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United States Court of Appeals,
Fifth Circuit.
No. 917036.
Evelyn M. BAILEY and Lawrence Collinw, Jr., PlaintiffsAppellants,
v.
Jeffrey Paul DANIEL, DefendantAppellee.
Aug. 4, 1992.
Appeal from the United States District Court for the Northern District of Texas.
Before HIGGINBOTHAM and DUHÉ, Circuit Judges and HUNTER, District Judge.1
DUHÉ, Circuit Judge:
Plaintiffs seek review of the trial court's denial of their motion for new trial. Finding no error
in the award of damages and interest , we affirm. Because the court erred in calculating costs,
however, we reverse and render that award.
BACKGROUND
In December 1987 Defendant Daniel accidentally rear-ended Plaintiff's car. Plaintiff Bailey,
a teacher, was treated in a nearby emergency room for neck and back injuries. Bailey did not return
to work for the spring term and took disability retirement in June 1988, largely due to severe
hypertension. Plaintiff Collins, a homemaker, was not immediately treated, but complained of neck
and back pain sometime after the accident. Collins further injured his back in a fall in December 1988
and a jump in 1989. Collins has since been diagnosed as suffering from neck and back sprain and a
ruptured disc.
Invoking diversity jurisdiction, Plaintiffs sued Daniel in federal court. Daniel conceded
liability and the parties consented to a trial before a magistrate judge on the issue of damages. The
judge awarded Bailey $3,459.25 for medical expenses, $6,030.99 for loss of earning capacity, and
1Senior District Judge of the Western District of Louisiana, sitting by designation.

$7,000 for physical pain and suffering. Collins was awarded medical expenses only, totalling $2,490.
Plaintiffs moved for new trial claiming that the awards were insufficient. The judge denied
the motion.
ANALYSIS
A trial judge's ruling on a motion for new trial is reviewed for an abuse of discretion. This
standard of review is somewhat narrower when a new trial is denied and somewhat broader when a
new trial is granted. Jones v. WalMart Stores, Inc., 870 F.2d 982, 986 (5th Cir.1989).
Damages
Plaintiffs contend that they are entitled to a new trial because the court erred by not awarding
damages for mental anguish and grief despite the great weight and preponderance of the evidence.
They also argue that Collins proved that he suffered physical pain and thus should be compensated
for it.
For pleading purposes, Texas courts have long recognized the rule that "the law infers mental
suffering from severe injuries." Texas & N.O. R.R. Co. v. Cade, 351 S.W.2d 663, 664
(Tex.Civ.App.--Waco 1961, writ ref'd n.r.e.). From this rule evolved the tendency of Texas courts
to reverse "zero damages" awards for "pain and suffering and mental anguish" as against the great
weight and preponderance of evidence when plaintiffs present objective evidence of serious injury.
See, e.g., Martin v. Warren & Miller Co., 639 S.W.2d 706, 708 (Tex.Ct.App.--Tyler 1982, no writ).
In keeping with these decisions, this Court in Jones v. WalMart Stores, Inc., reversed a zero
damages award for future mental anguish where the jury had awarded damages for future pain and
suffering. 870 F.2d 982, 989 (5th Cir.1989). In Jones, we stated, "It is clear from Texas case law
that if a serious injury is proved with objective evidence beyond dispute and liability is fixed, a jury's

answer of "none' to a damages issue of past mental anguish will be reversed by Texas courts." Id.
at 987. Jones represented a step, albeit a small one, from the cases on which it relied for in each of
those cases, the jury had returned "none" answers to "pain and suffering and mental anguish." See,
e.g., Sansom v. Pizza Hut of East Texas, Inc., 617 S.W.2d 288 (Tex.Civ.App.--Tyler 1981, no writ).
In other words, the jury in the Jones trial took a seemingly unusual turn when it awarded damages
for pain and suffering, but not mental anguish. Jones rendered this novel appro ach impermissible
where objective evidence of serious injury is presented.
While we took this step with little trouble in Jones, we noted a concurrent line of Texas cases
upholding "zero damages" awards. Jones, 870 F.2d at 988. In distinguishing those cases we
explained, "if plaintiffs complaints are subjective in nature, i.e., headaches, which the defendant may
not readily dispute, then the negative answer of the jury to the damage issue will not be disturbed
when it rests upon the testimony of the plaintiff alone." Id. (quoting Dupree v. Blackmon, 481
S.W.2d 216, 221 (Tex.Civ.App.1972)).
Plaintiff Bailey's injuries are of the type prevalent in the latter line of cases. See McGuffin
v. Terrell, 732 S.W.2d 425, 42627 (Tex.App.--Fort Worth 1987, no writ); Craig v. Allen, 556
S.W.2d 644, 647 (Tex.Civ.App.--Tyler 1977, writ ref'd n.r.e.); Hulsey v. Drake, 457 S.W.2d 453,
460 (Tex.Civ.App.--Austin 1970, writ ref'd n.r.e.). Although Bailey presented the depositions of
several doctors, their testimony was inconclusive. One reported that Bailey's test results were normal;
another opined that Bailey's complaints constituted malingering. None thought the injuries
necessitated Bailey's retirement. Thus, with respect to pain and suffering and mental anguish, the
judge was left with the subjective complaints of Bailey alone, which the judge did not find credible.
Jones, therefore, is not readily applicable. Had the judge awarded Bailey "zero damages" for pain
and suffering and mental anguish, Texas case law would not require us to reverse the award. We
decline, therefore, to reverse her award of partial damages.

Collins's injuries are similarly subjective. Although he presented evidence that he now suffers
from a ruptured disc, none of Collins's witnesses could, with certainty, link that injury to the accident
with Daniel. To the contrary, at least one doctor testified that Collins's injuries were related to
pre-existing and subsequent injuries. Without objective evidence linking Collins's back problems to
the automobile accident, the judge again was left with the subjective testimony of the plaintiff, most
of which she explicitly found incredible. Governed by the ideas expressed in Dupree, McGuffin, and
others described above, we accord the opinion of the fact-finder great deference, and, therefore,
affirm.
Costs
The judge awarded Plaintiffs costs of $240 for witness fees, $40 for each witness deposed.
One witness, Dr. Ioppolo, however, was the subject of two depositions, set exactly one year apart
from each other. Plaintiffs contend that the costs should be increased by $40 to reflect Dr. Ioppolo's
second appearance. Such errors should be raised in the trial court. Kansas City S. Ry. Co. v. Caruso,
387 F.2d 602, 602 (5th Cir.1968). In this instance, however, it is evident from the record that the
Magistrate erred in compensating for only one day of Dr. Ioppolo's attendance. We, therefore,
reverse the award of costs and render a cost award in the amount $280.
Interest
Plaintiffs also contend that the judge miscalculated the award of pre-judgment interest.
Interest was set to run 180 days from December 9, 1988, the date Plaintiffs filed suit. As Plaintiffs
have offered no evidence of a written demand preceding this date, we find no error in the award. See
Tex.Rev.Civ.Stat.Ann. art. 50691.05, § 6(a) (West Supp.1991).
The judgment of the trial court with respect to damages and prejudgment interest is
AFFIRMED. The award of costs is REVERSED and RENDERED.