Written by John Schneider

Case tried in Texas, Travis County

Verdict (P) $241,000

Case Francisco Martinez Jr. and Brenda De La Cruz v. Sergio Angel Garcia, No. C-1-CV-16-001694
Court Travis County Court at Law No. 1
Judge Todd T. Wong
Date 8/24/2017


Leonard B. Gabbay, Leonard B. Gabbay P.C., Austin, TX


W. Paul Miller, Germer, Beaman & Brown PLLC, Austin, TX

Facts & Allegations

On Oct. 11, 2014, plaintiff Francisco Martinez Jr., 18, a tiler for his father’s business, was stopped in a line of cars at the intersection of 32nd Street and the access road of Interstate 35 in Austin. His girlfriend, plaintiff Brenda De La Cruz, was a passenger. Martinez saw Sergio Angel Garcia approaching from behind and tried to put his car in gear and move into the right lane. Garcia clipped the left rear of Martinez’s car. After failing a field sobriety test, Garcia was arrested. The plaintiffs claimed bodily injuries; Martinez’s were to his neck, back and hand.

Martinez and De La Cruz sued Garcia for negligently driving while intoxicated, failing to keep a proper lookout, failing to control his speed, driving too fast, following too closely, and failing to brake or turn in time to avoid the collision. Garcia had been smoking marijuana that night, and he had taken three Xanax tablets the night before. De La Cruz settled with Garcia before trial for $30,000. The case went to trial on Martinez’s claims only.

The defense did not strongly dispute negligence, but did dispute gross negligence and causation of Martinez’ injuries. Regarding punitive damages the defense put on evidence that the Defendant made $12/hr. at a bakery and had a 10 month old daughter.


The plaintiffs were taken by ambulance to the emergency room. Martinez claimed neck and back pain and pain in his right fourth metacarpal.

The plaintiffs were released from the emergency room that night. Martinez saw a chiropractor for his injuries for two and a half months (29 visits). Martinez returned to the chiropractor for 1 visit seven months later, in May 2015, with ongoing right hand pain. After another 20 months, he presented to a physical medicine and rehabilitation doctor, who treated his hand pain.

Martinez was off work intermittently after the accident, but missed no work after January 2015.

He was also an amateur boxer and, since age 7, he had been in 119 amateur fights. He testified that, seven months before the accident, he decided to obtain a professional boxing license and underwent the required medical exam, eye exam and physical, although he had not yet submitted the paperwork to obtain his license. He claimed that, because of his injuries, he could no longer box.

He did not ask the jury for medical bills or lost wages. He sought only past and future physical pain and mental anguish, past and future physical impairment and punitive damages.

The defense denied any hand injury and argued that, if there was any hand injury, it was unrelated to the accident. The defense emphasized the gaps in treatment and the fact that none of the hand X-rays or MRIs showed any objective injury. Experts both stated that neither saw any evidence of a hand injury. Defense orthopedic doctor, Clark Race, M.D., stated that Martinez’ back pain was unrelated to the rear end collision. Both defense experts stated that any sprain strain injury would have healed after 2-3 months post incident.


The jury found Garcia negligent and grossly negligent and awarded Martinez $241,000.


Francisco Martinez, Jr.

$47,000 past physical impairment
$70,000 future physical impairment
$4,000 punitive damages
$30,000 past physical pain and mental anguish
$90,000 future physical pain and mental anguish
$241,000 plaintiff’s total award

Brenda De La Cruz

Demand $200,000.
Offer $22,000


GEICO Insurance Company

Trial Details

Trial Length: 4 days
Jury Deliberations: 4 hours
Jury Poll: 12-0
Jury Composition: None reported

Carlton Erickson, Ph.D., pharmacology, Austin, TX (Leonard B. Gabbay)
Eduardo Elizondo, M.D., physical medicine, Austin, TX (Leonard B. Gabbay) (treater)

Clark Race, M.D., orthopedic surgery, Austin, TX (W. Paul Miller)
Stephen Rose, M.D., hand surgery, Austin, TX (W. Paul Miller)

None reported

Editor’s Note
None reported


Francisco Martinez, Jr.

Age: 18 Years
Occupation: Tiling
Gender: Male
Married: yes
Children: 1
Children Description: n/a

Brenda De La Cruz

Age: None reported
Occupation: None reported
Gender: Female
Married: None reported
Children: None reported
Children Description: None reported

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