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Clayton v. Wisener, 190 S.W.3d 685 (2005)

190 S.W.3d 685


Court of Appeals of Texas, [1]
Appeal and Error
Tyler. Verdict
Appeal and Error
Tom CLAYTON, M.D., a/k/a Charles T. Clayton, Total Failure of Proof
M.D., a/k/a Thomas M. Clayton, Appellant
v. In reviewing a legal sufficiency or no evidence
Susan WISENER, Appellee. complaint, the appellate court must consider
only the evidence and inferences tending to
No. 12–03–00251–CV. support the challenged findings and disregard all
| evidence and inferences to the contrary, and if
June 15, 2005. there is more than a scintilla of evidence to
| support the challenged findings, the no evidence
Rehearing Overruled Sept. 23, 2005. challenge fails.

Cases that cite this headnote


Synopsis
Background: Employee, who worked for medical billing
company and who was assigned to account of doctor who
had contracted with company to perform his billing,
brought action for intentional infliction of emotional [2]
Appeal and Error
distress and invasion of privacy against doctor, alleging Total Failure of Proof
that doctor asked employee inappropriate questions about
her sex life and that doctor misread the results of Appellate court may sustain a “no evidence”
employee’s gallbladder scan as normal. The 145th point only when the record discloses one of the
Judicial District Court, Nacogdoches County, Campbell following: (1) there is a complete absence of
Cox, II, J., entered judgment for employee, and doctor evidence of a vital fact; (2) the court is barred by
appealed. rules of law or evidence from giving weight to
the only evidence offered to prove a vital fact;
(3) the evidence offered to prove a vital fact is
Holdings: The Court of Appeals, Diane DeVasto, J., held no more than a mere scintilla of evidence; or (4)
that: the evidence establishes conclusively the
opposite of a vital fact.
[1]
evidence was legally and factually sufficient to support
jury’s finding that doctor’s conduct toward employee was 2 Cases that cite this headnote
extreme and outrageous so as to give rise to liability for
intentional infliction of emotional distress; and
[2]
evidence was not legally sufficient to support jury’s
finding that doctor invaded privacy of employee. [3]
Appeal and Error
Conclusiveness in General
Affirmed in part; reversed in part and rendered. It is not within appellate court’s province to
second guess the fact finder unless only one
inference can be drawn from the evidence.

West Headnotes (37) Cases that cite this headnote


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Clayton v. Wisener, 190 S.W.3d 685 (2005)

pass on the credibility of the witnesses or


substitute its judgment for that of the trier of
fact, even if a different conclusion could be
reached on the evidence.
[4]
Appeal and Error
Sufficiency of Evidence in Support
Cases that cite this headnote
If the evidence furnishes some reasonable basis
for differing conclusions by reasonable minds
about a vital fact’s existence, more than a
scintilla of evidence exists.
[8]
Appeal and Error
Sufficiency of Evidence in Support
1 Cases that cite this headnote
When a party without the burden of proof on an
issue challenges the factual sufficiency of the
evidence, the question is whether insufficient
evidence supports the complained-of finding.
[5]
Appeal and Error
Extent of Review
2 Cases that cite this headnote
When conducting a factual sufficiency review,
appellate court must consider all of the
evidence, including any evidence contrary to the
verdict.
[9]
Appeal and Error
Sufficiency of Evidence in Support
Cases that cite this headnote
An assertion that the evidence is “insufficient”
to support a fact finding means that the evidence
supporting the finding is so weak or the
evidence to the contrary is so overwhelming that
[6]
Appeal and Error the finding should be set aside and a new trial
Manifest Weight of Evidence ordered.

Appellate court must reverse on the basis of


factual insufficiency if the trial court’s finding is 3 Cases that cite this headnote
so against the great weight and preponderance as
to be manifestly unjust.

[10]
1 Cases that cite this headnote Damages
Elements in General

To recover damages for intentional infliction of


emotional distress, a plaintiff must establish that
[7]
Appeal and Error (1) the defendant acted intentionally or
Credibility of Witnesses recklessly, (2) the defendant’s conduct was
Appeal and Error extreme and outrageous, (3) the defendant’s
Conclusiveness in General actions caused the plaintiff emotional distress,
and (4) the resulting emotional distress was
Appellate court is not a fact finder and may not

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Clayton v. Wisener, 190 S.W.3d 685 (2005)

severe.
The test for determining what conduct is
extreme and outrageous, for purposes of
2 Cases that cite this headnote intentional infliction of emotional distress claim,
is essentially a subjective one.

Cases that cite this headnote


[11]
Damages
Sex and Gender
Damages
Other Particular Cases
[14]
Damages
Evidence was legally and factually sufficient to Nature of Conduct
support jury’s finding that doctor’s conduct
toward employee of company, which doctor A course of harassing conduct may support
used for his medical billing, was extreme and liability for intentional infliction of emotional
outrageous so as to give rise to liability for distress, and when ongoing harassment is
intentional infliction of emotional distress; alleged, the offensive conduct is evaluated as a
during business calls, doctor asked employee whole.
personal questions about her sex life, doctor
misread employee’s scan by stating that
employee’s gallbladder was normal when her Cases that cite this headnote
gallbladder was abnormal, doctor’s actions were
done knowingly and intentionally, and employee
testified that she suffered anxiety, depression,
and marital and familial discord as a result of [15]
doctor’s constant harassment. Damages
Mental Suffering and Emotional Distress

1 Cases that cite this headnote It is for the court to determine, in the first
instance, whether a defendant’s conduct is
extreme and outrageous for purposes of
intentional infliction of emotional distress claim;
however, when reasonable minds may differ, it
[12]
Damages is for the jury, subject to the court’s control, to
Humiliation, Insults, and Indignities determine whether, in the particular case, the
conduct is sufficiently extreme and outrageous
Liability for intentional infliction of emotional to result in liability.
distress does not extend to a defendant who
conducts himself toward others with mere
insults, indignities, threats, annoyances, or other Cases that cite this headnote
trivialities.

Cases that cite this headnote


[16]
Damages
Nature of Conduct

The threshold for what constitutes extreme and


[13]
Damages outrageous conduct sufficient to give rise to the
Nature of Conduct tort of intentional infliction of emotional distress
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Clayton v. Wisener, 190 S.W.3d 685 (2005)

is a difficult one to meet.


[20]
Damages
Nature of Conduct
Cases that cite this headnote
Intent, for purposes of claim for intentional
infliction of emotional distress, may be inferred
from the circumstances and the conduct of the
[17]
actor, not just from the overt expressions of
Damages intent by the actor.
Nature of Conduct

Intentional infliction of emotional distress Cases that cite this headnote


requires either that the actor intend to cause
severe emotional distress or that severe
emotional distress is the primary risk created by
the actor’s reckless conduct.
[21]
Damages
Mental Suffering and Emotional Distress
1 Cases that cite this headnote
Juries are free to discredit the defendant’s
protestations that no harm was intended and to
draw necessary inferences to establish intent in
[18]
action for intentional infliction of emotional
Damages distress.
Nature of Conduct

“Intentional” conduct, for purposes of claim for Cases that cite this headnote
intentional infliction of emotional distress,
requires a showing that the actor desired the
consequences of his act.
[22]
Damages
Cases that cite this headnote Nature of Injury or Threat

“Severe emotional distress,” for purposes of


claim for intentional infliction of emotional
[19]
distress, is distress that is so severe that no
Damages reasonable person could be expected to endure
Nature of Conduct it.
An actor is “reckless,” for purposes of claim for
intentional infliction of emotional distress, when 1 Cases that cite this headnote
he knows or has reason to know of facts that
create a high degree of risk of harm to another
and deliberately proceeds to act in conscious
disregard of, or indifference to, that risk.
[23]
Evidence
Due Care and Proper Conduct
Cases that cite this headnote Torts
Intrusion

Evidence was not legally sufficient to support


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Clayton v. Wisener, 190 S.W.3d 685 (2005)

jury’s finding that doctor invaded privacy of


employee of company, which doctor used for his
medical billing; employee did not allege, nor did
the evidence show, that doctor physically
[26]
invaded employee’s property or eavesdropped Damages
on one of her conversations, there was no Mental Suffering and Emotional Distress
evidence that doctor intentionally misread
employee’s scan by stating that employee’s To recover mental anguish damages, the
gallbladder was normal when her gallbladder plaintiff must introduce direct evidence of the
was abnormal, medical experts testified that nature, duration, and severity of the mental
results of scan were open to subjective anguish, thus establishing a substantial
interpretation, and if anything, evidence disruption in the plaintiff’s daily routine, and
demonstrated that doctor was only negligent direct evidence may be in the form of the
when he read scan. plaintiff’s own testimony, that of a third party,
or that of an expert.

1 Cases that cite this headnote


2 Cases that cite this headnote

[24]
Torts
[27]
Intrusion Damages
Mental Suffering and Emotional Distress
The elements of a cause of action for invasion of
privacy by intrusion on seclusion are (1) the Evidence was legally and factually sufficient to
defendant intentionally intruded on the support the jury’s award of damages for past
plaintiff’s solitude, seclusion, or private affairs, mental anguish to employee who suffered severe
(2) the intrusion would be highly offensive to a emotional distress as result of constant
reasonable person, and (3) the plaintiff suffered harassment by doctor, who was client of medical
injury as a result of the defendant’s intrusion. billing company for which employee worked;
the evidence of mental anguish was
uncontroverted.
13 Cases that cite this headnote

1 Cases that cite this headnote

[25]
Torts
Intrusion
[28]
Torts Damages
Particular Cases in General Impairment of Earning Capacity

The invasion-of-privacy tort is typically “Lost earning capacity” concerns the


associated with either a physical invasion of a impairment to one’s ability to work, and it
person’s property or eavesdropping on another’s entails the consideration of what the plaintiff’s
conversation with the aid of wiretaps, capacity to earn a livelihood actually was and
microphones, or spying. assesses the extent to which it was impaired.

10 Cases that cite this headnote 1 Cases that cite this headnote

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Karel, Tamara 10/3/2016
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Clayton v. Wisener, 190 S.W.3d 685 (2005)

loss of earning capacity was based on conjecture


and could not stand in action brought against
doctor by employee, who alleged that she
suffered severe emotional distress as result of
[29]
Damages doctor’s constantly asking employee personal
Loss of Earnings, Services, or Consortium questions, such as questions about her sex life.
and Impairment of Earning Capacity

Calculating the extent of impairment to one’s Cases that cite this headnote
ability to work, for purposes of determining lost
earning capacity, constitutes an exercise in
uncertainty, and thus, much is left to the sound
discretion of the jury; however, this does not
[32]
mean that jury may simply journey into the Damages
realm of conjecture, and quite the contrary, its Impairment of Earning Capacity
decision must be based upon such facts as are
available in the particular case. The non-exclusive factors to be considered
when determining lost earning capacity include
the earnings of the injured party before and after
2 Cases that cite this headnote the incident, her stamina and ability to work
with pain and the weakness and degenerative
changes that naturally result from the injury and
from long-suffered pain, and the potential of the
injured party, or her ability to advance in skill,
[30]
Damages job, and pay.
Weight and Sufficiency
Damages
Impairment of Earning Capacity 1 Cases that cite this headnote

Damages must be proved with that degree of


certainty of which the case is susceptible, and
where the plaintiff seeks special damages for
[33]
loss of his earning capacity in a particular Damages
business or profession, the amount of his Punitive Damages
earnings or the value of his services in that
business must be shown with reasonable Although doctor’s harassing conduct toward
certainty. employee, who worked for medical billing
company of which doctor was a client, was
extreme and outrageous, there was no clear and
Cases that cite this headnote convincing evidence in the record to support a
finding that doctor had an actual awareness that
his conduct exposed employee to an extreme
risk of substantial harm and proceeded with
conscious indifference to her rights, and because
[31]
Damages the record was devoid of clear and convincing
Particular Cases evidence of malice, exemplary damages were
not warranted. V.T.C.A., Civil Practice &
Since the record contained no evidence of Remedies Code § 41.003.
employee’s earnings at the time she worked for
medical billing company, of which doctor was a
client, or the value of employee’s services, the 3 Cases that cite this headnote
jury’s award of $72,488.00 to employee for past
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Clayton v. Wisener, 190 S.W.3d 685 (2005)

Admitted

The general rule is that error in the admission of


evidence is deemed harmless and is waived if
[34]
Damages the objecting party subsequently permits the
Grounds for Exemplary Damages same or similar evidence to be introduced
without objection.
The definition of “malice,” for purposes of
exemplary damages award, incorporates the
objective and subjective elements of the malice 1 Cases that cite this headnote
standard: (1) viewed objectively from standpoint
of the actor, the act or omission must involve an
extreme degree of risk, considering the
probability and magnitude of the potential harm
[37]
to others; and (2) the actor must have actual, Damages
subjective awareness of the risk involved, but Reparation by Wrongdoer
nevertheless proceed in conscious indifference
to the rights, safety, or welfare of others, and Since doctor did not file written election as to
“actual awareness” means that the defendant which dollar credit should have been applied, he
knew about the peril, but its acts or omissions was considered to have elected a credit under
demonstrated that it did not care. V.T.C.A., statute allowing credit of 5% of damages up to
Civil Practice & Remedies Code § 41.003. $200,000, and as such, trial court properly
applied $1,000 toward the judgment as a
settlement credit and awarded employee
1 Cases that cite this headnote $19,000 for mental anguish in action brought
against doctor by employee, who alleged that
she suffered severe emotional distress as result
of doctor’s harassment of employee, who
worked for medical billing company of which
[35]
Appeal and Error doctor was a client; employee was awarded
Repetition of Objections $20,000 for mental anguish, and 5% of $20,000
was $1,000. V.T.C.A., Civil Practice &
Doctor waived, for purposes of appeal, his claim Remedies Code §§ 33.012(b), 33.014.
that trial court erroneously admitted evidence of
doctor’s prior sexual advances and comments
toward other women in intentional infliction of Cases that cite this headnote
emotional distress action brought by employee,
who worked for medical billing company of
which doctor was a client, given that doctor
objected to some of the evidence regarding his
prior conduct, but did not object when that same
testimony was elicited later during the Attorneys and Law Firms
witnesses’ examination.
*690 Stephen P. Carrigan, Carrigan Law Firm, LLP, Jill
L. Groff, Houston, for appellant.
Cases that cite this headnote
Timothy B. Garrigan, Stuckey & Garrigan, for appellee.

Panel consisted of WORTHEN, C.J., GRIFFITH, J., and


DeVASTO, J.
[36]
Appeal and Error
Same or Similar Evidence Otherwise
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Clayton v. Wisener, 190 S.W.3d 685 (2005)

OPINION 19, 2000 and included an allegation that Dr. Clayton’s


actions constituted intentional infliction of emotional
distress. She continued to seek actual and exemplary
DIANE DeVASTO, Justice. damages.
In six issues, Appellant Tom Clayton, M.D. challenges Wisener’s case went to trial on March 24, 2003. At the
the trial court’s entry of a judgment awarding $91,488.00 conclusion of the trial, the jury returned a verdict in favor
in actual damages and $200,000.00 in exemplary damages of Wisener, finding that Dr. Clayton intentionally
to Appellee Susan Wisener. We affirm in part and reverse inflicted emotional distress on Wisener and intentionally
and render in part. intruded on her private affairs. The jury awarded Wisener
$20,000.00 for past mental anguish and $72,488.00 for
past lost earning capacity. The jury also found that the
harm to Wisener resulted from malice and awarded her
BACKGROUND $500,000.00 in exemplary damages.2

In 1995, Wisener went to work for Medaphis Physicians On May 30, 2003, Dr. Clayton filed motions for new trial,
Services Corporation, a medical billing service company, judgment notwithstanding the verdict, and to modify the
as an account representative. Dr. Clayton contracted with judgment, all of which were denied on July 8. He timely
Medaphis to perform his billing and collections for his perfected this appeal.
radiology practice, and Wisener was assigned to his
account. According to Wisener, in November of 1995, Dr.
Clayton began calling her, making offensive comments,
as well as propositions of a sexual nature, and asking
LEGAL AND FACTUAL SUFFICIENCY
inappropriate questions about her sex life with her
husband. In his first issue,3 Dr. Clayton contends that the evidence
was legally and factually insufficient to support the jury’s
In April of 1996, Wisener became ill and was admitted to findings of liability on Wisener’s intentional infliction of
Nacogdoches Medical Center for diagnostic testing. emotional distress and invasion of privacy claims. He also
During her stay in the hospital, Wisener underwent a contends that the evidence was insufficient to support the
HIDA scan to determine if she had problems with her jury’s award of damages for mental anguish and past lost
gallbladder. Dr. Clayton read the results of her HIDA earning capacity. In his second issue, Dr. Clayton
scan and reported that the scan was normal. Wisener contends that each of the jury’s findings are immaterial
continued to suffer from abdominal pain and sought a and should be disregarded because the evidence to
second opinion. Her treating physicians concluded that support each finding is legally and factually insufficient.
her gallbladder was abnormal and removed the Dr. Clayton makes the same arguments in issues one and
gallbladder. two; therefore, we will consider them as one issue.
On July 1, 1998, Wisener sued Dr. Clayton, alleging his
conduct invaded her privacy.1 Specifically, Wisener
alleged that Dr. *691 Clayton, among other things, 1) Standard of Review
asked her about her sex life with her husband, 2) asked if [1] [2] [3] [4]
In reviewing a legal sufficiency or no evidence
she “ran around on [her] husband,” 3) told her to show complaint, the appellate court must consider only the
him different private parts of her body, 4) told her to evidence and inferences tending to support the challenged
perform various sex acts on him, 5) told her he wanted to findings and disregard all evidence and inferences to the
touch different parts of her body, and 6) propositioned her contrary. If there is more than a scintilla of evidence to
for sex. Wisener sought actual and exemplary damages support the challenged findings, the no evidence
from Dr. Clayton for his actions. challenge fails. Leitch v. Hornsby, 935 S.W.2d 114, 118
(Tex.1996). We may sustain a “no evidence” point only
On July 21, Dr. Clayton answered Wisener’s suit with a when the record discloses one of the following: (1) there
general denial. Wisener amended her petition on January is a complete absence of evidence of a vital fact, (2) the

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Clayton v. Wisener, 190 S.W.3d 685 (2005)

court is barred by rules of law or evidence from giving distress, and 4) the resulting emotional distress was
weight to the only evidence offered to prove a vital fact, severe. Hoffmann–La Roche Inc. v. Zeltwanger, 144
(3) the evidence offered to prove a vital fact is no more S.W.3d 438, 445 (Tex.2004).
than a mere scintilla of evidence, or (4) the evidence
establishes conclusively the opposite of a vital fact. See
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706,
711 (Tex.1997). It is not within our province to second A. Extreme and Outrageous Conduct
[12] [13]
guess the fact finder unless only one inference can be Dr. Clayton argues that the evidence was legally
drawn from the evidence. See Havner *692 v. E–Z Mart and factually insufficient to support a finding that his
Stores, Inc., 825 S.W.2d 456, 461 (Tex.1992). If the conduct was extreme and outrageous. Extreme and
evidence furnishes some reasonable basis for differing outrageous conduct has been defined as conduct “so
conclusions by reasonable minds about a vital fact’s outrageous in character, and so extreme in degree, as to
existence, more than a scintilla of evidence exists. go beyond all possible bounds of decency, and to be
Burroughs Wellcome v. Crye, 907 S.W.2d 497, 499 regarded as atrocious, and utterly intolerable in a civilized
(Tex.1995); Kindred v. Con/Chem, Inc., 650 S.W.2d 61, community.” Twyman v. Twyman, 855 S.W.2d 619, 621
63 (Tex.1983). (Tex.1993). “Generally, liability for intentional infliction
of emotional distress has only been found in those cases
[5] [6] [7] [8] [9]
When conducting a factual sufficiency in which a recitation of the facts to an average member of
review, we must consider all of the evidence, including the community would lead him to exclaim, ‘Outrageous’
any evidence contrary to the verdict. Plas–Tex., Inc. v. ” See Foye v. Montes, 9 S.W.3d 436, 440 (Tex.App.-
U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). Houston [14th Dist.] 1999, pet. denied). Liability does not
Furthermore, we must reverse on the basis of factual extend to a defendant who conducts himself toward others
insufficiency if the court’s finding is so against the great with mere insults, indignities, threats, annoyances, or
weight and preponderance as to be manifestly unjust. other trivialities. GTE Southwest v. Bruce, 998 S.W.2d
Pool v. Ford Motor Co., 715 S.W.2d 629, 635 605, 612 (Tex.1999). The test for determining what
(Tex.1986). This court is not a fact finder and may not conduct is extreme and outrageous is essentially a
pass on the credibility of the witnesses or substitute its subjective one. Haynes & Boone, L.L.P. v. Chason, 81
judgment for that of the trier of fact, even if a different S.W.3d 307, 309 (Tex.App.-Tyler 2002, pet. denied)
conclusion could be reached on the evidence. See Herbert (citing Twyman, 855 S.W.2d at 629 (Hecht, J., concurring
v. Herbert, 754 S.W.2d 141, 144 (Tex.1988); Clancy v. and dissenting)).
Zale Corp., 705 S.W.2d 820, 826 (Tex.App.-Dallas 1986,
[14] [15]
writ ref’d n.r.e.). When a party without the burden of It is well recognized that a course of harassing
proof on an issue challenges the factual sufficiency of the conduct may support liability for intentional infliction of
evidence, the question is whether insufficient evidence emotional distress. Bruce, 998 S.W.2d at 615. When
supports the complained-of finding. Gooch v. Am. Sling ongoing harassment is alleged, the *693 offensive
Co., 902 S.W.2d 181, 184 (Tex.App.-Fort Worth 1995, no conduct is evaluated as a whole. Id. It is for the court to
writ). An assertion that the evidence is “insufficient” to determine, in the first instance, whether a defendant’s
support a fact finding means that the evidence supporting conduct was extreme and outrageous. Zeltwanger, 144
the finding is so weak or the evidence to the contrary is so S.W.3d at 445 (citing Bruce, 998 S.W.2d at 616). But
overwhelming that the finding should be set aside and a when reasonable minds may differ, it is for the jury,
new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 subject to the court’s control, to determine whether, in the
(Tex.1965). particular case, the conduct was sufficiently extreme and
outrageous to result in liability. Id.
[16]
The cases discussing whether conduct is extreme and
I. Intentional Infliction of Emotional Distress outrageous are as varied as the spectrum of facts that
[10] [11]
To recover damages for intentional infliction of could conceivably constitute the tort of intentional
emotional distress, a plaintiff must establish that 1) the infliction of emotional distress. Courts deciding these
defendant acted intentionally or recklessly, 2) the cases have had great difficulty in analyzing whether a set
defendant’s conduct was extreme and outrageous, 3) the of facts rises to the level of extreme and outrageous
defendant’s actions caused the plaintiff emotional conduct, as evidenced by the Texas Supreme Court’s
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Clayton v. Wisener, 190 S.W.3d 685 (2005)

recent statement that “[f]or the tenth time in little more stating that her gallbladder was normal when her
than six years, we must reverse an intentional infliction of gallbladder was abnormal.
emotional distress claim for failing to meet the exacting
requirements of that tort.” See Creditwatch, Inc. v. Our opinion in Chason is helpful to determine whether
Jackson, 157 S.W.3d 814, 815 (Tex.2005). The threshold this complained-of conduct was extreme and outrageous.
for what constitutes extreme and outrageous conduct In that case, Lisa Chason obtained a jury verdict awarding
sufficient to give rise to the tort of intentional infliction of her damages for intentional infliction of emotional
emotional distress is therefore a difficult one to meet. distress from Haynes & Boone, L.L.P. The award arose
Chason, 81 S.W.3d at 311. from the publication of topless and other embarrassing
photos of her by an attorney for Haynes & Boone, L.L.P.
The record, viewed in the light most favorable to during and immediately after an administrative hearing
Wisener, reveals that from November or December of *694 held in a matter between her husband and the City
1995 to May of 1996, Wisener talked to Dr. Clayton three of Palestine. Chason, 81 S.W.3d at 310. Chason also
or four times a week. Wisener contends that the following complained that during the second day of the hearing, the
conduct by Dr. Clayton supports the jury’s finding that he attorney told a local newspaper reporter that “she had
intentionally inflicted emotional distress upon her during some photographs she would like to sell him.” Id.
that time period:
In Chason, this court analyzed the holdings of other
1. Around the first of December 1995, during business courts deciding whether conduct was extreme and
calls at work, Dr. Clayton began asking Wisener personal outrageous. Id. at 311–13. The cases in which the
questions such as her age, whether she was married, reviewing court upheld a finding of extreme and
whether she had any children, what her husband did for a outrageous conduct or found that summary judgment
living, and how much money he made. She thought these evidence created a fact issue on extreme and outrageous
matters were “none of his business.” conduct dealt with unwanted sexual advances or
suggestions over a period of time as well as conduct
2. Toward the end of 1995, Dr. Clayton asked her about occurring within a short time period. See Morgan v.
her sex life at home and if her husband was happy with Anthony, 27 S.W.3d 928, 931 (Tex.2000) (defendant’s
their sex life. He wanted to know how often she had sex sexually suggestive comments while attempting to offer
with her husband and wanted to know her breast size. He assistance to plaintiff whose car had died and continued
also wanted to know if she had affairs with other men. pursuit of her after she declined such assistance created a
When talking about sex, Dr. Clayton used the term “f* fact issue, thus necessitating reversal of summary
*k” and also discussed “blow jobs.” He told her he judgment in favor of defendant); Bruce, 998 S.W.2d at
wanted to “f* *k” at least ten times over a one month 612–13 (supervisor engaged in ongoing acts of
period. harassment, intimidation, humiliation, daily use of
vulgarities, and obscene behavior); Fields v. Teamsters
3. In December 1995 or January of 1996, Dr. Clayton told Local Union No. 988, 23 S.W.3d 517, 531–33 (Tex.App.-
her that he “wanted to go to a motel room and f* *k” and Houston [1st Dist.] 2000, pet. denied) (employer
that he “wanted her ass.” threatened to fire employee if she did not succumb to his
sexual advances; the conduct took place over a three-
4. Dr. Clayton told Wisener that her breasts were big. month period); Gonzales v. Willis, 995 S.W.2d 729, 736
(Tex.App.-San Antonio 1999, no pet.) (defendant
5. During Wisener’s hospital stay, Dr. Clayton told her to repeatedly initiated sexually explicit conversations and
get her “ass out of bed and go collect his money.” He also made sexual advances in spite of plaintiff’s protests,
asked her to take her shirt off. suggested he could help her get a job in return for sexual
favors, and encouraged co-workers to make indecent
6. In late April or early May of 1996, after her surgery, propositions to her).
Dr. Clayton still wanted to know if she wanted to have
sex with him and if “they hurt [her] breasts during the After discussing these cases, we observed that Chason
surgery.” complained of two isolated incidents, not a prolonged
series of acts. Chason, 81 S.W.3d at 314. In holding that
7. Dr. Clayton intentionally misread her HIDA scan by the conduct in Chason was not the sort of “flagrant or
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heinous facts” described in cases finding extreme and deliberately proceeds to act in conscious disregard of, or
outrageous conduct, we noted that the attorney did not 1) indifference to, that risk. Twyman, 855 S.W.2d at 624.
make any indecent propositions to Chason, 2) engage in Intent may be inferred from the circumstances and the
vulgar or obscene behavior, or 3) attempt to deceive conduct of the actor, not just from the overt expressions
Chason in order to further a personal interest. Id. at 313– of intent by the actor. Toles v. Toles, 45 S.W.3d 252, 260
14. (Tex.App.-Dallas 2001, pet. denied). Of course, rarely
will a defendant admit knowing of a substantial certainty
In the instant case, Dr. Clayton 1) made indecent that emotional harm would befall the victim. Twyman,
propositions to Wisener, 2) engaged in vulgar or obscene 855 S.W.2d at 623. Juries are free to discredit the
behavior, and 3) attempted to deceive Wisener by asking defendant’s protestations that no harm was intended and
her to take her shirt off after telling her that he needed to to draw necessary inferences to establish intent. Id.
discuss the results of her test with her. The only evidence
to the contrary is Dr. Clayton’s testimony denying any of Dr. Clayton’s outrageous statements and actions indicate
the actions described by Wisener. After reviewing the that they were done knowingly and intentionally.
record, we hold that Dr. Clayton’s continuous course of Furthermore, Wisener testified that she repeatedly asked
conduct was “so outrageous in character, and so extreme Dr. Clayton to leave her alone, but he persisted in this
in degree, as to go beyond all possible bounds of decency, course of conduct. See Morgan, 27 S.W.3d at 931. The
and to be regarded as atrocious, and utterly intolerable in only evidence against this finding is Dr. Clayton’s
a civilized community”; therefore, the jury was within its testimony that he did not engage in any of the conduct
province to judge his conduct. See Twyman, 855 S.W.2d described by Wisener. After reviewing the evidence, we
at 621; Zeltwanger, 144 S.W.3d at 445. Under the facts of conclude that evidence of his intent and/or recklessness
this case, we hold that the above evidence constitutes amounted to more than a scintilla and that the jury’s
more than a scintilla of evidence to support the finding finding was not so weak or the evidence contrary to the
that Dr. Clayton’s conduct was extreme and outrageous. finding so overwhelming that the finding should be set
After reviewing all of the evidence, we also hold that the aside and a new trial ordered. Dr. Clayton’s first issue, as
finding that Dr. Clayton’s conduct was extreme and it pertains to the legal and factual sufficiency of the
outrageous was not so weak or the evidence contrary to evidence of his intent, is overruled.
the finding so overwhelming that the finding should be set
aside and a new trial ordered. Dr. Clayton’s first issue, as
it pertains to the legal and factual sufficiency of the
evidence of his extreme and outrageous conduct, is C. Severe Emotional Distress
overruled. Dr. Clayton next contends that he did not cause Wisener
to suffer any severe emotional distress. He argues that her
mental problems were ordinary and that her previous
relationships were the cause of those mental problems.
B. Intent Wisener contends that the evidence supporting the jury’s
*695 [17] [18] [19] [20] [21] Dr. Clayton also argues that the verdict was legally and factually sufficient.
evidence of his intent or recklessness was legally and
[22]
factually insufficient to support the verdict. Intentional In Bruce, the Texas Supreme Court discussed severe
infliction of emotional distress requires either that the emotional distress and noted that “[e]motional distress
actor intend to cause severe emotional distress or that includes all highly unpleasant mental reactions such as
severe emotional distress is the primary risk created by embarrassment, fright, horror, grief, shame, humiliation,
the actor’s reckless conduct. Standard Fruit & Vegetable and worry.” Bruce, 998 S.W.2d at 618. Severe emotional
Co. v. Johnson, 985 S.W.2d 62, 63 (Tex.1998). distress is distress that is so severe that no reasonable
Intentional conduct requires a showing that the actor person could be expected to endure it. Id. In finding the
desired the consequences of his act. Behringer v. evidence in support of severe emotional distress legally
Behringer, 884 S.W.2d 839, 842 (Tex.App.-Fort Worth sufficient, the supreme court noted that the plaintiffs in
1994, writ denied); LaCoure v. LaCoure, 820 S.W.2d Bruce
228, 233 (Tex.App.-El Paso 1991, writ denied). An actor
is reckless when he knows or has reason to know of facts experienced a variety of emotional
that create a high degree of risk of harm to another and problems including crying spells,
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emotional outbursts, nausea, contrary to the finding so overwhelming that the finding
stomach disorders, headaches, should be set aside and a new trial ordered. Dr. Clayton’s
difficulty in sleeping and eating, first issue, as it pertains to the legal and factual
stress, anxiety, and depression. The sufficiency of the evidence of Wisener’s severe emotional
employees testified that they distress, is overruled.
experienced anxiety and fear
because of [the defendant’s]
continuing harassment, especially
his charges and rages. Each II. Invasion of Privacy
[23]
employee sought medical treatment Dr. Clayton next argues that the evidence was legally
for these problems, and all three and factually insufficient to support a finding that he
plaintiffs were prescribed invaded Wisener’s privacy. Wisener contends that the
medication to alleviate the evidence supports such a finding because of Dr. Clayton’s
problems. An expert witness sexual harassment and intentional misreading of her
testified *696 that each of them HIDA scan.
suffered from post-traumatic stress
[24] [25]
disorder. The charge to the jury in the instant case asked if
Dr. Clayton intentionally intruded on Wisener’s “solitude,
Bruce, 998 S.W.2d at 618–19. seclusion or private affairs.” The elements of a cause of
action for invasion of privacy by intrusion on seclusion
Much like the plaintiffs in Bruce, Wisener testified that are 1) the defendant intentionally intruded on the
she suffered anxiety, depression, problems in dealing with plaintiff’s solitude, seclusion, or private affairs, 2) the
her anger, and marital and familial discord as a result of intrusion would be highly offensive to a reasonable
Dr. Clayton’s constant harassment. She also stated that person, and 3) the plaintiff suffered injury as a result of
she sought medical treatment for these problems. the defendant’s intrusion. See Valenzuela v. Aquino, 853
S.W.2d 512, 513 (Tex.1993); Phar–Mor, Inc. v. Chavira,
Kandy Stahl, Ph.D. is a clinical psychologist and chair of 853 S.W.2d 710, 712 (Tex.App.-Houston [1st Dist.] 1993,
the psychology department at Stephen F. Austin State writ denied). The invasion-of-privacy tort is typically
University. She was hired by Wisener’s counsel to associated with either a physical invasion of a person’s
evaluate Wisener and testify as an expert witness in property or eavesdropping on another’s conversation with
psychology. Dr. Stahl testified that Wisener experienced a the aid of wiretaps, microphones, or spying. GTE
significant degree of clinical depression and anxiety, Mobilnet of S. Tex. Ltd. Pshp. v. Pascouet, 61 S.W.3d
which channeled into somatic symptoms such as 599, 618 (Tex.App.-Houston [14th Dist.] 2001, pet.
headaches, gastrointestinal difficulties, sleep disturbances, denied); Wilhite v. H.E. Butt Co., 812 S.W.2d 1, 6
weakness, or fatigue. This evidence of Wisener’s physical (Tex.App.-Corpus Christi 1991, no writ); Cornhill Ins.
and mental problems is legally sufficient to support the PLC v. Valsamis, 106 F.3d 80, 85 (5th Cir.1997), cert.
jury’s finding that Dr. Clayton’s conduct caused Wisener denied, 522 U.S. 818, 118 S.Ct. 69, 139 L.Ed.2d 30
to suffer severe emotional distress. (1997); Wilson v. Sysco Food Svcs. of Dallas, Inc., 940
F.Supp. 1003, 1015 (N.D.Tex.1996) (all citing Gill v.
According to Dr. Stahl, Wisener may have been Snow, 644 S.W.2d 222, 224 (Tex.App.-Fort Worth 1982,
emotionally vulnerable to the harassment because (1) she no writ), overruled on other grounds by Cain *697 v.
had a history of being physically abused, (2) her ex- Hearst Corp., 878 S.W.2d 577 (Tex.1994)).
husband had problems with substance abuse, and (3) she
went through a custody battle in her first marriage for her In Cornhill, the Fifth Circuit Court of Appeals addressed
first two children. Although this evidence supports Dr. a claim for invasion of privacy where offensive comments
Clayton’s argument, we note that Dr. Stahl also testified and inappropriate advances were made toward the
that Wisener has been able to resolve those issues and plaintiff. Cornhill, 106 F.3d at 85. The court held that the
“overcome obstacles along the way.” After reviewing the plaintiff could not recover under an invasion of privacy
evidence, we conclude that evidence of Wisener’s severe cause of action based on the intentional intrusion upon her
emotional distress amounted to more than a scintilla and solitude or private affairs because she did not allege a “
that the jury’s finding was not so weak or the evidence ‘physical invasion of a person’s property or
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Clayton v. Wisener, 190 S.W.3d 685 (2005)

eavesdropping on another’s conversation with the aid of pertains to the legal and factual sufficiency of the
wiretaps, microphones, or spying.’ ” Id. evidence to support the jury’s award of damages for past
mental anguish, is overruled.
The same analysis applies to the instant case. Wisener did
not allege, nor did the evidence show, that Dr. Clayton
physically invaded her property or eavesdropped on one
of her conversations. Furthermore, there is no evidence in B. Past Loss of Earning Capacity
[28] [29] [30]
[31]
the record that Dr. Clayton intentionally misread her Lost earning capacity concerns the
HIDA scan. All of the medical experts testified that the impairment to one’s ability to work. Koko Motel, Inc. v.
results of Wisener’s scan were open to subjective Mayo, 91 S.W.3d 41, 51 (Tex.App.-Amarillo 2002, pet.
interpretation. If anything, the evidence demonstrated that denied). It entails the consideration of what the plaintiff’s
Dr. Clayton was only negligent when he read her HIDA capacity to earn a livelihood actually was and assesses the
scan and did not intentionally misread it in order to cause extent to which it was impaired. Id. Moreover, courts
Wisener harm. Accordingly, Dr. Clayton’s first issue, as it recognize that calculating the extent of impairment
pertains to the legal sufficiency of the evidence to support constitutes an exercise in uncertainty. McIver v. Gloria,
the jury’s invasion of privacy finding, is sustained. 140 Tex. 566, 169 S.W.2d 710, 712 (1943). So, much is
left to the sound discretion of the jury. Id. This does not
mean that it may simply journey into the realm of
conjecture. *698 Quite the contrary, its decision must be
III. Actual Damages based upon such facts as are available in the particular
Dr. Clayton next challenges the legal and factual case. Id.; Strauss v. Continental Airlines, Inc., 67 S.W.3d
sufficiency of the evidence to support the jury’s award of 428, 436 (Tex.App.Houston [14th Dist.] 2002, no pet.).
$20,000.00 for past mental anguish and $72,488.00 for The “damages [must also be] proved with that degree of
past lost earning capacity. certainty of which the case is susceptible.” McIver, 169
S.W.2d at 712. And, “where the plaintiff seeks special
damages for loss of his earning capacity in a particular
business or profession, the amount of his earnings or the
A. Mental Anguish value of his services in that business must be shown with
[26] [27]
To recover mental anguish damages, the plaintiff reasonable certainty.” Id.
must introduce direct evidence of the nature, duration, and
severity of the mental anguish, thus establishing a [32]
Next, the non-exclusive factors to be considered
substantial disruption in the plaintiff’s daily routine. include the earnings of the injured party before and after
Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 the incident. Id. Her stamina and ability to work with pain
(Tex.1995). Direct evidence may be in the form of the and the weakness and degenerative changes that naturally
plaintiff’s own testimony, that of a third party, or that of result from the injury and from long-suffered pain also
an expert. Id. merit consideration. Mayo, 91 S.W.3d at 51. So too does
logic compel that the potential of the individual, or her
We have already concluded that the evidence was legally ability to advance in skill, job, and pay, is also relevant,
and factually sufficient to support a finding that Wisener assuming that the potential can be reasonably extrapolated
suffered severe emotional distress. Therefore, we from the evidence of the particular case. Id.
conclude that the evidence amounts to more than a
scintilla of evidence to support the award of mental In the instant case, the record contains no evidence of
anguish damages. Because the evidence of mental anguish Wisener’s earnings at the time she worked for Medaphis
was uncontroverted, we also conclude that there is or the value of her services. Accordingly, the jury’s award
factually sufficient evidence to support the jury’s findings of $72,488.00 for past loss of earning capacity was based
and will not set aside the finding of the jury. See White v. on conjecture and cannot stand. Dr. Clayton’s first issue,
Sullins, 917 S.W.2d 158, 162 (Tex.App.-Beaumont 1996, as it pertains to the legal and factual sufficiency of the
writ denied) (holding that it is within the province of the evidence to support the award for past loss of earning
jury to resolve matters, such as mental anguish, that are capacity, is sustained.
necessarily speculative and not subject to precise
mathematical calculations). Dr. Clayton’s first issue, as it

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IV. Malice and Exemplary Damages not a remote possibility of injury or even a high
[33]
In his final legal and factual sufficiency challenge, Dr. probability of minor harm, but rather the likelihood of
Clayton argues that there is no evidence or, alternatively, serious injury to the plaintiff.” Lee Lewis Constr., Inc. v.
factually insufficient evidence to support the jury’s Harrison, 70 S.W.3d 778, 785 (Tex.2001). “ ‘[A]ctual
finding that Dr. Clayton acted with malice. We agree. awareness,’ means that the defendant knew about the
peril, but its acts or omissions demonstrated that it did not
Exemplary damages are authorized under the Texas Civil care.” Id.
Practice and Remedies Code when the claimant proves by
clear and convincing evidence that the harm results from Dr. Clayton’s conduct was extreme and outrageous;
fraud, malice, or gross negligence. TEX. CIV. PRAC. & however, there is no clear and convincing evidence in the
REM.CODE ANN. § 41.003(a) (Vernon 2004). The record to support a finding that Dr. Clayton had an actual
charge in Wisener’s case asked the jury if Dr. Clayton awareness that his conduct exposed Wisener to an
acted with malice as the predicate for exemplary extreme risk of substantial harm and proceeded with
damages. Under current law, “malice” is defined as “a conscious indifference to her rights, safety, or welfare.
specific intent by the defendant to cause substantial injury See Dillard Dept. Stores, Inc. v. Silva, 148 S.W.3d 370,
or harm to the claimant.” TEX. CIV. PRAC. & 373–74 (Tex.2004). Because the record is devoid of the
REM.CODE ANN § 41.001(7). At the time this case was clear and convincing evidence of malice that the statute
tried, however, “malice” was defined as requires, Dr. Clayton’s issue regarding the sufficiency of
the evidence to support a finding of malice and exemplary
(A) a specific intent by the damages is sustained.
defendant to cause substantial
injury or harm to the claimant; or
(B) an act or omission: (I) which
when viewed objectively from the
standpoint of the actor at the time EVIDENTIARY RULINGS
of its occurrence involves an [35]
In his third issue, Dr. Clayton argues that the trial
extreme degree of risk, considering
court erroneously admitted evidence of Clayton’s prior
the probability and magnitude of
sexual advances and comments toward other women. In
the potential harm to others; and
his brief, he states that this evidence was admitted through
(ii) of which the actor has actual,
the testimony of twelve witnesses. Wisener contends that
subjective awareness of the risk
Dr. Clayton waived any error. We agree.
involved, but nevertheless proceeds
with conscious indifference to the [36]
The general rule is that error in the admission of
rights, safety, or welfare of others.
evidence is deemed harmless and is waived if the
objecting party subsequently permits the same or similar
Act of April 20, 1995, 74th Leg., R.S., ch. 19, § 1, 1995 evidence to be introduced without objection. Volkswagen
Tex. Gen. Laws 108, 109, amended by Act of June 11,
of America, Inc. v. Ramirez, 159 S.W.3d 897, 907
2003, 78th Leg., R.S., ch. 204, § 13.02, 2003 Tex. Gen.
(Tex.2004). The record reflects that Dr. Clayton objected
Laws 847, 887. to some of the evidence regarding his prior conduct and
[34] that he did not object when that same testimony was
The definition of malice incorporates the objective and
elicited later during the witnesses’ examination.
subjective elements of the malice standard: “(1) viewed
Therefore, Dr. Clayton has waived any error regarding the
objectively from the standpoint of the actor, the act or
admission of evidence of his prior wrongs. Dr. Clayton’s
omission must involve an extreme degree of risk, third issue is overruled.
considering the probability and magnitude of the potential
harm to others, and (2) the actor must have actual,
subjective awareness of the risk involved, but
nevertheless proceed in conscious indifference *699 to
the rights, safety, or welfare of others.” Transp. Ins. Co. v. APPLICATION OF SETTLEMENT CREDIT
Moriel, 879 S.W.2d 10, 23 (Tex.1994). The Texas
Supreme Court has explained that extreme risk “means
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[37]
Both parties agree that $43,020.23 is the amount that have been applied; therefore, he is considered to have
Wisener received from her settlement with Medaphis. The elected a credit under subdivision (2) of section
trial court only applied $1,000.00 from that settlement 33.012(b).
toward the judgment against Dr. Clayton. In his fourth
issue, Dr. Clayton maintains that the trial court erred by We have sustained Dr. Clayton’s issues regarding the
applying only $1,000.00 from Wisener’s previous award of damages for past loss of earning capacity and
settlement with Medaphis toward the trial court’s exemplary damages. The only remaining amount of
judgment. Wisener argues that the $1,000.00 settlement damages found by the trier of fact is the $20,000.00 award
credit was proper. for mental anguish. Five percent of $20,000.00 is
$1,000.00; thus, the trial court did not err by applying
At the time Wisener’s case was tried, a defendant could $1,000.00 toward the judgment as a settlement credit and
elect to have a prior settlement by a claimant credited awarding her $19,000.00 for mental anguish. Dr.
toward a judgment in the amount of Clayton’s fourth issue is overruled.4

(1) the sum of the dollar amounts of all settlements; or

(2) a dollar amount equal to the sum of the following


percentages of damages found by the trier of fact: CONCLUSION

(A) 5 percent of those damages up to $200,000.00; The evidence adduced at trial was legally and factually
sufficient to support the jury’s finding that Dr. Clayton
(B) 10 percent of those damages from $200,000.01 to intentionally inflicted emotional distress upon Wisener
$400,000.00; and to support the jury’s award of $20,000.00 for mental
anguish. However, the evidence was legally insufficient
(C) 15 percent of those damages from $400,001 to to support the jury’s finding that Dr. Clayton invaded
$500,000.00; and Wisener’s privacy by intruding on her seclusion. We also
hold that the evidence was legally and factually
(D) 20 percent of those damages greater than insufficient to support the jury’s finding of malice and the
$500,000.00. award of exemplary damages.
Act of May 18, 1995, 74th Leg., R.S., ch. 136, § 1, 1995
Accordingly, we affirm the portion of the trial court’s
Tex. Gen. Laws 974, amended by Act of June 11, 2003,
judgment awarding Wisener $19,000.00 for mental
78th Leg., ch. *700 204, §§ 4.06, 4.10(4), 2003 Tex. Gen.
anguish. We reverse the portion of the judgment awarding
Laws 857–58.
Wisener $72,488.00 for past loss of earning capacity and
$200,000.00 in exemplary damages and render judgment
Section 33.014 of the Texas Civil Practice and Remedies
that Wisener take nothing on those damage claims.
Code mandated that if a defendant did not make an
election as to how the trial court would credit a previous
settlement, all defendants were considered to have elected
subdivision (2) of section 33.012(b). Act of May 18, All Citations
1995, 74th Leg., R.S., ch. 136, § 1, 1995 Tex. Gen. Laws
974, repealed by Act of June 11, 2003, 78th Leg., ch. 204, 190 S.W.3d 685
§ 4.10(6), 2003 Tex. Gen. Laws 858. Dr. Clayton did not
file a written election as to which dollar credit should

Footnotes

1 Before she sued Dr. Clayton in state court, Wisener sued Medaphis in the United States District Court for the Eastern
District of Texas, Lufkin Division, in an action styled Wisener v. Medaphis Physicians Servs. Corp., No. 9:97cv185.
Wisener contends that she alleged the same facts in that case as she does in the instant case and that her federal
claims against Medaphis were confidentially settled. She also contends that the claims against Dr. Clayton in the
federal court case were dismissed without prejudice for lack of federal question jurisdiction.

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2 In its judgment, the trial court reduced the $500,000.00 exemplary damage award to $200,000.00 pursuant to section
41.008(b)(2) of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC & REM.CODE ANN. §
41.008(b)(2) (Vernon 2004).

3 Dr. Clayton’s first issue comprises multiple sub-issues.

4 Dr. Clayton’s fifth and sixth issues address 1) the trial court’s submission of damages for past loss of earning capacity
and 2) its failure to order that Wisener remit the damages awarded to her for past loss of earning capacity and
exemplary damages. We have sustained other issues in which Dr. Clayton makes related arguments; therefore, we do
not need to address his fifth and sixth issues.

End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.

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