Date: 05-16-2022

Case Style:

Chidi Ononiwu v. Theodore Eisenbach

Case Number: 01-20-00131-CV

Judge: Gordon Goodman

Court:

Court of Appeals For The First District of Texas

On appeal from The 295th District Court of Harris County

Plaintiff's Attorney: Caroline Carter
Michael Cancienne

Defendant's Attorney:

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Ononiwu sued Eisenbach for negligence seeking damages for past and future
physical pain, physical impairment, and mental anguish. At trial, Eisenbach
stipulated to liability for the accident and the issue of damages went to a jury.
Three witnesses testified, Ononiwu; Eisenbach; and a non-treating
chiropractor, Dr. Eric Randolph. Ononiwu also introduced affidavits on his medical
expenses that attached medical records concerning his treatment and its cost.
Ononiwu’s Testimony
Ononiwu testified that he was stopped at a red light when Eisenbach rearended him. Ononiwu did not know how fast Eisenbach was traveling at the time of
the collision. But Ononiwu’s airbags did not deploy, and he agreed that it was a
minor accident. After the collision, Ononiwu and Eisenbach got out of their cars and
exchanged information. They did not call the police. Nor did Ononiwu call an
ambulance or go to an emergency room. When Ononiwu left the accident scene, he
went grocery shopping and then returned home and watched television.
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Ononiwu felt pain in his lower back down into his hip and in his right wrist
two or three days later. He iced his wrist but did not take any painkillers.
Ononiwu first sought treatment the following week. He went to a chiropractic
clinic two or three times, where he received an x-ray test and was evaluated. But
Ononiwu switched to another clinic, DeLoache Chiropractic, eight days after the
accident. At trial, he testified that he changed clinics because DeLoache was closer.
At his deposition, however, he had said his lawyer referred him to DeLoache.
Records from DeLoache show Ononiwu initially described his pain as a 9 on
a scale of 1–10. DeLoache examined him, took an x-ray, and provided physical
therapy. Ononiwu initially had physical therapy three times a week. DeLoache also
recommended that Ononiwu have an MRI, which was administered about five or six
weeks after the accident. His MRI showed two disk protrusions or herniations. It
also showed a possible contusion on his right wrist. However, Ononiwu conceded
he had never had an MRI before the accident and therefore did not know how long
the disks in his back had been herniated.
Ononiwu later sought treatment from a pain-management doctor at
Woodlands IP Pain Center for his back and wrist pain. The doctor recommended
that Ononiwu continue participating in physical therapy three times a week for six
weeks and prescribed a painkiller. He also recommended “lumbar transforaminal
epidural steroid injections,” and Ononiwu received them. The doctor further
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recommended “a right wrist joint block injection,” but Ononiwu declined this
procedure. Ononiwu testified that the treatment he received helped him recover.
According to Ononiwu, the pain from the accident interfered with his daily
routine. He testified that it affected him while driving, working, playing basketball,
and working out. He had to alter his workouts during this period to avoid exercises
that would aggravate his back. But he continued to make workout exercise videos
despite his injuries. He said getting in and out of his car and sitting in it hurt. He also
stated that the pain had interfered with his sleep for about a month.
Ononiwu stopped going to DeLoache for therapy about two and half months
after the accident. He sought no further treatment for the injuries he sustained in the
accident. Ononiwu testified that he did not have any future appointments scheduled.
He agreed that his back and wrist had healed and that neither hurt at the time of trial.
But Ononiwu clarified that he simply meant he was now “pain free.”
Ononiwu relied on several medical-provider affidavits to establish the cost of
the medical treatment he required after the accident. These affidavits show he
incurred $25,056.18 in medical expenses. He agreed that he did not suffer any
emotional distress as a result of the accident.
Ononiwu testified that he was in a second automobile accident a few months
after the one with Eisenbach. In the second accident, Ononiwu’s back was injured
5
again. His injuries from the first accident with Eisenbach had already healed by the
time the second accident occurred.
Randolph’s Testimony
The defense sought to exclude Randolph on several grounds. Among other
things, the defense objected that Randolph had not treated Ononiwu and lacked the
expertise necessary to opine about MRIs.
On voir dire, Randolph testified that he was a chiropractor, not a medical
doctor. But he has not been a practicing chiropractor for 10 years, and he does not
see patients. He has not referred a patient for an MRI during the preceding decade.
He currently owns two companies, one of which is an imaging center that performs
MRIs. The other company he owns is a management company. This second
company essentially coordinates a network of physicians and chiropractors who see
patients who are plaintiffs or potential plaintiffs in personal-injury cases. Randolph
had not met Ononiwu until the day of trial. Randolph had not reviewed Ononiwu’s
medical records until the week of trial. He reviewed the radiologist’s reports about
Ononiwu’s MRIs but not the MRI films. As a chiropractor, Randolph does not write
MRI reports. Radiologists do so because it lies within their expertise.
The trial court ruled that Randolph could testify but limited his testimony in
two respects. First, the court ruled that he could not testify about future medical
expenses because that topic was not identified in Ononiwu’s disclosures. Second,
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the court ruled that he could testify that it was reasonable to perform MRIs on
Ononiwu but that he was not qualified to interpret the MRIs performed on Ononiwu
or testify about the radiologist’s MRI reports. In essence, the court ruled that
Randolph could testify as a chiropractor but not outside his expertise on topics like
radiology and pain management.
On direct, Randolph testified that he is a licensed chiropractor. He is board
certified in whiplash and brain traumatology, accident reconstruction, and x-ray
interpretation. He has 17 years experience with radiology, which includes x-rays and
diagnostic imaging. However, Randolph further testified that MRIs differ from
radiology and that he lacks the relevant board certification as to MRIs. In addition,
he agreed that chiropractors do not perform MRIs. Randolph testified that he
nonetheless has the necessary training to read MRIs.
Randolph owned an imaging center, an MRI center, and a healthcare
management company when Ononiwu sought treatment. Randolph’s companies, or
ones in his referral network, treated Ononiwu, specifically Champions MRI, Texas
Surgery Medical Center, DeLoache, and Woodlands IP. Randolph was familiar with
the relevant medical and billing records.
Ononiwu’s x-rays of his lumbar spine did not show any fractures. But they
did indicate muscle spasms, which occur when muscles contract to protect the body
from injury or damage. The x-rays also indicated some slight posterior wedging or
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herniation of a disk in Ononiwu’s back, which Randolph demonstrated for the jury
using a model. A chiropractor tries to alleviate the pain caused by such injuries by
correcting such displacements so that the patient’s bones are positioned as they
normally would be.
Randolph testified that chiropractors are qualified to read and interpret MRI
films and reports. Defense counsel objected that the trial court had ruled Randolph
was unqualified to testify on these topics, and the trial court sustained the objection.
Randolph then testified that Ononiwu’s treating chiropractor referred him to a
radiologist for an MRI. An MRI report stated that Ononiwu had a “patchy marrow
edema,” which Randolph said indicated “a deep bruise in the bone of the wrist.”
Based on the report, Ononiwu’s chiropractor referred him for pain management.
When Randolph tried to testify as to his interpretation of the MRI with respect to
Ononiwu’s lumbar spine, defense counsel objected again. The trial court sustained
the objection. Randolph then testified without objection that a chiropractor would
have found disk protrusion or herniation significant because it can cause the kind of
radiating pain Ononiwu described.
On cross, Randolph agreed that he is a chiropractor, not a radiologist.
Randolph further agreed that he did not see Ononiwu as a patient and had not seen
any patients as a chiropractor within the last 10 years. The chiropractor who did treat
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Ononiwu saw him twice, once at the beginning of treatment and once at the end of
treatment about two months later.
Randolph conceded that, as the owner of a company that administers MRIs,
he makes money when patients receive them. As part of Randolph’s business,
plaintiffs’ lawyers refer their clients to him and he, in turn, refers them to healthcare
providers. Randolph agreed that his LinkedIn page had stated that he developed
protocols to maximize recoveries in personal-injury cases, but that he had removed
this content from his page because he knew it would be the subject of examination
by defense counsel at trial. In personal-injury cases, Randolph’s compensation
depends on the outcome.
On redirect, Randolph clarified that while the records indicated that the
treating chiropractor saw Ononiwu just twice, the records poorly documented
Ononiwu’s treatment. Randolph opined that the treating chiropractor would have
seen and treated Ononiwu on each visit identified in the records.
Outside the jury’s presence, Ononiwu made an offer of proof as to Randolph’s
excluded testimony. Counsel summarized Randolph’s proposed testimony, noting
that Randolph would have testified that herniated disks are severe, permanent, and
progressive injuries, which would result in future pain, impairment, and medical
care. He would have further testified that the MRI reports reflect this prognosis and
that Ononiwu’s previous symptoms were consistent with the MRIs. Randolph also
9
would have testified that Ononiwu’s injuries and damages were caused by the
accident with Eisenbach.
Eisenbach’s Testimony
Eisenbach agreed that the accident was his fault. He further agreed that his
knowledge was limited to what he saw at the scene.
Eisenbach was driving a 2011 Ford Fusion when he rear-ended Ononiwu, who
was driving a sedan, at a red light. Eisenbach described the accident as “very minor”
in nature, testifying that he “bumped the bumper of Mr. Ononiwu’s car going less
that five miles-an-hour, maybe less than two miles-an-hour.” Afterward, they both
got out of their cars. They then drove to a nearby parking lot to get out of traffic.
They exchanged information, took some pictures, and went on their respective ways.
Directed Verdict Motion
Eisenbach moved for a directed verdict on future damages. Because Ononiwu
testified that he was free of pain before the second automobile accident and the trial
court could not recollect any testimony as to future impairment, the trial court
granted the motion. The trial court also declined to submit the issue of mentalanguish damages due to Ononiwu’s admission to having no emotional distress.
Jury Verdict and Judgment
The trial court’s charge submitted the issues of past medical care, past
physical pain, and past physical impairment to the jury. By a split verdict of 10–2,
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the jury awarded Ononiwu $410.18 for past medical care and nothing for past
physical pain or past physical impairment. The trial court entered judgment
consistent with the jury’s verdict.
Ononiwu appeals.
DISCUSSION
I. Chiropractor’s Excluded Testimony
Ononiwu argues that the trial court abused its discretion by ruling that
Randolph could not testify about the lumbar spine MRI report. Had the trial court
allowed Randolph to do so, Ononiwu argues, the jury would have heard evidence of
damages for future pain and impairment and would have awarded them.
A. Standard of review
We review a trial court’s decision to exclude expert testimony for abuse of
discretion. McMahon v. Zimmerman, 433 S.W.3d 680, 685 (Tex. App.—Houston
[1st Dist.] 2014, no pet.). Under this standard, the trial court has broad discretion,
which it abuses only if its decision is arbitrary, unreasonable, or without reference
to any guiding rules or principles. Id. When a trial court’s exercise of discretion
depends on the resolution of factual disputes or inconsistencies, it does not abuse its
discretion so long as its decision is supported by some evidence. Ashfaq v. Ashfaq,
467 S.W.3d 539, 542 (Tex. App.—Houston [1st Dist.] 2015, no pet.). We cannot
reverse the trial court’s decision simply because we might have ruled differently.
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Wilson v. Shanti, 333 S.W.3d 909, 913 (Tex. App.—Houston [1st Dist.] 2011, pet.
denied). Given its broad discretion, close calls go to the trial court. Id.
B. Applicable law
An expert must be qualified to opine on a given subject for his testimony to
be admissible. TEX. R. EVID. 702; New Hampshire Ins. Co. v. Allison, 414 S.W.3d
266, 273 (Tex. App.—Houston [1st Dist.] 2013, no pet.). The proponent of the
testimony must show the witness has special knowledge on the very issue about
which he proposes to opine. Allison, 414 S.W.3d at 274. Thus, a chiropractor is not
necessarily qualified to opine on any and every medical topic. E.g., Moreno v.
Ingram, 454 S.W.3d 186, 194 (Tex. App.—Dallas 2014, no pet.) (chiropractor not
qualified to opine on non-chiropractic medical expenses).
C. Analysis
A chiropractor may testify about matters on which he has expertise. E.g.,
TREIMee Corp. v. Garcia, No. 01-11-00971-CV, 2013 WL 4680379, at *7–9 (Tex.
App.—Houston [1st Dist.] Aug. 29, 2013, pet. denied) (mem. op.) (affirming trial
court’s decision that chiropractor was qualified to testify about injuries plaintiff
sustained and medical treatment he required after falling through collapsed concrete
landing that was part of apartment complex’s outdoor stairway). The question here
is whether Ononiwu established Randolph’s expertise as to MRIs such that the trial
court abused its discretion by excluding Randolph’s proposed testimony.
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Ononiwu argues that he established Randolph’s expertise through Randolph’s
testimony that he has 17 years of experience with radiology and thus has the
experience or training to read MRIs and testify about MRI reports. See TEX.R. EVID.
702 (experience and training may qualify one as expert in addition to education,
knowledge, and skill). But Randolph also conceded that:
• radiologists, not chiropractors, perform or administer MRIs;
• writing MRI reports is within the expertise of radiologists; and
• he did not have the relevant board certification as to MRIs.
To the extent Ononiwu relies on Randolph’s experience and training with MRIs as
a chiropractor to overcome these concessions, Randolph testified that he has not
practiced or seen patients as a chiropractor for a decade. Nor has he referred a patient
to a radiologist for an MRI within the last 10 years. Finally, Randolph did not treat
Ononiwu and conceded he had not reviewed Ononiwu’s MRI films.
On this record, which required the trial court to assess conflicting evidence as
to Randolph’s qualifications to opine about MRIs, we hold that the trial court did
not abuse its discretion in excluding his testimony about Ononiwu’s lumbar spine
MRI because some evidence supports its decision that Randolph was unqualified.
Cf. Moreno, 454 S.W.3d at 194 (trial court erred in admitting chiropractor’s
testimony about non-chiropractic medical expenses given his concessions that he
could not perform procedures himself and did not make decision to perform them);
Garcia, 2013 WL 4680379, at *2, *8 (affirming trial court’s admission of treating
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chiropractor’s testimony, including testimony that plaintiff’s MRI showed multiple
cervical and lumbar herniations, which was based on chiropractor’s training to
interpret MRIs and experience of having read thousands of them).
II. Past Physical Pain and Impairment
Ononiwu argues the jury’s finding of no damages for past physical pain and
impairment is against the great weight and preponderance of the evidence. He
maintains that the uncontroverted evidence of his injuries, corroborated by medical
expenses, conclusively proves that he suffered pain and impairment in the past.
A. Standard of review
When a party asserts that a jury finding is against the great weight and
preponderance of the evidence, the party is challenging the factual sufficiency of the
evidence. Chang v. Nguyen, 76 S.W.3d 635, 637 n.1 (Tex. App.—Houston [14th
Dist.] 2002, no pet.). When, as here, the party argues the evidence is factually
insufficient to support an adverse jury finding on an issue on which he bore the
burden of proof at trial, like the damages he sought to recover, we can set aside the
finding only if the evidence is so weak or if the finding is so against the great weight
and preponderance of the evidence as to make the finding clearly wrong and unjust.
See Capcor at KirbyMain v. Moody Nat’l Kirby’s Houston S, 509 S.W.3d 379, 384
(Tex. App.—Houston [1st Dist.] 2014, no pet.). We cannot set aside a jury finding
merely because we would have weighed the evidence differently or made a different
14
finding. Hyler v. Boytor, 823 S.W.2d 425, 427 (Tex. App.—Houston [1st Dist.]
1992, no writ). The jury weighs the credibility of the witnesses and resolves
evidentiary conflicts. Huston v. United Parcel Serv., 434 S.W.3d 630, 640 (Tex.
App.—Houston [1st Dist.] 2014, pet. denied).
B. Applicable law
Damages for pain and impairment are inherently speculative. Id. We have
recognized that juries are not necessarily required to award damages such damages
even when an injury is proved or undisputed. See Hyler, 823 S.W.2d at 427.
In general, we distinguish between instances in which a plaintiff’s injuries are
more subjective than objective and vice versa. Id. If the record shows the plaintiff’s
injuries are more subjective in nature, “we must affirm the jury’s assessment of no
damages for pain and suffering.” Id. If, however, the record shows the plaintiff’s
injuries are more objective in nature, an award of zero damages for pain and
impairment cannot stand. E.g., Doctor v. Pardue, 186 S.W.3d 4, 7, 18–21 (Tex.
App.—Houston [1st Dist.] 2005, pet. denied) (reversing award of no damages for
pain and impairment when runway aircraft collision rendered plaintiff quadriplegic).
We also must consider the extent to which the jury could have found based on
the evidence that the plaintiff’s injuries were less severe than claimed or that the
defendant did not cause the plaintiff’s injuries. See Huston, 434 S.W.3d at 641 (jury
has discretion to award no damages when there is conflicting evidence as to cause
15
or severity of injury); Hyler, 823 S.W.2d at 427–28 (affirming award of no damages
for physical pain when evidence of injury was mostly subjective in nature and jury
could have attributed limited objective evidence of injury to other causes).
Moreover, to recover damages for physical impairment in addition to damages
for physical pain, the effect of any physical impairment must be substantial and exist
beyond any physical pain the plaintiff experienced. Doctor, 186 S.W.3d at 18.
C. Analysis
Both Ononiwu and Eisenbach agreed that this was a minor accident.
Eisenbach testified without contradiction that he was traveling around five miles per
hour at most when he rear-ended Ononiwu. Both got out of their cars and after briefly
interacting went on their respective ways. Ononiwu went to the grocery store
afterward and spent the rest of the day watching television.
Ononiwu testified that he first experienced pain two or three days after the
accident. His wrist hurt and pain radiated from his lower back down into his hip.
Ononiwu iced his wrist but did not take any medicine for pain relief.
Ononiwu first sought treatment at a chiropractic clinic the following week. He
then switched to another clinic. There is conflicting evidence as to whether he did
so for convenience or because his lawyer had advised him to do so. For the next
couple of months, Ononiwu went to physical therapy there, received a prescription
for a painkiller from a pain-management doctor, and had epidural shots for pain
16
relief. He also had x-rays and MRIs. It is undisputed that the MRI showed Ononiwu
had herniated disks in his lower back and possibly a bone bruise. But Ononiwu, who
regularly exercises, acknowledged he had never had an MRI before and therefore
did not know how long his disks had been herniated.
Ononiwu testified that the pain from his injuries affected his daily routine but
agreed that he continued exercising and making exercise videos. About two-and-ahalf months after the accident, he discontinued treatment for the pain.
We conclude the evidence of damages in this case is more subjective than
objective in nature. Ononiwu’s x-rays and MRIs are the lone objective evidence of
injury, and they are not conclusive. See Hyler, 823 S.W.2d at 427–28 (CAT scan
objective but not conclusive).
The x-ray report notes a lack of “fractures and/or other serious pathologies”
but states Ononiwu had a lumbar rotation and pelvic shift “consistent with the
patient’s discomfort.” The MRI reports note two disc herniations and certain
findings that “may represent bony contusion.” The principal evidence as to the
significance of these x-ray and MRI findings and their connection with Ononiwu’s
pain is Randolph’s testimony, which the jury was free to credit or not. See Martinez
v. Kwas, 606 S.W.3d 446, 462 (Tex. App.—Houston [1st Dist.] 2020, pet. denied)
(jury can disbelieve experts). In this regard, the jury could have reasonably
discounted Randolph’s testimony based on his admissions that he did not treat
17
Ononiwu, had not treated any other patients in a decade, had developed treatment
protocols designed to maximize a plaintiff’s recovery in lawsuits, and had a financial
interest in the outcome of lawsuits filed by the patients treated at the clinics within
his network of healthcare providers.
The sole other evidence as to Ononiwu’s pain consisted of his testimony and
medical records reflecting what he told treaters. That evidence is subjective. See
Hyler, 823 S.W.2d at 427 (plaintiff’s injuries—dizziness, disorientation, impaired
concentration, memory loss, tiredness, irritability, tingling sensation, and pain in
neck, arms, back, and shoulders—were subjective and turned on her credibility).
Moreover, the jury could have reasonably found that other aspects of
Ononiwu’s testimony undercut his claims about the severity and duration of his pain,
including his characterization of the accident as a minor one, acknowledgment that
he did not experience any pain until two or three days after the accident, and
concession that he carried on with his ordinary daily life activities, including
exercise, notwithstanding the pain. When, as here, the plaintiff’s credibility is central
to his claims of physical pain, the jury’s role is paramount. See Diamond Offshore
Servs. Ltd. v. Williams, 542 S.W.3d 539, 552 (Tex. 2018). In its role as the sole judge
of credibility, the jury was entitled to discount Ononiwu’s testimony about his
physical pain and the jury implicitly did so. See id.; see also Schott v. Knight, No.
01-06-00727-CV, 2007 4465586, at *3 (Tex. App.—Houston [1st Dist.] Dec. 20,
18
2007, no pet.) (mem. op.) (jury may disbelieve plaintiff’s subjective complaints of
pain, including those made to and relied on by his treating physician, even when
plaintiff’s testimony is uncontradicted).
On its face, the evidence does not suggest the kind of substantial effect beyond
ordinary pain and suffering that is required to recover damages for physical
impairment. See Doctor, 186 S.W.3d at 18. The sole evidence in this regard is
Ononiwu’s testimony that he had to modify his workouts to account for the pain.
Ononiwu argues that his medical bills for more than $25,000 show his injuries
were serious enough to entail pain and impairment. On this record, we disagree.
Ononiwu’s medical bills, accompanied by affidavits of cost and necessity, are
sufficient to establish the amounts billed by healthcare providers for Ononiwu’s
treatment, given that the affidavits were uncontroverted. TEX. CIV. PRAC. & REM.
CODE § 18.001(b), (e). But the affidavits are not evidence that Eisenbach caused
these damages. Id. § 18.001(b). Eisenbach disputed causation, which Ononiwu had
to prove. See Imamovic v. Milstead, No. 01-13-01030-CV, 2015 WL 505383, at *6
(Tex. App.—Houston [1st Dist.] Feb. 5, 2015, no pet.) (mem. op.) (even when
defendant’s liability for auto collision is established, plaintiff must prove causal
nexus between collision and injuries to show damages). The jury could have
reasonably resolved this dispute in Eisenbach’s favor in light of the undisputed
evidence that the collision waslow-impact, Ononiwu experienced no pain for several
19
days, and Ononiwu sought treatment for the first time even later. See Hyler, 823
S.W.2d at 425–26 (affirming award of no damages for pain when plaintiff had no
visible sign of injury after accident, drove to friend’s house afterward, went to work
next day, and did not see doctor for several days); Vasquez v. Hildenbrand, No. 01-
06-01067-CV, 2008 WL 1827642, at *5 (Tex. App.—Houston [1st Dist.] Apr. 24,
2008, no pet.) (mem. op.) (affirming award of no damages for pain based on
evidence of minor nature of accident and plaintiff’s condition at accident scene and
at home afterward); see also Gutierrez v. Martinez, No. 01-07-00363-CV, 2008 WL
5392023, at *6 (Tex. App.—Houston [1st Dist.] Dec. 19, 2008, no pet.) (mem. op.)
(jury may disbelieve plaintiff as to cause of pain when his testimony is sole direct
evidence of causation).
Nor does a jury’s award of past medical expenses, particularly the modest
amount the jury awarded to Ononiwu, require an award of damages for physical pain
or impairment. Davis v. Vaughters, No. 01-17-00612-CV, 2018 WL 5661317, at *6
(Tex. App.—Houston [1st Dist.] Nov. 1, 2018, no pet.) (mem. op.). A jury may
reasonably find that a plaintiff should be compensated for seeking enough medical
care to confirm that he has not been seriously injured, but that he did not suffer pain
or impairment warranting damages. See id. at *9 (holding so as to physical pain).
Given the largely subjective nature of the evidence and the evidentiary
conflicts as to the existence, severity, and cause of the injuries in this case arising
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from a low-speed collision without contemporaneous indicia of injury, the jury’s
findings of no damages for past physical pain and impairment should not be
overturned. See Hyler, 823 S.W.2d at 428. We hold that the evidence is neither so
weak nor these findings so against the great weight and preponderance of the
evidence as to make them clearly wrong or unjust. See Capcor, 509 S.W.3d at 384.

Outcome: We affirm the trial court’s judgment.

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