IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 99-40185 Summary Calendar _____________________

LINDA SARTIN,

Plaintiff-Appellee,

versus

WAL-MART STORES, INC.; ET AL.,

Defendants,

WAL-MART STORES, INC.,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:98-CV-1501 _________________________________________________________________

January 10, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

In 1997, Linda Sartin was suffering from worsening health,

including back problems. On a trip to a local Wal-Mart on

November 28, 1997, she slipped on a table that a Wal-Mart employee

was disassembling on the floor. Sartin asserts that she was

injured in this incident. She sued Wal-Mart and won a judgment of

$120,700. The defendants appeal the judgment, making three

arguments.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. I

In this case, based on diversity jurisdiction, Wal-Mart begins

by arguing that there was insufficient evidence to present two

damages issues to the jury. The first is the claim for future

medical expenses. In evaluating the sufficiency of the evidence,

we view all evidence and reasonable inferences in favor of Sartin.

Baltazor v. Holmes,

(5th Cir. 1998). Only when

the facts and the reasonable inferences are such that a reasonable

juror could find in favor of Wal-Mart will we hold that there was

an insufficient evidentiary basis.

In order to recover for future medical expenses under Texas

law, the plaintiff must show that there is a reasonable probability

of incurring such medical expenses in the future. See Fisher v.

Coastal Transp. Co.,

(Tex. 1950); Fibreboard

Corp. v. Pool,

(Tex.App. Texarkana 1991); City

of Rosenberg v. Renken,

(Tex.App. Houston

1981). The reasonable value of future medical care may be

established by evidence of the reasonable value of past medical

treatment. See Harvey v. Culpepper,

(Tex.App.

Corpus Christi 1990); Renken,

; Thate v. Texas &

Pac. Ry. Co.,

(Tex.App. Dallas 1980). In this

case, Sartin proved a reasonable probability of future x-rays, MRIs

and CAT scans and presented evidence of the cost of these

procedures in the past. For these reasons, the issue of future

medical expenses was properly before the jury.

2 Second, Wal-Mart argues that the evidence is insufficient to

support damages for future pain and mental anguish. Matters of

pain and suffering are necessarily speculative, and it is within

the particular province of the jury reasonably to set the amount of

such damages. Hicks v. Ricardo,

(Tex.App.

Houston 1992). Awards for mental anguish survive sufficiency of

the evidence challenge when the plaintiff introduces direct

evidence of the nature, duration, and severity of the anguish,

thereby establishing a substantial disruption in the plaintiff’s

daily routine. Parkway Co. v. Woodruff,

(Tex.

1994). Mental anguish may be inferred from injuries accompanied by

physical pain proximately caused by the defendant. Brookshire

Brothers, Inc. v. Wagnon,

(Tex.App. Tyler

1998). In this case, Sartin presented her own and her husband’s

testimony about continuing physical pain. Dr. Cooper testified

that the Wal-Mart injury was at least partly to blame for this

pain. This damage issue was also, therefore, properly before the

jury.

II

Wal-Mart’s second major argument attacks the district court’s

decision to exclude a videotape. This video was taken just over a

week before trial, on November 28, 1998. It showed Sartin working

in her garden without visible discomfort. At trial, however, she

testified to an inability to bend over and lift anything without

severe pain.

3 Though it is not clear when defense counsel obtained

notification or a copy of the videotape, counsel faxed Sartin’s

lawyer notification of the videotape’s existence on Friday,

December 4, at 5:21 p.m., and sent a copy of the videotape for

Saturday delivery to Sartin’s lawyer’s office. That office was

closed on Saturday. Trial began on Monday, December 7. A copy of

the videotape did not arrive at Sartin’s lawyer’s office until

about 2:00 p.m. that afternoon, and the plaintiff rested at 3:00

p.m.

For these reasons, the plaintiff’s counsel filed a motion to

strike the videotape for untimeliness and for a failure to provide

the name of the witness who would present it. The district court,

however, inexplicably excluded the videotape as a “surveillance

deposition” for failure to follow the rules and regulations with

respect to depositions.

Though the district court’s reason for the exclusion was

erroneous, we will not disturb the district court’s improperly

reasoned decision if there are alternative meritorious grounds for

that judgment. SEC v. Chenery Corp.,

,

,

(1943); Metallurgical Industries, Inc. v.

Fourtek, Inc.,

(5th Cir. 1986). The proper

grounds for excluding this evidence was its untimeliness. Wal-Mart

has not presented any justification for the tardy disclosure to

defense counsel. Nor do the affidavits on this subject explain the

4 delay between the surveillance and disclosure. Thus, the evidence

was properly excluded.

Wal-Mart contends that the district court was biased because,

while denying it the use of its videotape, the court allowed Sartin

to use undisclosed audio tape recordings of an interview between

Sartin’s lawyer and a defense witness to impeach the witness.

Under Chiasson v. Zapata Gulf Marine Corp.,

(5th

Cir. 1993), however, these two recordings are distinguishable.

Chiasson held that videotapes similar to Wal-Mart’s had value as

substantive evidence as well as for impeachment. Wal-Mart’s

videotape does as well. It is probative as to actual harm to

Sartin and the effect on her quality of life as a result of her

slip and fall. The tape recordings by Sartin’s lawyer, however,

had no substantive value: the impeaching statement concerned the

clarity of the witness’s memory, not the specific events

surrounding the accident. Thus, since the audio tapes were solely

for impeachment, they did not need to be disclosed.

III

Wal-Mart’s last argument is meritless. The company asserts

that Texas law prohibits courts from informing juries of the

consequences of their factual findings, and that the jury charge

mentioning that a finding of contributory negligence would reduce

the award to the plaintiffs was, in this diversity case, reversible

error. But it is well established that while state law governs the

substance of the jury instructions, the manner of giving

5 instructions is controlled by federal law. Martin v. Texaco,

, 216 (5th Cir. 1984). Unlike the Texas courts, federal

courts are free to tell juries the effects of their answers. Id.

Thus, the instruction in this case was not in error.

IV

For the reasons stated herein, the verdict is

A F F I R M E D.

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