Editor's note: A previous version of this story incorrectly identified Justice David Gaultney as the author of the affirmative opinion. The opinion was written by Justice Hollis Horton as indicated in the following story.

Justices on the Texas Ninth Court of Appeals released an opinion on Oct. 4 partially affirming and partially reversing a $1.7 million verdict awarded by jurors to Vivian Walker for mental anguish she suffered when her 26-year-old daughter died of alleged negligent medical treatment back in 2002.

The claims in the case arise from the Jan. 28, 2002, death of Shiketa Walker. Shiketa's parents, Vivian Walker and Alex Strange, filed a medical malpractice lawsuit with the Jefferson County District Court, alleging that the negligence of Memorial Hermann Baptist Hospital, Dr. William Hawkins and Dr. Steven Kastl caused Shiketa's death.

The case was assigned to Judge Gary Sanderson's 60th Judicial District. In December of 2005, jurors found both Dr. Hawkins and Dr. Kastl negligent but found no negligence on the part of Memorial Hermann. Dr. Kastl had settled the claims against him prior to jury selection.

Not happy with the lopsided $1.7 million judgment, Dr. Hawkins and Strange, Shiketa's father, appealed the case. It was submitted for submission on March 8, 2007.

In the released opinion, Justice Hollis Horton wrote, "In this wrongful death case, we consider whether the evidence is legally and factually sufficient to support the jury's award of $1.7 million in damages to Vivian Walker for past and future mental anguish and for past and future loss of companionship and society arising from the death of her 26-year-old daughter, Shiketa. Among other issues, we review the legal and factual sufficiency of the jury's damage award to Vivian. We also consider whether the jury's award of $7,000 wrongful death damages to Alex Strange, Shiketa's father, is against the greater weight and preponderance of the evidence.

"We conclude that the evidence is legally sufficient, but factually insufficient, to support the jury's damage award to Vivian. As a result, we reverse and remand the judgment entered in Vivian's favor for a new trial. We further conclude that the jury's award to Alex is not against the greater weight and preponderance of the evidence, and affirm the judgment regarding his claims."


According to the opinion and suit documents, on Jan. 25, 2002, Shiketa was treated at Memorial Hermann. She told nurses she was pregnant and reported that she had been bleeding and passing clots for two weeks. Dr. Hawkins, the on call physician, ordered an ultrasound and told nurses to discharge Shiketa and to tell her to see her regular physician on Monday if the ultrasound did not show she had a baby in her uterus. Shiketa's ultrasound showed "no significant abnormality" and she was discharged.

Two days later, on Jan. 27, 2002, Shiketa sought treatment at St. Elizabeth Hospital and saw Dr. Kastl, complaining of abdominal pain. Following a positive pregnancy test and his examination, Dr. Kastl diagnosed Shiketa as suffering from constipation and also discharged her.

The following day, Shiketa died at home from a ruptured tubal ectopic pregnancy.

The appeal

Dr. Hawkins had challenged the legal sufficiency of the evidence supporting the jury's damages award to Shiketa's mother.

According to the opinion, the jury awarded Vivian $1 million for past and future loss of companionship, $700,000 for past and future mental anguish, and $5,000 for funeral and burial expenses.

Dr. Hawkins did not challenge the jury's award for funeral and burial expenses. However, he did challenge the award of $1.7 million in non-pecuniary damages, arguing that the jury's award is excessive because the evidence showed that Shiketa moved out of Vivian's home in the ninth grade, Vivian did not know that Shiketa was pregnant and Vivian did not accompany Shiketa to the hospital on Jan. 25 or Jan. 27.

"Dr. Hawkins concludes that these facts show a strained relationship between Shiketa and her mother," the opinion stated.

Dr. Hawkins also asserted that the evidence is legally insufficient to support the jury's findings against him on negligence and causation. He contended the evidence is legally insufficient because Shiketa was treated and discharged by Dr. Kastl just one day before her death, and that during her earlier treatment at Memorial Hermann Shiketa lacked abdominal pain, a key symptom of an ectopic pregnancy, the opinion and suit documents stated.

"When analyzing a legal sufficiency claim, we view the evidence in the light most favorable to Vivian, the prevailing party, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not," Justice Horton wrote. "As a result, we find sufficient evidence in the record to conclude that reasonable and fair-minded people could agree with the jury's resolution of the negligence issue."

And as far as the mother and daughter relationship challenge goes, Justice Horton wrote that during the last few years of Shiketa's life, she and Vivian saw each other several times a week and talked frequently on the phone. During the last few days of Shiketa's life, Vivian had telephone contact with Shiketa regarding her health problems. Vivian related that she spoke to Shiketa several times by phone between Jan. 25 and 27.

"Whether factually sufficient evidence supports the damages awarded by the jury to Vivian for her mental anguish and loss of companionship and society is a difficult question," Justice Horton wrote. "A court that reduces a jury's damage award faces criticism that it is not sympathetic to the loss suffered by the survivors. On the other hand, jury verdicts perceived as being excessive result in legislative efforts to cap the amounts that can be awarded in judgments, regardless of the damage suffered by the victim."

The father

"We conclude that the jury's refusal to award (Strange) past loss of companionship and future mental anguish is a decision that involves overlapping damages," Justice Gaultney wrote. "Therefore, the jury's apparently inconsistent award is one that was within the jury's province.

"Given the testimony, or lack thereof, to establish that (Strange) had a close relationship with Shiketa, the jury's total damage award of $7,000 for the intangible losses (Strange) suffered is not so against the great weight and preponderance of the evidence that it is manifestly unjust, nor does the award shock our conscience or clearly demonstrate bias."

Dissenting opinion

Justice Charles Kreger affirmed the damages awarded.

In his dissenting opinion, he wrote, "While I agree with the majority that appellate courts are to conduct a meaningful evidentiary review in order to insure that the amount awarded is fair and reasonable, under a factual sufficiency review, appellate courts review all of the evidence to determine if it is so weak, or the contrary evidence so overwhelming, as to render the finding clearly wrong or manifestly unjust.

"The mere fact that an award is large does not show that the jury was influenced by passion, prejudice, sympathy, or other circumstances not in evidence, and the award must be flagrantly outrageous, extravagant, and so excessive that it shocks the judicial conscience before an appellate court sets it aside lest we run afoul of the Texas Constitution's guarantee of a right to trial by jury.

"Because the jury awarded future mental anguish damages in an amount less than one-half of the amount awarded for mental anguish damages suffered in the past, it clearly shows that the jury did not '. . . simply pick a number and put it in the blank.' (Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996).

"To the jury is consigned under the constitution the ultimate power to weigh the evidence and determine the facts - and the amount of damages in a particular case is an ultimate fact. The jury's role in determining non-economic damages is perhaps even more essential and should not be disturbed on appeal unless such award is flagrantly outrageous, extravagant, and so excessive that it shocks the judicial conscience as to be clearly wrongfully influenced by passion, prejudice, sympathy or other circumstances not in evidence."

Appeal Case No. 09-06-287 CV

Trial Case No. A167-869 consolidated with D169-841

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