Ononiwu v. Eisenbach

624 S.W.3d 37

Chidi ONONIWU, Appellant

v.Theodore EISENBACH, Appellee

NO. 01-20-00131-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued March 30, 2021

Anthony L. Bannwart, Jerry W. Mason, John C. Mitchell (Of Counsel), BANNWART & ASSOCIATES, P.C., 7324 Southwest Freeway, Ste. 830, Houston, Texas 77074, for Appellant.

Michael Cancienne, Caroline Carter, JORDAN LYNCH & CANCIENNE PLLC, 1980 Post Oak Blvd., Ste. 2300, Houston, Texas 77056, for Appellee.

Panel consists of Chief Justice Radack and Justices Goodman and Farris.

Gordon Goodman, Justice

This appeal concerns a personal injury suit arising out of a car accident. Chidi Ononiwu sued Theodore Eisenbach and obtained a jury verdict awarding him $410.18 in medical expenses. But Ononiwu appeals contending the verdict should have been better. In two points of error, Ononiwu contends that:

(1) the trial court abused its discretion by ruling that his expert, a chiropractor, was unqualified to testify about a lumbar spine MRI report; and

(2) the jury's award of zero damages for past physical pain and impairment is against the great weight and preponderance of the evidence.

We affirm.

BACKGROUND

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 rear-ended 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.

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 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 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, 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 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 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...