corp., 426 F.3d 281, 300 (5th Cir. 2005)). “Where a jury verdict is at issue, no abuse of discretion exists ‘unless there is a complete absence of evidence to support the verdict.’ ” Adams, 838 F. App’x at 827 (quoting Benson v. Tyson Foods, Inc., 889 F.3d 233, 234 (5th Cir. 2018)); accord Sabre Indus. Inc. v. Module X Sols., L.L.C., No. 19-30887, 2021 WL 365775, at *4 (5th Cir. Feb. 2, 2021) (“The district court thus ‘abuses its discretion by denying a new trial only when there is an absolute absence of evidence to support the jury’s verdict.’ ” (quoting Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 881 (5th Cir. 2013), cert. denied, 573 U.S. 904 (2014))). The court is “required under the Seventh Amendment to make a concerted effort to reconcile apparent inconsistencies in answers to special verdicts if at all possible.” Goff v. Pert, 741 F. App’x 211, 213 (5th Cir. 2018).

A. Medical Expenses

To recover past medical expenses, a plaintiff must establish that those medical expenses were (1) actually paid or incurred; and (2) reasonable and necessary. See Rutherford, 2015 WL 12582805, at *3 (explaining that medical expenses are limited to those actually paid or incurred); Metro. Transit Auth. v. Harris Cnty., No. 14-06-00513-CV, 2008 WL 4354503, at *6 (Tex. App. Aug. 26, 2008) (“Proof of amounts charged or paid is not proof of reasonableness, and the recovery of medical expenses will be denied in the absence of evidence showing the charges were reasonable and necessary.”); Wong v. Graham, No. 03-00-00440-CV, 2001 WL 123932, at *11 (Tex. App.—Austin Feb. 15, 2001, no pet.) (determining that, under the collateral source rule, the plaintiff should recover medical expenses “if the treatment and charges are reasonable to treat the patient,” regardless of whether the plaintiff, as opposed to the insurance company, paid for the service); see also Mascorro v. Wal-Mart Stores, Inc., No. EP-15-CV-00112-FM, 2016 WL 10567160, at *5 (W.D. Tex. May 2, 2016) (“A claim for past medical expenses requires evidence that the expenses incurred were reasonably necessary”).

While Kirchheiner concedes that THD’s medical expert, Bernie McCaskill, M.D. (“Dr. McCaskill”), contested the necessity of her surgery to treat cervical radiculopathy, she contends that she offered uncontroverted evidence of the necessity of her past medical treatment prior to her surgery, as well as the reasonableness of her past medical bills, through the testimony of her treating providers and via depositions by written questions that were attached to all of the medical records and bills presented to the jury. Depositions by written questions, however, do not conclusively establish the reasonableness and necessity of medical expenses, and the jury is not bound by these documents. See Gunn v. McCoy, 489 S.W.3d 75, 110 (Tex. App.—Houston [14th Dist.] 2016) (holding that, when reviewing a jury verdict, the court must consider “only the evidence and reasonable inferences favorable to the jury’s past medical expenses finding, and disregard[ ] all evidence and inferences to the contrary”), aff’d, 554 S.W.3d 645 (Tex. 2018); Gutierrez v. Martinez, No. 01-07-00363-CV, 2008 WL 5392023, at *10 (Tex. App.—Houston [1st Dist.] Dec. 19, 2008, no pet.).

Moreover, as THD points out, the jury also heard evidence that disputed the cause, nature, and severity of Kirchheiner’s injuries, as well as evidence that called into question Kirchheiner’s motivation for seeking medical care. For instance, evidence was presented that Kirchheiner failed to report the Incident when it occurred, waiting approximately six weeks to tell her supervisor. There was additional evidence indicating that Kirchheiner did not require any immediate medical treatment following the Incident and that she did not experience bruising or contusions as a result; in fact, she continued to work for several days following the Incident without any apparent problems. Furthermore, when Kirchheiner finally reported the Incident, on or about March 12, 2018, she also reported another alleged workplace injury that occurred in January 2018, wherein she purportedly strained her shoulder while lifting a window.

In addition, the jury heard evidence that several weeks passed before Kirchheiner told her medical providers that she believed the Incident was the cause of her pain. Specifically, Kirchheiner first sought medical treatment on January 18, 2018, when she went to the Altus Emergency Room. Her medical records from that visit do not describe any specific occurrence as the cause of her pain. On January 29, 2018, Kirchheiner sought treatment from Prospero Arante, M.D. (“Dr. Arante”), in connection with complaints of insomnia and right shoulder pain. She advised Dr. Arante that the pain started two weeks prior to her visit but did not report any “obvious precipitating injury.”

Kirchheiner was next seen at an emergency medical facility on February 5, 2018, where she complained of pain in her right shoulder. The records from that visit indicate that Kirchheiner stated that the injury occurred at work while attempting to lift a box from a top shelf at THD. Her records from that visit also report no evidence of injury to her head and extremities, that her back was normal, and that her neck demonstrated a full range of motion and was supple. A radiograph was completed and described no clear evidence of a traumatic injury. That same day, Kirchheiner also consulted Dr. Arante—again for shoulder pain—without indicating the cause of the pain.

On March 7, 2018, Kirchheiner saw Sassan Ehdaie, M.D. (“Dr. Ehdaie”), who noted that Kirchheiner “has been having neck pain as well as some low back pain off and on for the last 2 years.” Dr. Ehdaie’s notes do not indicate the cause of her pain.

There was also evidence presented at trial that Kirchheiner’s description of her pain changed and was inconsistent over time. On March 2, 2018, Kirchheiner consulted Marco Silva, M.D. (“Dr. Silva”), for the first time. Notably, On April 17, 2019, Dr. Silva signed a certificate for return to work stating that “Sara Kirchheiner was seen today and can return to work on 4/18/2019.” Dr. Silva ultimately diagnosed Kirchheiner with cervical radiculopathy and performed anterior cervical discectomy and fusion (“ACDF”) surgery on her neck to correct the condition on July 2, 2019, approximately a year and a half after the Incident.

THD’s expert witness, Dr. McCaskill, testified that Kirchheiner’s complaints were consistent with cervical radiculopathy, but stated that he did not believe there was any objective evidence of injury to explain those complaints. In addition, Dr. McCaskill testified that it was possible for cervical radiculopathy to develop without a precipitating injury. Dr. Silva agreed that there could be multiple other causes of disc herniations and protrusions, including “luck of draw.” Specifically, Dr. Silva acknowledged that Kirchheiner’s shoulder strain associated with lifting a heavy window at work, or even her prior automobile accident that occurred years before she began experiencing symptoms, could have caused her cervical radiculopathy. Dr. McCaskill also noted that more time had passed between the Incident and Kirchheiner’s onset of symptoms than he would expect if the Incident was indeed the cause of her cervical radiculopathy. Finally, as Kirchheiner concedes, Dr. McCaskill testified that he would not have recommended Kirchheiner for surgery to treat her cervical radiculopathy.

In addition, the jury heard evidence that Kirchheiner had a history of addiction to pain medication. In fact, in April 2018, Kirchheiner told Dr. Arante that she was addicted to pain medication, and subsequently, Dr. Arante terminated the doctor-patient relationship due to Kirchheiner’s drug-seeking behavior. THD argued that her addiction may have motivated her to seek medical treatment in order to acquire narcotics.

Thus, while the jury found that THD’s negligence proximately caused the Incident and awarded Kirchheiner $10,000 for past physical pain and mental anguish, the jury reasonably determined that her medical treatment and expenses were not necessitated by the Incident, but rather, were attributable to some other injury or motive.

B. Past and Future Impairment

Physical impairment is a distinct injury from pain and suffering and includes limitations on physical activities. See Estrada v. Dillon, 44 S.W.3d 558, 561-62 (Tex. 2001).

Physical impairment, which is sometimes called loss of enjoyment of life, encompasses the loss of the injured plaintiff’s former lifestyle. To receive damages for physical impairment, the injured party must prove that the effect of [her] physical impairment extends beyond any impediment to [her] earning capacity and beyond any pain and suffering to the extent that it produces a separate and distinct loss that is substantial and for which [she] should be compensated. A plaintiff must produce some evidence showing the tasks or activities she is unable to perform, unless the separate and distinct loss is obvious. However, a plaintiff need not prove an inability to perform an act that she was previously able to perform. Nor must a plaintiff prove egregious injuries to recover physical-impairment damages.

Lara Munoz v. Castillo, No. 13-18-00451-CV, 2020 WL 1856476, at *15 (Tex. App.—Corpus Christi Apr. 9, 2020, no pet.) (quoting Telesis/Parkwood Retirement I, Ltd. v. Anderson, 462 S.W.3d 212, 242 (Tex. App—El Paso 2015, no pet.)), supplemented sub nom. De Jesus Lara Munoz v. Castillo, No. 13-18-00451-CV, 2020 WL 1887807 (Tex. App.—Corpus Christi Apr. 14, 2020, no pet.).

With respect to Kirchheiner’s claims for past and future impairment, the jury heard evidence that Kirchheiner continued to work for weeks following the Incident and that many of the physicians she consulted during that time period did not impose any physical restrictions on her. Moreover, following the Incident, Kirchheiner’s mother-in-law, Stacy Kirchheiner, posted photographs to social media that portrayed Kirchheiner as physically active (e.g., working out at the gym, swimming with her children, and playing soccer with her husband). In addition, Stacey Kirchheiner testified that her daughter-in-law is able to take care of her four children and that she has an active lifestyle. Further, as previously mentioned, the jury heard evidence of Kirchheiner’s drug-seeking behavior, which may have affected her credibility regarding her subjective complaints of pain and impairment. The jury may have considered this evidence in deciding that Kirchheiner did not experience any cognizable impairment above and beyond pain and suffering. Thus, the jury reasonably concluded that Kirchheiner did not suffer compensable impairment as a result of the Incident.

C. Physical Pain and Mental Anguish in the Past

In Texas, there “is no set formula for finding the value that should be awarded for physical pain and mental anguish.” Conley v. Driver, 175 S.W.3d 882, 885 (Tex. App.—Texarkana 2005, no pet.). Because of the difficulty inherent in an assessment of such amorphous damages, the trier of fact “must be given discretion in finding mental anguish damages that would fairly and reasonably compensate the plaintiff.” Weidner v. Sanchez, 14 S.W.3d 353, 368 (Tex. App.—Houston [14th Dist.] 2000, no pet.); accord Primoris Energy Servs. Corp. v. Myers, 569 S.W.3d 745, 761 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (quoting Figueroa v. Davis, 318 S.W.3d 53, 62-63 (Tex. App.—Houston [1st Dist.] 2010, no pet.)); PNS Stores v. Munguia, 484 S.W.3d 503, 517-18 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (“In personal injury cases, the jury has discretion over the amount of damages.”). A fact-finder’s award of damages will be upheld as long as a plaintiff has “introduced direct evidence of the nature, duration, and severity of [her] mental anguish ... [establishing] that there was a substantial disruption in [her] daily routine.” Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995); accord Wolf v. Starr, 617 S.W.3d 898, 904 (Tex. App.—El Paso 2020, no pet.).

Here, Kirchheiner appears to assert that the jury’s award of $10,000 in damages for past physical pain and mental anguish necessitated an award of damages for past medical expenses and past and future impairment. Texas law, however, does not preclude a jury from awarding minimal damages for pain and mental anguish and excluding other categories of damages. As detailed above, evidence was presented at trial that would allow the jury to find reasonably that, although Kirchheiner experienced some pain from the Incident, an award of damages for past medical expenses and for past and future impairment was not warranted.

III. Conclusion

Accordingly, Kirchheiner’s Partial Motion for New Trial (#94) is DENIED.

SIGNED at Beaumont, Texas, this 1st day of June, 2021.



The seven categories included the following: (1) medical care expenses incurred in the past by Kirchheiner; (2) physical pain and mental anguish sustained in the past by Kirchheiner; (3) physical pain and mental anguish that, in reasonable probability, Kirchheiner will sustain in the future; (4) physical impairment sustained in the past by Kirchheiner; (5) physical impairment that, in reasonable probability, Kirchheiner will sustain in the future; (6) disfigurement sustained in the past by Kirchheiner; and (7) disfigurement that, in reasonable probability, Kirchheiner will sustain in the future.

End of Document