Katy Springs & Manufacturing, Inc. v. Joseph Favalora ( 2015 )

Affirmed as Modified and Opinion filed August 27, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00172-CV
KATY SPRINGS & MANUFACTURING, INC., Appellant
V.
JOSEPH FAVALORA, Appellee
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Cause No. 2011-15658
OPINION
This is a personal-injury case involving a worker’s compensation
nonsubscriber. A jury found appellant Katy Springs & Manufacturing, Inc. liable
for negligence and awarded appellee Joseph Favalora $779,627.02 in
compensatory damages. Katy Springs appeals the judgment in eight main issues
and a number of sub-issues. We modify the trial court’s judgment to delete the
$100,000 award for future mental anguish and affirm the judgment as modified.
I. SUMMARY FACTUAL & PROCEDURAL BACKGROUND
On October 5, 2010, Favalora was working by himself on a manufacturing
line producing industrial springs at Katy Springs’ facility in Katy, Texas. During
his shift, a bundle of large-gauge wire used to make the springs jammed in a pay-
off reel that was fabricated by employees at Katy Springs. As Favalora bent down
to free the jammed wire, the wire began to escape through a three-inch gap at the
top of the reel. The escaping wire hit Favalora in the chest, causing him to fall.
Favalora started to feel pain in his chest and neck. He went to an urgent care
facility and was later transferred to Memorial Hermann Katy Hospital where a
doctor diagnosed him with a chest contusion, neck sprain, and cervical
radiculopathy. Following the October 5, 2010 accident, Favalora endured long-
term chronic neck pain and numbness in his arm. In 2012, he relocated to
Louisiana and began consulting with Dr. Bradley Bartholomew, a neurosurgeon.
Eventually, after exhausting conservative pain treatments, including epidural
steroid injections and prescription pain medications, Dr. Bartholomew
recommended spinal surgery. In March 2013, Favalora had the surgery, which
fused his C3-4 and C5-6 vertebrae.
Favalora sued Katy Springs for negligence. The case went to trial, and the
jury returned a verdict in favor of Favalora. The jury awarded Favalora
$204,627.02 for past medical expenses; $25,000 for lost earning capacity in the
past; $81,000 in past physical pain and suffering; $100,000 for future physical pain
and suffering; $19,000 for past physical impairment; $100,000 for future physical
impairment; $150,000 for past mental anguish; and $100,000 for future mental
anguish. The judgment was signed on December 16, 2013. Katy Springs filed a
motion for new trial, which was denied by the trial court in an order dated
February 24, 2014. Katy Springs timely appealed. Katy Springs appeals the
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judgment in eight main issues and a number of sub-issues, which we summarize
here:
1. The evidence is legally and factually insufficient to sustain the
jury’s finding on negligence.
2. The evidence shows that Favalora was the sole cause of his
injuries.
3. The evidence is (1) legally insufficient to sustain the jury’s award
for past medical expenses; (2) legally insufficient to sustain the
jury’s awards for past and future mental anguish; and (3) legally
and factually insufficient to sustain the jury’s awards for past and
future physical impairment.
4. The trial court erred in admitting evidence of Favalora’s damages
because (1) the admission of the full amounts of Favalora’s
medical bills rather than the amounts received by the providers
from a third party violated Civil Practice and Remedies Code
section 41.0105; (2) the affidavits do not comply with Civil
Practice and Remedies Code section 18.001; and (3) the trial court
should have allowed additional pretrial discovery on the damage
amounts. Katy Springs further contends (4) the trial court allowed
Favalora to submit duplicative evidence of medical bills; and (5)
the trial court erred in striking Katy Springs’ counter-affidavit.
5. Favalora’s counsel engaged in improper jury argument that was
incurable.
6. The trial court erred in excluding evidence of Favalora’s prior
illegal drug use.
7. The jury charge was “fraught with errors of inclusion and
exclusion.”
8. The trial court erred in denying Katy Springs’ motion to reopen
evidence and motion for new trial.
We consider each issue and the related sub-issues in turn.
II. SUFFICIENCY OF THE EVIDENCE TO SUPPORT JURY’S FINDING OF
NEGLIGENCE
In its first issue Katy Springs contends the evidence is legally and factually
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insufficient to support the jury’s finding of negligence. Katy Springs specifically
challenges the jury’s findings on the duty, breach, and causation elements.
A. Standard of Review
When an appellant challenges the legal sufficiency of the evidence on a
matter for which he did not have the burden of proof, he must demonstrate on
appeal that there is no evidence to support the adverse findings. Croucher v.
Croucher, 660 S.W.2d 55, 58 (Tex. 1983); McCullough v. Scarbrough, Medlin &
Assocs., Inc., 435 S.W.3d 871, 892 (Tex. App.—Dallas 2014, pet. denied). Under a
no-evidence point, we consider the evidence in the light most favorable to the
verdict, indulging every reasonable inference in support. City of Keller v. Wilson,
168 S.W.3d 802, 822 (Tex. 2005). We are mindful in our review that jurors are the
sole judges of the credibility of the witnesses and the weight to be given their
testimony. Id. at 819. A legal sufficiency challenge fails if there is more than a
scintilla of evidence to support the judgment. BMC Software Belg., N.V. v.
Marchand, 83 S.W.3d 789, 795 (Tex. 2002). “The final test for legal sufficiency
must always be whether the evidence at trial would enable reasonable and fair-
minded people to reach the verdict under review.” City of Keller, 168 S.W.3d at
827. Evidence that does no more than create a surmise or suspicion is insufficient
to rise to the level of a scintilla and, in legal effect, is no evidence. Ford Motor Co.
v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).
When we evaluate a factual sufficiency challenge, we must consider and
weigh all the evidence; we can set aside a verdict only if the evidence is so weak or
if the finding is so against the great weight and preponderance of the evidence that
it is clearly wrong and unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242
(Tex. 2001) (per curiam). If we affirm a challenged jury verdict as being supported
by factually sufficient evidence, we need not detail all the evidence in support of
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the verdict. In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d
204, 211 (Tex. 2009) (orig. proceeding). We must not substitute our judgment for
that of the jury and should remain cognizant that the jury is the sole judge of
witness credibility. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761
(Tex. 2003).
B. Duty & Breach
In order to establish negligence, the plaintiff must produce evidence to
establish the existence of a duty and a breach of that duty. Lee Lewis Constr., Inc.
v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). The existence of a duty is a question
of law. Nat’l Convenience Stores, Inc. v. Matherne, 987 S.W.2d 145, 149 (Tex.
App.—Houston [14th Dist.] 1999, no pet.).
Under Texas law, an employer has a well-established non-delegable and
continuous duty to furnish reasonably safe instrumentalities with which its
employees are to work. Farley v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex.
1975), overruled on other grounds, Parker v. Highland Park, Inc., 565 S.W.2d 512
(Tex. 1978); see Austin v. Kroger Tex., L.P., — S.W.3d —, No. 14-0216, 2015 WL
3641066, at *16 (Tex. Jun. 12, 2015). Therefore, Katy Springs, as Favalora’s
employer, had a duty to furnish Favalora with reasonably safe machinery.
To establish a breach of this duty, Favalora had to prove either that Katy
Springs did something an ordinarily prudent employer exercising ordinary care
would not have done under the circumstances, or that Katy Springs did not do that
which an ordinarily prudent employer would have done in the exercise of ordinary
care. Aguirre v. Vasquez, 225 S.W.3d 744, 757 (Tex. App.—Houston [14th Dist.]
2007, no pet.). Whether a defendant breached its duty is a question of fact. Id.
The evidence is legally and factually sufficient to support the jury’s finding
that Katy Springs breached its duty to furnish Favalora with reasonably safe
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machinery. At the time of the accident, Katy Springs owned two pay-off reels—the
company-made reel and a “yellow reel” made by Spectral Systems. The company-
made reel lacked two safety mechanisms that the yellow reel had: (1) a safety
brake intended to prevent creeping of the basket when the machine is stopped, and
(2) containment arms designed to allow wire to escape only from a particular area,
known as the “escapement area.” The steel support arms of the company-made reel
had deep gouges that trapped the wire and caused it to build tension with each
revolution. Instead of containment arms to prevent wire from escaping, the top of
the company-made reel had a three-inch gap that allowed the tensioned wire to
escape in a 360-degree pattern.
The jury heard testimony from several of Katy Springs’ employees. These
employees generally agreed that Favalora should “run away” if the wire started
escaping from the three-inch gap after having become trapped by the gouges. The
employees confirmed that wire had escaped from the reel in the past. Favalora
testified that wire escaped from the company-made reel twice during his shift on
October 4, 2010. Despite these concerns, Katy Springs made no effort to repair or
change the design of the company-made reel.
Based on the testimony and evidence, reasonable jurors could have
concluded that Katy Springs did not act as a reasonable employer when it allowed
Favalora to work on the company-made reel that lacked any safety features and
was recognized as being unsafe by several Katy Springs employees. The evidence
furnishes some reasonable basis for fair-minded people to reach the conclusion that
Katy Springs breached its duty to provide Favalora with reasonably safe
machinery. Furthermore, based on our review of the entire record, the evidence
supporting the jury’s finding that Katy Springs breached its duty is not so weak,
and the evidence to the contrary is not so overwhelming, that the finding should be
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set aside. Therefore, the evidence was legally and factually sufficient to support the
jury’s finding that Katy Springs breached its duty to provide Favalora with
reasonably safe machinery. See Pilgrim’s Pride Corp. v. Burnett, No 12-10-00037-
CV, 2012 WL 381714, at *13 (Tex. App.—Tyler Feb. 3, 2012, no pet.) (mem.
op.); LMC Complete Auto., Inc. v. Burke, 229 S.W.3d 469, 477 (Tex. App.—
Houston [1st Dist.] 2007, pet. denied).
C. Proximate Cause
A plaintiff must prove that the defendant’s negligence was the proximate
cause of his injuries. Ambrosio v. Carter’s Shooting Ctr., Inc., 20 S.W.3d 262, 265
(Tex. App.—Houston [14th Dist.] 2000, pet. denied). To establish proximate
cause, the plaintiff must prove foreseeability and cause in fact. Id. To establish
foreseeability, the plaintiff must show that the defendant should have anticipated
the dangers that its negligent act or omission created for others. Id. Foreseeability
requires only that the general danger, not the exact sequence of events that
produced the harm, be foreseeable. Id.
The test for cause in fact is whether the negligent act or omission was a
substantial factor in bringing about the injury, without which the harm would not
have occurred. Id. at 266. The plaintiff must prove cause in fact with evidence of
probative force. Id. Cause in fact is not shown if the defendant’s negligence did no
more than furnish a condition that made the injury possible. Id. Instead, the
evidence must show that the negligence was the proximate, not the remote, cause
of the injuries and justify the conclusion that the injury was the natural probable
result. Id.
Generally, the issue of proximate cause is a question of fact. Id. It can be a
question of law in potentially two situations: (1) when the evidence is without
material dispute and where only one reasonable inference may be drawn, and (2)
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when the relationship between the plaintiff’s injuries and the defendant’s
negligence is attenuated or remote. Id. Both causation elements can be established
by direct or circumstantial evidence. McClure v. Allied Stores of Tex., Inc., 608
S.W.2d 901, 903 (Tex. 1980).
The cause-in-fact element is satisfied in this case. Katy Springs built the
company-made reel from which the wire escaped. The wire escaped because of the
gouges in the support arms, which trapped the wire and allowed it to build tension,
and the three-inch gap at the top of the reel, which allowed the tensioned wire to
escape the confines of the company-made reel. When the wire escaped on October
5, 2010, it impacted Favalora and caused him to fall. The jury could have
concluded from this evidence that Katy Springs’ failure to provide Favalora with
reasonably safe machinery was a substantial factor in his fall, one without which
his fall would not have occurred. See, e.g., Nw. Mall, Inc. v. Lubri-Lon Int’l, Inc.,
681 S.W.2d 797, 803 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.).
The evidence also supports a conclusion that Favalora’s injuries were
foreseeable. Katy Springs was aware that the company-made reel posed a safety
hazard. The company’s training program included the instruction to “run away” if
the wire began to escape from the company-made reel. The company-made reel
had deep gouges that caused the wire to build tension during operation. An
employee testified that wire had escaped from the gap on at least two prior
occasions. Favalora testified that wire had escaped twice since he started working
at Katy Springs. The jury could have concluded from this evidence that Katy
Springs should have anticipated the dangers that its company-made reel posed. See,
e.g., Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 550 (Tex. 1985) (evidence
that prior violent crimes had occurred at apartment complex raised fact issue on
foreseeability of criminal activity); Rosas v. Buddies Food Store, 518 S.W.2d 534,
8
538 (Tex. 1975) (harm was foreseeable in slip-and-fall case when evidence showed
that similar incidents had occurred in the past and defendant’s store manager was
continually trying to fix problem of water accumulation at the entrance); Pipgras v.
Hart, 832 S.W.2d 360, 364 (Tex. App.—Fort Worth 1992, writ denied); Lubri-
Lon, 681 S.W.2d at 803.
To the extent Katy Springs argues that expert testimony was necessary to
establish causation, we disagree. “[N]on-expert evidence alone is sufficient to
support a finding of causation in limited circumstances where both the occurrence
and conditions complained of are such that the general experience and common
sense of laypersons are sufficient to evaluate the conditions and whether they were
probably caused by the occurrence.” Guevara v. Ferrer, 247 S.W.3d 662, 668
(Tex. 2007); see also Kemp v. Havens, No. 14-05-00060-CV, 2006 WL 1140319,
at *3 (Tex. App.—Houston [14th Dist.] Apr. 27, 2006, no pet.) (mem. op.). Here,
prior to the accident, Favalora was able to do manual labor. He was able to
participate in athletic endeavors, such as volleyball, swimming, and working out.
He was essentially pain free. After the accident he suffered excruciating pain and
had to undergo spinal surgery that fused several of his vertebrae. Dr. Bartholomew,
Favalora’s neurosurgeon, stated that the surgery would permanently affect
Favalora’s ability to participate in certain physical activities. Favalora’s mobility
would be permanently limited. On this record, the jury could have concluded
without expert testimony that the injuries Favalora suffered were caused by Katy
Springs’ negligence. See Guevara, 247 S.W.3d at 669; Morgan v. Compugraphic
Corp., 675 S.W.2d 729, 732 (Tex. 1984).
Moreover, contrary to Katy Springs’ assertions, the jury’s finding on
causation is supported by expert medical evidence. Dr. Bartholomew testified by
video deposition. During his testimony the following exchange occurred:
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[Favalora’s counsel]: Do you believe that Joseph [Favalora], based on
what he’s told you, was injured at that time?
[Dr. Bartholomew]: Yes, sir.
[Favalora’s counsel]: Based on reasonable medical probability, what
is your opinion on what injuries Joseph sustained - - injuries or
conditions as a result of that incident [at Katy Springs]?
...
[Dr. Bartholomew]: As far as the cervical spine, I think he had an
aggravation of a preexisting condition in his neck which caused it to
become symptomatic.
This expert testimony is legally sufficient to support the trial court’s judgment.
See, e.g., Wal-Mart Stores Tex., LP v. Crosby, 295 S.W.3d 346, 352–53 (Tex.
App.—Dallas 2009, pet. denied) (doctor’s testimony that defendant’s negligence
resulted in an aggravation of a preexisting condition was legally sufficient to
support the trial court’s findings on causation).
Katy Springs also emphasizes that Dr. Bartholomew characterized
Favalora’s injuries as a worsening of a preexisting condition. It is axiomatic that a
tortfeasor takes a plaintiff as he finds him. Coates v. Whittington, 758 S.W.2d 749,
752 (Tex. 1988). If a latent condition does not cause pain or suffering, but that
condition plus an injury caused such pain, then the injury, and not the latent
condition, is the proximate cause. Thompson v. Quarles, 297 S.W.2d 321, 329
(Tex. Civ. App.—Galveston 1956, writ ref’d n.r.e.); see City of Hous. v. Celaya,
390 S.W.2d 542, 546 (Tex. Civ. App.—Houston 1965, writ ref’d n.r.e.). Here, as a
result of a car accident several years before the accident at Katy Springs, Favalora
suffered trauma to his spine that required surgery to fuse his C4-5 vertebrae.
Favalora testified that it took a long time to recover from the surgery. However, the
evidence indicates that he had in fact recovered. In the time leading up to the
incident, Favalora was able to work out and exercise. He taught swim lessons. He
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played volleyball. He worked for his now ex-girlfriend’s father building pools—a
manual-labor job that required heavy lifting. He testified that he was essentially
pain free at the time of the accident at Katy Springs. The jury could have found
from this evidence that Favalora’s prior injury was a latent condition that did not
cause him pain or suffering at the time of the accident. Therefore, the jury could
have concluded that the injury, and not the preexisting condition, was the
proximate cause of Favalora’s harm. See Thompson, 297 S.W.2d at 329.1
In sum, the evidence of causation furnishes some reasonable basis for fair-
minded people to reach the conclusion that Katy Springs’ negligence proximately
caused Favalora’s injuries. The evidence supporting the jury’s finding that
Favalora’s injury was caused by Katy Springs’ negligence is not so weak, and the
evidence to the contrary is not so overwhelming, that the finding should be set
aside. Therefore, the evidence was legally and factually sufficient to support the
jury’s finding that Katy Springs’ breach proximately caused Favalora’s injuries.
III. WHETHER FAVALORA’S CONDUCT WAS THE SOLE CAUSE OF HIS INJURIES
In its second issue, Katy Springs contends that Favalora was the sole cause
of his injuries. It asserts that had Favalora turned the lathe off before approaching
the reel, the incident would not have happened. Katy Springs further argues that
Favalora’s testimony was conflicting on this issue.
1
To the extent Katy Springs’ argument has any bearing on the jury’s award for past
medical expenses, the jury was instructed: “Do not include any amount for any condition that
existed before the occurrence in question, except to the extent, if any, that such other condition
was aggravated by any injuries that resulted from the occurrence in question.” The jury is
presumed to have followed the court’s instructions. Columbia Rio Grande Healthcare, L.P. v.
Hawley, 284 S.W.3d 851, 862 (Tex. 2009). Katy Springs did not argue and did not point to any
evidence in the record suggesting that the jury did not follow the instruction. Therefore, we
presume the jury took Favalora’s prior injury into account when it awarded damages for past
medical expenses.
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In an action by an employee against a nonsubscriber employer, “it is not a
defense that: (1) the employee was guilty of contributory negligence; (2) the
employee assumed the risk of injury or death; or (3) the injury or death was caused
by the negligence of a fellow employee.” Tex. Lab. Code Ann. § 406.033(a) (West
2015). Therefore, it does not matter if the plaintiff was negligent or helped cause
his own injury, unless his negligence was the sole cause of the injury. Hall v.
Timmons, 987 S.W.2d 248, 254–55 (Tex. App.—Beaumont 1999, no pet.).
It is the province of the jury to resolve the conflicts in the evidence. City of
Keller, 168 S.W.3d at 820. When pressed by Katy Springs’ counsel, Favalora made
clear that he did in fact turn the lathe off before he approached the reel. The jury
could have believed Favalora’s testimony and concluded that he was not a cause,
let alone the sole cause, of his injuries. Even if the jury did not believe that
Favalora turned the lathe off, the fact that this allegedly negligent act may have
contributed to Favalora’s injury does not avail Katy Springs. As discussed above,
the evidence indicates that Katy Springs bore at least some responsibility for the
incident—it knew of the potential hazard, it assigned a new employee to work on
the production line with unsafe machinery, and its failure to provide reasonably
safe machinery caused Favalora harm. At most, the evidence pointed out by Katy
Springs shows Favalora was guilty of contributory negligence, which is not a
defense available to nonsubscribers. See Tex. Lab. Code Ann. § 406.033(a). We
overrule Katy Springs’ second issue.
IV. SUFFICIENCY OF THE EVIDENCE TO SUPPORT JURY’S DAMAGE AWARDS
In its third issue, Katy Springs challenges the sufficiency of the evidence to
support the jury’s award of damages. In three sub-issues, Katy Springs contends:
(1) the evidence is legally insufficient to justify the award for past
medical expenses;
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(2) the evidence is legally insufficient to justify the award for past
and future mental anguish; and
(3) the evidence is legally and factually insufficient to justify the
award for past and future physical impairment.
We consider each sub-issue in turn.
A. Past Medical Expenses
In its first sub-issue, Katy Springs argues the evidence supporting the jury’s
award of past medical expenses is legally insufficient. Katy Springs’ argument
focuses on the existence of a causal nexus between the event sued upon and the
plaintiff’s injuries. Katy Springs claims that the only evidence of a compensable
injury consists of the medical records submitted by Favalora. According to Katy
Springs, the medical records are no substitute for expert testimony on causation
because laymen lack the requisite knowledge to understand the intricacies of neck
injuries and surgeries. Katy Springs does not claim on appeal that the medical
expenses were not reasonable and necessary, and, except to the extent Katy
Springs raises an issue regarding the erroneous admission of duplicative medical
bills (an issue we consider in Section V.D below), it has not challenged the amount
the jury awarded for past medical expenses. We therefore consider only whether a
causal nexus existed between the event sued upon and Favalora’s injuries.
A plaintiff can recover only for injuries caused by the event made the basis
of suit. Texarkana Mem’l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 839–40 (Tex.
1997). This causal nexus inquiry is “strictly referable to the damages portion of the
plaintiff’s action.” Morgan, 675 S.W.2d at 732. “Even if the defendant’s liability
has been established, proof of this causal nexus is necessary to ascertain the
amount of damages to which the plaintiff is entitled.” Id. The causal nexus must be
shown by competent evidence. Id. Lay testimony is generally adequate to prove
causation when general experience and common sense will enable a layman to
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determine, with reasonable probability, the causal relationship between the event
and the condition. Id. at 733. Lay testimony establishing a sequence of events
providing a strong, logically traceable connection between the event and the
condition is sufficient proof of causation. Id.
Applying these principles, we conclude there is some evidence to support
the jury’s award. The evidence shows that Favalora was in good health prior to
beginning his employment at Katy Springs. Favalora was able to do manual labor.
He was able to participate in athletic endeavors, such as volleyball, swimming, and
working out. He was essentially pain free. After several weeks of working at Katy
Springs, Favalora’s supervisors assigned him to work on a production line with the
company-made reel. During Favalora’s shift, wire escaped from the company-
made reel at a high velocity and struck Favalora in the chest. After the accident,
Favalora suffered excruciating pain and had to undergo spinal surgery that fused
several of his vertebrae. Dr. Bartholomew stated that the fusion surgery would
permanently affect Favalora’s ability to participate in certain physical activities
and that Favalora’s mobility would be permanently limited.
This evidence establishes a sequence of events from which the trier of fact
may infer that the wire escaping from the company-made reel caused Favalora to
suffer injury. And, as discussed in Section II.C above, there is ample evidence
supporting the jury’s finding that Katy Springs’ negligence aggravated Favalora’s
earlier injuries and caused him additional injuries. See Crosby, 295 S.W.3d at 353.
Therefore, we conclude there is some evidence in the record to support the trial
court’s award of damages for past medical expenses. See Morgan, 675 S.W.2d at
733. We overrule this sub-issue.
B. Past and Future Mental Anguish
In the second sub-issue, Katy Springs contends the evidence is legally
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insufficient to support the jury’s award for past and future mental anguish.
Question 2 of the trial court’s charge asked what sum of money would fairly and
reasonably compensate Favalora for his injures, if any, that resulted from the
occurrence in question. For mental anguish sustained in the past, the jury’s answer
was $150,000. For future mental anguish, the jury awarded Favalora $100,000.
1. Applicable Law
Under Texas law, mental anguish damages are recoverable in virtually all
personal-injury actions, including negligence actions. City of Tyler v. Likes, 962
S.W.2d 489, 495 (Tex. 1997). However, even when an occurrence is of the type for
which mental anguish damages are recoverable, evidence of the nature, duration,
and severity of the mental anguish is required. Hancock v. Variyam, 400 S.W.3d
59, 68 (Tex. 2013). An award of mental anguish damages will survive a legal
sufficiency challenge when the plaintiff introduces direct evidence of the nature,
duration, and severity of his mental anguish, thus establishing a substantial
disruption in the plaintiff’s routine. Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788,
797 (Tex. 2006); Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). The
absence of direct evidence, especially when it can be supplied or procured by the
plaintiff, justifies close judicial scrutiny of other evidence on this element of
damages. Woodruff, 901 S.W.2d at 444. In the absence of direct evidence, we
apply traditional “no evidence” standards to determine whether the record “reveals
any evidence of ‘a high degree of mental pain and distress’ that is ‘more than mere
worry, anxiety, vexation, embarrassment, or anger’ to support any award of
damages.” Id. In sum, “mental anguish is only compensable if it causes a
substantial disruption in daily routine or a high degree of mental pain and distress.”
Hancock, 400 S.W.3d at 68 (internal quotation and editorial marks omitted).
Direct evidence can take the form of the claimant’s own testimony or that of
15
a third party or expert witness. Anderson v. Long, 118 S.W.3d 806, 811 (Tex.
App.—Fort Worth 2003, no pet.). Mental anguish can be established through
witness testimony explaining how the injured party felt and how the injured party’s
life was disrupted. See Minn. Life Ins. Co. v. Vasquez, 133 S.W.3d 320, 324 (Tex.
App.—Corpus Christi 2004), rev’d on other grounds, 192 S.W.3d 774 (Tex. 2006).
However, “[s]imply because a [witness] says [the plaintiff] suffered mental
anguish does not constitute evidence of the nature, duration, and severity of any
mental anguish that is sufficient to show a substantial disruption of one’s daily
routine.” Gunn Infiniti, Inc. v. O’Byrne, 996 S.W.2d 854, 861 (Tex. 1999).
Mental anguish includes the mental sensation of pain resulting from such
emotions as grief, severe disappointment, indignation, wounded pride, shame,
despair, and public humiliation. Woodruff, 901 S.W.2d at 444; Tex. Mut. Ins. Co. v.
Morris, 287 S.W.3d 401, 425 (Tex. App.—Houston [14th Dist.] 2009), rev’d on
other grounds, 383 S.W.3d 146 (Tex. 2012).
Recovery is warranted in such cases where the plaintiff’s mental pain
has risen to such a level that it has rendered him or her incapable of
dealing with certain everyday activities. For instance, as a result of the
mental pain, the plaintiff suffers from a myriad of negative emotions;
some of these emotions may manifest themselves in such a way as to
make it difficult for the plaintiff to eat, sleep, work, socially interact,
or carry on any other activity which, until the time of the alleged
injury, he or she could accomplish on a day-to-day basis without
difficulty.
Dillard Dep’t Store, Inc. v. Silva, 106 S.W.3d 789, 800 (Tex. App.—Texarkana
2003) (internal citations omitted), aff’d as modified, 148 S.W.3d 370 (Tex. 2004).
There are no magic words to establish mental anguish; rather, courts can look at
the totality of the circumstances, as well as the words used. Comstock Silversmiths,
Inc. v. Carey, 894 S.W.2d 56, 58 (Tex. App.—San Antonio 1995, no writ).
16
A jury cannot automatically infer mental anguish once any physical injury is
sustained. Ontiveroas v. Lozano, No. 14-05-00294-CV, 2006 WL 1140374, at *2
(Tex. App.—Houston [14th Dist.] Apr. 29, 2006, no pet.) (mem. op.); see Gibbins
v. Berlin, 162 S.W.3d 335, 344 (Tex. App.—Fort Worth 2005, no pet.). “There
must, instead, be specific evidence upon which an award for mental anguish may
be upheld.” Ontiveroas, 2006 WL 1140374, at *2; see also id. at *2, n.4 (rejecting
as obiter dictum assertion from Kingham Messenger & Delivery Serv., Inc. v.
Daniels, 435 S.W.2d 270, 273 (Tex. Civ. App.—Houston [14th Dist.] 1968, no
writ), that “[m]ental anguish will be implied from illness, or injuries, accompanied
by physical pain, and it may arise from a sense of discomfort or inconvenience.”).
Although the fact of a physical injury does not alone support an award for mental
anguish damages, we can consider the traumatic nature of an injury as a factor in
deciding whether the award is supported by the evidence. See, e.g., Finley v. P.G.,
428 S.W.3d 229, 236–37 (Tex. App.—Houston [1st Dist.] 2014, no pet.);
SunBridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 251–52 (Tex. App.—
Texarkana 2005, no pet.).
To support an award for future mental anguish, a plaintiff must demonstrate
a reasonable probability that he would suffer compensable mental anguish in the
future. Adams v. YMCA of San Antonio, 265 S.W.3d 915, 917 (Tex. 2008). To
meet the reasonable probability rule, a plaintiff must (1) present evidence that, in
reasonable probability, he will suffer damages in the future and (2) prove the
probable reasonable amount of the future damages. N.N. v. Inst. for Rehab. &
Research, 234 S.W.3d 1, 10 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
2. Evidence Related to Favalora’s Mental Anguish
As an initial matter, our review of the evidence is limited. Because the jury
provided separate awards for physical pain and suffering, physical impairment, and
17
mental anguish, evidence related to Favalora’s physical pain and suffering and
physical impairment is not relevant to the jury’s award of mental anguish. See, e.g.,
Bowman v. Patel, No. 01-10-00811-CV, 2012 WL 524428, at *2 (Tex. App.—
Houston [1st Dist.] Feb. 16, 2012, no pet.) (mem. op.); Rice Food Mkts., Inc. v.
Williams, 47 S.W.3d 734, 739 (Tex. App.—Houston [1st Dist.] 2001, pet. denied)
(where jury made separate awards for pain and mental anguish, evidence of
plaintiff’s pain was not relevant to the defendant’s challenge of the award for
mental anguish).
Favalora testified regarding the personal struggles he faced after the injury.
Many of these struggles were associated with the financial effect of being
physically unable to work and incurring medical expenses. In response to a
question about his experiences during the first few weeks after the accident,
Favalora stated:
I’m not able to do anything. . . . I didn’t leave my apartment. I didn’t
do anything. First of all, I wasn’t making any money, so I was slowly
losing everything I owned by the day. Starts off slow and you sell a
piece of furniture here and there. I sold my car. You know, eventually
you get to the point where you’re going to Plato’s Closet selling your
clothes just to feed yourself and then eventually I lost my apartment.
He further testified:
I was living with my aunt. Thank God she was there to take me in
because at this point several months after the accident, I basically lost
everything. I think I touched on it earlier, I had to sell my car. I had to
- - I slowly started selling off pieces of my furniture, my TVs, all that
kind of stuff. Eventually I was literally left with a couch and a small
TV in my living room. And I could no longer afford to pay the rent.
After he relocated to Louisiana, Favalora started consulting with Dr. Bartholomew.
It became apparent to Favalora that he might have to have another surgery. When
discussing this possibility at trial, Favalora stated, “I was not happy about it.” In
18
response to a question about his outlook when he started visiting Dr. Bartholomew,
Favalora stated:
Well, I already knew I needed surgery. So at this point I was willing -
- I had lost the job at G-2 [Partners], lost my apartment once again and
lost all of my belongings. At that point I really looked at the surgery
in a different way that it was now to me more something that I had to
do to be able to get on with my life. Because it was just becoming like
a detour, like lingering. And the pain wasn’t going away, all of the
alternative treatments had failed.
Katie Vollmer, Favalora’s then-girlfriend, also testified about Favalora’s
emotional state. Vollmer described Favalora’s mental state prior to the accident as
“always smiling” and “always happy.” He was never stressed out even when the
couple had financial problems. Favalora was someone she could go to with a
problem. After the accident, however, Favalora was “not in a good place”
emotionally. Vollmer described Favalora as “quiet and sad” and “not himself.”
Vollmer noted that “it was so unlike him to just lay [sic] down or sit down.” “He
couldn’t get up and do the things he used to do, and I think that really got to him.”
On the subject of Favalora’s decision to have surgery, Vollmer testified that
Favalora was “very optimistic” about the surgery. He was “ready to just feel
better.” And after the surgery, “he was still, I mean, very optimistic about, you
know, the outcome and hoping, you know, it will finally make him feel better.”
Vollmer noted that Favalora was improving emotionally after the surgery. “He just
seems like he’s more up and going and ready to go do things.” He was “getting
back to himself, you know. He wants to move back here [to the Houston area] and
finish school, and he just seems to joke around more and just has more life about
him, you know.”
In contrast to Vollmer’s relatively optimistic perspective of Favalora’s
mental state, Dr. Bartholomew described Favalora as depressed and recommended
19
that Favalora seek psychiatric treatment. Responding to a question about how
Favalora has done since the fusion surgery, Dr. Bartholomew stated, “I recommend
- - physical therapy is common after a surgery, psychiatric because he’s obviously
depressed. And, unfortunately, he’s not done very well. He’s had continuing neck
pain and getting very depressed with it.” Dr. Bartholomew continued:
He’s depressed, obviously depressed. And we know that pain and
depression go hand in hand. And the longer people have pain, the
more likely they are to be depressed and the less likely they are to
recover without some treatment for their depression.
Explaining how he knew Favalora was depressed, Dr. Bartholomew stated, “I think
he even cried in the office. I mean, he tells me he’s depressed. You can just look at
him and talk to him and - - I’m pretty sure he cried in the office.” Later in his
testimony, the doctor added, “Yeah. I noted in my note of May 30th, 2013, ‘Even
almost crying in the office.’” Doctor Bartholomew explained that depression is
common for people experiencing chronic pain. Discussing Favalora’s future
prognosis, Doctor Bartholomew testified:
I think we need to get him, as I recommended, in physical therapy and
psychiatric treatment, otherwise he’s going to have a miserable future.
He’s already developed depression, basically crying in the office.
He’s told me he’s been to the emergency room, not because he had an
increase in his pain, just he couldn’t deal with it [the pain], so tired of
living with it [the pain]. So I think that, you know, he’s going to
become a long-term chronic pain patient. And especially with a
psychological overlay from the depression, it’s not a very bright
future. That’s why we need to get him into [physical] therapy and get
him to a psychiatrist.
3. Analysis
With regard to past mental anguish damages, the evidence does show that, as
a result of the accident, Favalora experienced some level of mental pain separate
and apart from the physical pain and physical impairment. Whereas before the
20
accident, Favalora was “always smiling” and “always happy,” after the accident,
he was “quiet and sad” and “very depressed.” This evidence shows that Favalora’s
attitude changed after the incident. Favalora also experienced relationship and
financial struggles after the accident. He and his girlfriend broke up. He was
compelled to move in with an aunt because he could no longer pay his bills. He
ultimately had to return to Louisiana as a result of the financial strain. The jury
could have inferred from Favalora’s attitudinal changes and the attendant hardships
that Favalora had suffered a high degree of mental pain and distress beyond mere
worry, vexation, embarrassment, or anger. Therefore, the evidence is legally
sufficient to support the jury’s finding of past mental anguish.
With regard to future mental anguish, the evidence does not demonstrate a
reasonable probability that Favalora will suffer compensable mental anguish in the
future. The severity of Favalora’s injury and the evidence of his mental pain
simply do not rise to the level of the severity of the injury and the evidence
propounded in other personal-injury cases. For instance, in Fifth Club, the plaintiff
had been severely beaten by a security guard at a club. 196 S.W.3d at 790. He
suffered a fractured skull when the guard slammed his head against a concrete wall
and struck him several times. Id. The plaintiff and his wife testified that he
continued to be depressed, humiliated, non-communicative, unable to sleep, and
angry. Id. at 797. He continued to have headaches, and his daily activities and
relationships with his wife and daughter continued to be detrimentally affected
nearly two years after the beating. Id. The plaintiff also presented evidence of the
severity of the intentional beating, including significant injuries to his head and
body, loss of consciousness, and multiple visits to the hospital. Id. This evidence
was legally sufficient to support an award for future mental anguish damages
because it showed the nature of the plaintiff’s mental anguish, its lasting duration,
21
and the severity of his injuries. Id. at 797–98.2
In contrast, the only evidence in the record concerning Favalora’s future
mental anguish—separate and apart from the evidence related to Favalora’s pain
and suffering and physical impairment—was Dr. Bartholomew’s testimony that
Favalora was “very depressed.” Although the words “very depressed” can imply
more than mere worry, anxiety, embarrassment, or anger, we must look at the
totality of the circumstances as well as the words used. See Carey, 894 S.W.2d at
58. Here, the doctor’s conclusions—that Favalora was very depressed and could
look forward to a bleak future unless he received psychiatric treatment—are not
specific evidence of the lasting nature, severity, and duration of Favalora’s future
mental anguish. See Gonzalez v. Temple-Inland Mortg. Corp., 28 S.W.3d 622, 626
(Tex. App.—San Antonio 2000, no pet.) (“Testimony in support of mental anguish
2
See also Adams, 265 S.W.3d at 917 (upholding award for future mental anguish when
evidence showed that child who was sexually assaulted was using denial as a coping mechanism,
would experience poor performance in school, wrote a letter expressing intense anger and
resentment, had angry outbursts, and expert testimony indicated that he would more than likely
face other emotional issues in the future); Finley, 428 S.W.3d at 235 (evidence was sufficient to
support future mental anguish award when evidence showed that cognitively disadvantaged 21-
year-old man who was sexually assaulted by pastor felt like a whore, could not sleep, had trouble
maintaining employment, and, in light of Fifth Club, the trier of fact could have considered the
traumatic nature of the assault); Inst. for Rehab. & Research, 234 S.W.3d at 18 (evidence was
sufficient to support award of future mental anguish damages when evidence showed brain-
injured plaintiff who was sexually assaulted by another brain-injured patient felt dirty, was
embarrassed, could not speak, feared going to sleep, apologized for not stopping the assault, was
incapable of treatment through traditional counseling or therapy, and, among other things, would
continue to remember the assault more in the future as her memory improved); Gen. Motors
Corp. v. Burry, 203 S.W.3d 514, 552–53 (Tex. App.—Fort Worth 2006, pet. denied) (upholding
award of future pain and mental anguish when evidence showed severely brain-damaged woman
cursed at her children, suffered a lapse in rehabilitation upon her discovery that she was home,
and was aware that she did not have the mind she once had, asking her husband, “When is the
nightmare going to end?”); Schindler Elevator Corp. v. Anderson, 78 S.W.3d 392, 412 (Tex.
App.—Houston [14th Dist.] 2001, judgment vacated w.r.m.) (upholding award for future mental
anguish when evidence indicated that child whose foot was “degloved” in an escalator would
have to undergo further surgeries that would, according to the psychologist, entail fear,
emotional problems, and pain), disapproved of on other grounds, Roberts v. Williamson, 111
S.W.3d 113 (Tex. 2003).
22
damages must provide specific details of the nature, duration, and severity of the
mental anguish. Conclusory statements are not sufficient.”). We conclude the
evidence is legally insufficient to support the jury’s award of future mental anguish
damages.
In sum, the evidence was legally sufficient to support the jury’s finding of
past mental anguish. However, the evidence was not sufficient to demonstrate a
reasonable probability that Favalora would suffer compensable mental anguish in
the future. Accordingly, we overrule Katy Springs’ sub-issue challenging the jury’s
finding of past mental anguish. We sustain Katy Springs’ sub-issue challenging the
jury’s finding of future mental anguish. See Lubbock Cnty. v. Strube, 953 S.W.2d
847, 857 (Tex. App.—Austin 1997, pet. denied).
C. Past and Future Physical Impairment
The jury awarded Favalora $19,000 for past physical impairment and
$100,000 for future physical impairment. Katy Springs contends the evidence was
legally and factually insufficient to support the jury’s finding of past and future
physical impairment.
Physical impairment, sometimes called loss of enjoyment of life,
encompasses the loss of the injured party’s former lifestyle. Enright v. Goodman
Distrib., Inc., 330 S.W.3d 392, 402 (Tex. App.—Houston [14th Dist.] 2010, no
pet.). To receive physical impairment damages, the plaintiff must prove that the
effect of his physical impairment extends beyond any impediment to his earning
capacity and beyond any pain and suffering to the extent that it produces a separate
and distinct loss that is substantial and for which he should be compensated.
Schindler Elevator, 78 S.W.3d at 412. That is, the plaintiff must show that (1) he
incurred injuries that are distinct from, or extend beyond, injuries compensable as
pain and suffering, loss of earning capacity, or other damage elements and (2)
23
these distinct injuries have had a “substantial” effect. Burry, 203 S.W.3d at 554–
55. If other damage elements such as pain, suffering, mental anguish, and
disfigurement are submitted, then there is little left for which to compensate under
the category of physical impairment other than loss of enjoyment of life. Golden
Eagle, 116 S.W.3d at 772. Awards for physical impairment do not always require
egregious injuries. Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817,
824 (Tex. App.—Houston [1st Dist.] 1999, pet. denied).
Here, Favalora testified that after his injury he could not help care for his ex-
girlfriend’s daughter. He explained that he could no longer work out or engage in
other physical activities he had enjoyed in the past. Dr. Bartholomew testified that
as a result of the double-fusion surgery, Favalora would lose between fifteen and
thirty percent of the range of motion in his neck. According to the doctor, this loss
of range of motion would make simple tasks, such as descending a staircase,
difficult because Favalora will not be able to move his head enough to see his feet.
Additionally, Favalora will be unable to lift heavy weights, which will necessarily
curtail his ability to work out, an activity he enjoyed before the accident. After
reviewing the entire record and given the lack of evidence to the contrary, we
conclude this evidence is legally and factually sufficient to support the jury’s
finding of past and future physical impairment. See, e.g., Plainview Motels, Inc. v.
Reynolds, 127 S.W.3d 21, 39 (Tex. App.—Tyler 2003, pet. denied) (upholding
award for future physical impairment where evidence showed plaintiff’s injuries
impeded his ability to sleep, run, bicycle, participate in triathlons, and play with his
children).3
3
See also City of Laredo v. Limon, No. 04-12-00616-CV, 2013 WL 5948129, at *5 (Tex.
App.—San Antonio Nov. 6, 2013, no pet.) (mem. op.) (upholding award of past and future
physical impairment where evidence showed plaintiff could not stand for more than one-half
hour or sit for more than two or three hours, and she could no longer dance or garden); Bell v.
24
We sustain Katy Springs’ sub-issue relating future mental anguish damages.
We overrule the remaining sub-issues in Katy Springs’ third issue.
V. ADMISSION OF MEDICAL BILLING AFFIDAVITS
In its fourth issue, which pertains to the trial court’s admission of medical
billing affidavits, Katy Springs raises the following sub-issues:
(1) The trial court erroneously admitted evidence of the full amounts
charged by Favalora’s medical providers rather than the
discounted amounts the medical providers received from
MedStar Funding.
(2) The affidavits submitted by Favalora do not comply with section
18.001 of the Texas Civil Practice and Remedies Code.
(3) The trial court erred in refusing to allow Katy Springs to conduct
Castro, No. 04-11-00927-CV, 2012 WL 5874322, at *3 (Tex. App.—San Antonio Nov. 21,
2012, no pet.) (mem. op.) (upholding award for future physical impairment where evidence
showed plaintiff would be immobilized for weeks after surgery, would suffer a ten percent total
body impairment, and would be restricted from lifting anything heavier than 10-15 pounds);
Belford v. Walsh, No. 14-09-00825-CV, 2011 WL 3447482, at *9 (Tex. App.—Houston [14th
Dist.] Aug. 9, 2011, no pet.) (mem. op.) (upholding finding of zero damages for future physical
impairment when one expert opined that plaintiff’s lumbar surgery resolved problems with his
legs and the cervical surgery resolved problems with arms); Rentech Steel, L.L.C. v. Teel, 299
S.W.3d 155, 166 (Tex. App.—Eastland 2009, pet. dism’d) (upholding award for physical
impairment where evidence showed plaintiff whose hands were “degloved” would not be able to
open a water bottle, button his shirt, write, use a computer with more than two fingers, or throw
or catch a baseball or football); J. Wigglesworth Co. v. Peeples, 985 S.W.2d 659, 666 (Tex.
App.—Fort Worth 1999, pet. denied) (upholding award for physical impairment where evidence
showed plaintiff would not be able to do activities as quickly and would suffer the following day;
plaintiff testified that he could not participate in motocross, work on his car, or do anything
strenuous, including his job as an electrician); Peter v. Ogden Ground Servs. Inc., 915 S.W.2d
648, 650 (Tex. App.—Houston [14th Dist.] 1996, no writ) (upholding finding of zero damages
for past and future physical impairment where evidence indicated that plaintiff’s prognosis was
“very good” if he had surgery, and plaintiff failed to produce evidence that he would be impaired
following surgery); Dodge v. Watts, 876 S.W.2d 542, 545 (Tex. App.—Amarillo 1994, no writ)
(op. on reh’g) (upholding award when evidence showed plaintiff could no longer pick up her
grandchildren or clean her house); Allen v. Whisenhunt, 603 S.W.2d 242, 244 (Tex. App.—
Houston [14th Dist.] 1980, writ dism’d) (upholding award for physical impairment where
evidence showed plaintiff could no longer mow the lawn, play basketball, or engage in manual
labor, thus affecting his future employment prospects as well as his ability to engage in activities
for his own enjoyment).
25
pretrial discovery for the purpose ascertaining the accuracy of the
amounts stated in the billing records.
(4) The trial court erred in allowing Favalora to submit duplicative
evidence of his medical bills.
(5) The trial court erred in striking Katy Springs’ section 18.001
counter-affidavit.
We consider each of Katy Springs’ sub-issues in turn.
A. Medical Bills “Actually Paid or Incurred”
During the pretrial and trial stages of this case, the parties engaged in an
ongoing dispute concerning the evidence of Favalora’s medical bills. During the
discovery process, Katy Springs learned that several of Favalora’s medical
providers had sold, at a discount, accounts receivable to MedStar Funding, a
company engaged in the business of accounts receivable financing, also known as
“factoring.”4 Katy Springs now claims the trial court erred in admitting invoices
showing the full amounts charged by the medical providers rather than the amounts
the medical providers received in return for selling their accounts receivable to
MedStar. Citing section 41.0105 of the Civil Practice and Remedies Code, the
Texas Supreme Court’s decision in Haygood v. De Escabedo, 356 S.W.3d 390
(Tex. 2011), and this court’s decision in Metropolitan Transit Authority v.
McChristian, 449 S.W.3d 846 (Tex. App.—Houston [14th Dist.] 2014, no pet.),
Katy Springs contends that a plaintiff’s recovery is limited to the amount that the
4
Factoring is a process by which a business sells to another business (the “factor”), at a
discount, its right to collect money before the money is paid. Hous. Lighting & Power Co. v. City
of Wharton, 101 S.W.3d 633, 636 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). Factoring
is a financing tool that reduces the amount of working capital a business needs by reducing the
delay between the time of sale and the receipt of payment. Id.; see also Plotkin v. Joekel, 304
S.W.3d 455, 465 n.3 (Tex. App.—Houston [1st Dist.] 2009, pet. denied); Al Gailani v. Riyad
Bank Hous. Agency, 22 S.W.3d 560, 565 (Tex. App.—El Paso 2000) (citing Tex. Bus. & Com.
Code Ann. § 9.502 cmt. 2 (Vernon 1991)), rev’d on other grounds, 61 S.W.3d 353 (Tex. 2001);
Note, Policing Accounts Receivable & Inventory Under Modern Factor’s Legislation, 101 U. Pa.
L. Rev. 392, 392 (1952) (explaining typical factoring scenarios).
26
medical providers have a right to be paid, which, in this case, is the amount for
which MedStar purchased the accounts receivable from the providers.
In response, Favalora argues that section 41.0105, Haygood, and
McChristian have no effect on his recovery. Favalora posits that he incurred the
full amount of expenses billed by his medical providers because MedStar, which
purchased the accounts receivable, is legally entitled to recover the full amount of
the charges billed, and he is contractually obligated to pay the full amount to
MedStar. Favalora contends MedStar is a contractual assignee that stands in the
shoes of its assignor—in this case, the medical providers.
Section 41.0105 provides: “In addition to any other limitation under law,
recovery of medical or health care expenses incurred is limited to the amount
actually paid or incurred by or on behalf of the claimant.” Tex. Civ. Prac. & Rem.
Code Ann. § 41.0105 (West 2015). The Texas Supreme Court construed this
provision in Haygood and held that “this statute limits recovery, and consequently
the evidence at trial, to expenses that the [medical] provider has a legal right to be
paid.” 356 S.W.3d at 391. In Haygood, a personal-injury case arising from a car
accident, twelve health care providers billed Haygood a total of $110,069.12.
Because Haygood was covered by Medicare Part B and pursuant to federal law
prohibiting providers from charging patients more than Medicare deemed
reasonable, Haygood’s health care providers adjusted their bills downward, leaving
a total amount due of $27,739.43. The trial court allowed Haygood to introduce
evidence of the full amounts billed by his providers, and the jury awarded the full
amounts as past medical expenses. The court of appeals reversed. Id. at 392. In
affirming the court of appeals, the Texas Supreme Court first concluded that the
collateral source rule, which precludes a reduction in a tortfeasor’s liability
because of benefits received by the plaintiff from someone else, does not allow a
27
plaintiff to recover medical expenses that a health care provider is not entitled to
charge. Id. at 396. Addressing section 41.0105, the court first reasoned that
“actually paid and incurred” means “expenses that have been or will be paid, and
excludes the difference between such amount and charges the [medical] service
provider bills but has no right to be paid.” Id. at 397. Accordingly, the court held
that section 41.0105 “limits a claimant’s recovery of medical expenses to those
which have been or must be paid by or for the claimant.” Id. at 398. The court next
considered whether the evidence showing the full amounts billed by the health care
providers was nonetheless admissible. Because a claimant cannot recover medical
expenses that the medical provider is not entitled to be paid, the court reasoned that
evidence of such medical expenses is irrelevant to the issue of damages and that
the probative value of the evidence is substantially outweighed by the confusion it
is likely to generate. Id. Therefore, only evidence of recoverable medical expenses
is admissible at trial, where “recoverable medical expenses” means those expenses
that “have been or must be paid by or for the claimant.” Id. at 398–399.
The factual situation before us does not fit neatly into section 41.0105 or the
Haygood court’s ruling. However, the Dallas Court of Appeals’ decision in Big
Bird Tree Service v. Gallegos, 365 S.W.3d 173 (Tex. App.—Dallas 2012, pet.
denied), is informative. In Gallegos, an indigent plaintiff received valuable medical
services from Parkland Hospital free of charge. 365 S.W.3d at 175. To prove his
reasonable and necessary medical expenses, the plaintiff relied on affidavits with
attached billing records from UT Southwestern and Parkland hospitals. The
amounts charged totaled $67,699.41 and $16,659.50 respectively. The jury
awarded the plaintiff damages, including those incurred at Parkland. The defendant
argued on appeal that the evidence was legally and factually insufficient to support
the award of expenses for services received at Parkland because the plaintiff
28
received the services free of charge. Id. In an offer of proof, Parkland’s custodian
of records testified that if Parkland discovered that the patient was able to pay for
the services, then the patient would be billed for the services. Id. at 175–76. The
evidence therefore indicated that the plaintiff would be required to pay if he were
to obtain a recovery in a lawsuit or otherwise acquire the funds.
The Dallas court distinguished Haygood. First, the court noted that there was
no evidence of any contract that would have prohibited the hospitals from charging
the plaintiff for the full value of the services rendered. Id. at 177. Second, the court
emphasized that the plaintiff remained liable for the services rendered if he were to
recover the funds by other means. Id. The court then concluded that section
41.0105 did not preclude the plaintiff from recovering. Id.
The facts of this case are similar to those of Gallegos. Favalora is uninsured
and received valuable medical services. At the time of trial, Favalora had not paid
for those services. He testified to owing in excess of $200,000 in medical
expenses. The evidence attached to the parties’ respective motions on this issue,
which the trial court considered in rendering its decision, shows that Favalora
entered into contracts with several of his health care providers. Pursuant to these
contracts, Favalora assigned to the health care providers his interest in any
proceeds that might be recovered as a result of his pending lawsuit. Favalora also
granted the providers a security interest in his potential tort recovery. MedStar then
purchased, at a discount, the health care providers’ accounts receivable, including
the providers’ respective interests in the potential tort recovery and the liens on
those interests. Just as in Gallegos, there is no evidence of any contract that
prohibited the health care providers from charging Favalora the full value of the
services rendered. Nor is there any evidence of a contract prohibiting MedStar
from collecting the full value of the services rendered. To the contrary, the
29
evidence considered by the trial court suggests that Favalora remained liable for
the full value of the services rendered.
The fact that the indigent plaintiff in Gallegos received the services free of
charge from a charitable organization does not change our conclusion that the
objected-to evidence was admissible. The evidence here, as in Gallegos, indicates
that the expenses must be paid by Favalora. Therefore, we cannot conclude that
MedStar, by way of the medical providers, was not entitled to recover the full
value of the services rendered. See Gallegos, 365 S.W.3d at 177; see also Cash v.
Celadon Trucking Servs., Inc., No. 4:13-CV-461, 2014 WL 1381394, at *2 (S.D.
Tex. Apr. 7, 2014) (unpublished memorandum and order; finding erroneous
defendant’s interpretation of section 41.0105 that would limit plaintiff’s recovery
to amount paid by factor). Consequently, the evidence showing the full value of the
services received by Favalora was admissible. See Haygood, 356 S.W.3d at 399.
Katy Springs has pointed out the following sentence from this court’s
opinion in McChristian: “A tortfeasor is not liable for medical expenses that the
claimant is not required to pay to the provider because allowing such a recovery
would bestow a windfall.” 449 S.W.3d at 852 (emphasis added); see also
Haygood, 356 S.W.3d at 397 (“[A] tortfeasor is not liable to a health care provider
or its patients for medical expenses the patients were not required to pay the
provider.” (emphasis added)). Focusing on the phrase “pay to the provider,” Katy
Springs reasons that if the medical provider is no longer entitled to be paid, then
the claimant cannot recover the full amount of the medical expenses from the
tortfeasor but must settle for the discounted amount received by the provider.
According to Katy Springs, because Favalora’s medical providers were paid, albeit
by a third party that purchased the right to collect the outstanding accounts
receivable, Favalora cannot recover the full amount from Katy Springs. We reject
30
Katy Springs’ position, and we conclude that its reliance on Haygood and
McChristian is misplaced because those cases involved distinguishable
circumstances.
The circumstances here involve a factoring arrangement; Haygood and
McChristian did not. Haygood addressed section 41.0105’s applicability to
expenses for necessary medical care charged by health care providers who set
charges at a higher level but agreed to be reimbursed by insurers at a lower level
deemed to be reasonable based on “customary charges for similar services and
prevailing charges in the same locality for similar services.” Haygood, 356 S.W.3d
at 392 & n.7. McChristian addressed section 41.0105’s applicability to expenses
for necessary medical care that were provided to an uninsured plaintiff.
McChristian, 449 S.W.3d at 854. “As the supreme court explained, section
41.0105 addresses the difficulty in determining reasonable expenses for necessary
medical care when ‘[h]ealth care providers set charges they maintain are
reasonable while agreeing to reimbursement at much lower rates determined by
insurers to be reasonable, resulting in great disparities between amounts billed and
payments accepted.’” Id. (quoting Haygood, 356 S.W.3d at 391). This case does
not require us to address the disparity between higher charges set by medical
providers and lower “reasonable” reimbursement rates set by insurers.
This situation, in contrast, involves medical expenses that Favalora is
contractually obligated to pay in full. MedStar is the contractual assignee of
Favalora’s medical providers. Katy Springs’ position ignores the longstanding
principle that “an assignee under Texas common law stands in the shoes of his
assignor.” See Sw. Bell Tel. Co. v. Marketing on Hold Inc., 308 S.W.3d 909, 920
(Tex. 2010). In so doing, the assignee “receives the full rights of the assignor.”
Jackson v. Thweatt, 883 S.W.2d 171, 174 (Tex. 1994). Because MedStar holds
31
contractually valid assignments, MedStar “steps into the shoes” of the medical
providers and is considered under the law to “have the same ability to pursue the
claims” of the medical providers. See Marketing on Hold, 308 S.W.3d at 916.
Therefore, under Texas law and by virtue of the assignments, MedStar and the
medical providers are one and the same for purposes of determining the
admissibility of evidence under section 41.0105 and Haygood.
In a factoring case, where the record indicates that the claimant remains
liable for the amounts originally billed by the medical provider, such amounts are
recoverable medical expenses under section 41.0105, and evidence showing the
amounts billed by the medical provider is admissible. Accordingly, we overrule
this sub-issue.
B. Compliance with section 18.001, Civil Practice & Remedies Code
Katy Springs next contends Favalora’s Exhibits 39, 41, 43, 49, 51, 52, 53,
and 60 do not comply with section 18.001 of the Civil Practice and Remedies
Code.
Section 18.001 is “purely procedural, providing for the use of affidavits to
streamline proof of the reasonableness and necessity of medical expenses.”
Haygood, 356 S.W.3d at 397.
[A]n affidavit that the amount a person charged for a service was
reasonable at the time and place that the service was provided and that
the service was necessary is sufficient evidence to support a finding of
fact by judge or jury that the amount charged was reasonable or that
the service was necessary.
Tex. Civ. Prac. & Rem. Code Ann. § 18.001(b) (West 2015).
The affidavit must:
(1) be taken before an officer with authority to administer oaths;
(2) be made by:
32
(A) the person who provided the service; or
(B) the person in charge of records showing the service provided
and charge made; and
(3) include an itemized statement of the service and charge.
Id. § 18.001(c). In other words, to comply with section 18.001, an affidavit must:
(1) state that the amount charged was reasonable; (2) state that the service was
necessary; (3) be taken before an officer with authority to administer oaths; (4) be
made by the provider or the person in charge of the records showing the service
provided; and (5) include an itemized statement of the service and charge. See id. §
18.001; see also id. § 18.002 (West 2015) (sample affidavit forms).
Here, the challenged exhibits contain affidavits that comply with all of the
section 18.001 requirements. However, Katy Springs has emphasized that Dan
Christensen, the person who signed the MedStar affidavit, which the trial court
admitted as Exhibit 60, was not a “medical provider” and therefore was not
qualified to testify regarding the reasonableness of the charges. Katy Springs
mischaracterizes the text of section 18.001, which contains the disjunctive “or”
between the phrase, “the person who provided the service,” and the phrase, “the
person in charge of records showing the service provided and charge made.” Katy
Springs has not identified, and we have not found in the record, any evidence
suggesting that Christensen is not the person in charge of the records showing the
services provided. In fact, the evidence considered by the court in making its
evidentiary rulings suggests the opposite. The contracts between MedStar and the
service providers explicitly made MedStar the custodian of the pertinent records.
We overrule this sub-issue.
C. Refusal to Permit Pretrial Discovery on MedStar
Katy Springs contends the trial court erred in “refusing to allow pretrial
33
discovery necessary for [it] to verify the accuracy of amounts stated in medical
billing affidavits submitted by [Favalora.]” This statement constitutes the entirety
of Katy Springs’ argument regarding the trial court’s decision on Katy Springs’
request for additional discovery. Katy Springs has not cited to any legal authority
for the appropriate standards on discovery error. Nor has it cited to authority or
explained how the trial court’s error, if any, was harmful. Accordingly, we
conclude this issue is inadequately briefed. See Tex. R. App. P. 38.1; Canton-
Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 931–32 (Tex. App.—Houston
[14th Dist.] 2008, no pet.). By failing to adequately brief this sub-issue, Katy
Springs has waived it on appeal. We overrule this sub-issue.
D. Admission of Duplicative Affidavits and Medical Bills
Katy Springs contends the trial court erred by admitting multiple affidavits
for the same medical expenses. Specifically, Katy Springs claims that some
charges are covered by both an affidavit from the medical provider and the
affidavit submitted by MedStar’s Christensen. Our review of the record confirms
Katy Springs’ claim that some of the medical bills were submitted twice. For
example, in Exhibit 39, Nicole Lilly testified by affidavit on behalf of TOPS
Surgical Hospital that Favalora still owed $11,482.97. Lilly attached an itemized
bill to her affidavit. Christensen attached the same itemized bill to the MedStar
affidavit, which was admitted as Exhibit 60. We conclude, however, that the trial
court’s error, if any, was harmless.
The admission and exclusion of evidence are within the sound discretion of
the trial court. Bayer Corp. v. DX Terminals, Ltd., 214 S.W.3d 586, 609 (Tex.
App.—Houston [14th Dist.] 2006, pet. denied). The complaining party must show
that the trial court erred and that the error probably resulted in an improper
judgment, which usually requires a showing that the judgment turned on the
34
challenged evidence. Id.
The evidence in this case indicates that the jury did not consider the
duplicated bills when it determined the amount of past medical expenses to award
Favalora. The jury awarded Favalora $204,627.02 for past medical expenses. The
following table shows the total amounts Favalora owed for medical services and
excludes the amount attested to by Christensen in the MedStar affidavit:
Exhibit No. Affiant & Medical Provider Amount
24 Pamela Rodriguez, Phoenix EMS, Inc. $525.00
26 Robert Cotie, Memorial Hermann Katy Hospital $15,902.25
27 Esther Bertschi, ACS Primary Care Physicians $890.00
29 Beatriz Hernandez, Scott Shepherd, M.D. $939.00
31 Samantha Peres, One Step Diagnostic $6,180.00
33 Theresa Gonzalez, Omar D. Vidal, M.D., PLLC $3,138.00
35 Sergio Pachuca, Memorial MRI & Diagnostic $3,200.00
37 Char Butler, Centurion $4,850.00
39 Nichole Lilley, TOPS Surgical Hospital $11,482.97
41[A] Nanda Wright, KSF Orthopaedic Center $373.00
41B Nanda Wright, KSF Orthopaedic Center $350.00
41C Nanda Wright, KSF Orthopaedic Center $175.00
41D Nanda Wright, KSF Orthopaedic Center $289.00
41E Nanda Wright, KSF Orthopaedic Center $740.00
41F Nanda Wright, KSF Orthopaedic Center $175.00
43 Nancy Sattin, South Loop MRI LP $2,973.00
45 Esmerelda Reguigure, Dr. David Wyatt, M.D. $573.00
49 Tina Doss, Bradley J. Bartholomew, M.D. $30,749.00
51 Angie Maher, Omega Hospital $110,137.00
52 Anthony Gettys, Parish Anesthesia Ambulatory, LLC $3,250.00
53 Warren Roesch, Warren Roesch, R.N., F.A. $5,720.80
55 Sandra Lee, Bayou Anesthesia $1,085.00
5
56[A] Jill Bosch, Walgreens Pharmacy $1,376.92
56[B] Jill Bosch, Walgreens Pharmacy $1,260.60
5
Exhibit 56 contains multiple affidavits with attached documentation showing the price
Favalora paid for prescriptions. Katy Springs has not asserted any challenge to these affidavits or
the amounts charged for the prescriptions.
35
56[C] Kate Bates, Target Pharmacy $37.99
56[D] Heather Becker, CVS Pharmacy $506.60
56[E]6 Heather Becker, CVS Pharmacy —
56[F]7 Heather Becker, CVS Pharmacy —
56[G] Pamela T. Caro, CVS Pharmacy $421.20
56[H]8 Katherine Sayles, QVL Pharmacy $601.26
TOTAL $207,901.59
Based on our calculations, the evidence was sufficient to support an award
of $207,901.59. The jury awarded only $204,627.02. Because the jury’s damages
award is supported by a calculation and evidence not related to the medical bills
attached to Christensen’s affidavit, we conclude the trial court’s error, if any, in
admitting duplicative medical bills was harmless. See Tex. R. App. P. 44.1; Bayer
Corp., 214 S.W.3d at 609; Gulftide Gas Corp. v. Cox, 699 S.W.2d 239, 244 (Tex.
App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.). Accordingly, we overrule this
sub-issue.
E. Counter-affidavit of Dr. Steiner
In footnote five of its appellant’s brief, buried within its assertions about the
trial court’s failure to permit additional discovery, Katy Springs states:
By filing a CPRC 18.001 counter-affidavit, the non-offering party can
prevent the offering party’s affidavits of reasonableness and necessity
from being used as evidence and force the offering party to prove
reasonableness and necessity by expert testimony. Hong [v. Bennett],
209 S.W.3d [795,] 801 [(Tex. App.—Fort Worth 2006, no pet.)].
Realizing the trial court was not going to allow Defendant the
discovery necessary to investigate the reasonableness and necessity of
6
The charges in Exhibit 56[E] are identical to the charges in Exhibit 56[D].
7
The charges in Exhibit 56[F] are identical to the charges in Exhibit 56[D].
8
Exhibit 56[H] was supported by three prescription billing reports. The second report
contained charges that occurred before the accident. The first and third reports were generated on
different dates but showed identical charges. Therefore, we counted only the first billing report.
36
all the medical services provided to Plaintiff [Favalora], Defendant
[Katy Springs] nevertheless filed on October 4, 2013, a CPRC 18.001
controverting affidavit of Martin Roth Steiner, MD challenging the
necessity of the surgery performed on Plaintiff by Dr. Bartholomew.
(SCR-Vol. 13, pg. 5139). Plaintiff filed a Motion to Strike Counter-
Affidavits of Martin Steiner, M.D. on November 5, 2013. (SCR-Vo.
13, pg. 5253). The court granted Plaintiff’s motion. (RR-Vol. 5, pgs.
131:19-135:22). This issue was preserved for appeal as it was raised
in Defendant’s Motion for Judgment Notwithstanding the Verdict.
(CR-Vol. 1, pg. 110).
To the extent Katy Springs raises an issue here, it is inadequately briefed.
Katy Springs has the burden to present and discuss its assertions of error in
compliance with the appellate briefing rules. Cruz v. Van Sickle, 452 S.W.3d 503,
511 (Tex. App.—Dallas 2014, pet. filed). “It is not this court’s duty to review the
record, research the law, and then fashion a legal argument for appellant when [it]
has failed to do so.” Canton-Carter, 271 S.W.3d at 931–32; see Cruz, 452 S.W.3d
at 511 (“We have no duty, or even right, to perform an independent review of the
record and applicable law to determine whether there was error.”). Katy Springs
did not cite any legal authority or provide any analysis applying the appropriate
legal authority to the facts of its case in such a manner as to demonstrate the trial
court committed reversible error when it excluded the counter-affidavit. See
Canton-Carter, 271 S.W.3d at 931.
Even if this issue were adequately briefed, Katy Springs waived any error
for appellate review. If a party does not challenge all possible grounds for a trial
court’s ruling that sustains an objection to evidence, then the party waives any
error for appellate review. See Gulley v. Davis, 321 S.W.3d 213, 218 (Tex. App.—
Houston [1st Dist.] 2010, pet. denied). In his motion to strike the counter-affidavit,
Favalora challenged Dr. Steiner’s qualifications and argued that the affidavit was
conclusory. At trial, when the parties were discussing admission of the counter-
37
affidavit, Favalora’s counsel emphasized Dr. Steiner’s lack of qualifications. The
trial court granted Favalora’s request to strike the counter-affidavit but did not
explicitly state the grounds on which it did so. Katy Springs has not addressed on
appeal either of Favalora’s contentions below—i.e., that the counter-affidavit is
conclusory or that Dr. Steiner is not qualified. Because Katy Springs failed to
challenge on appeal all the possible grounds for the trial court’s ruling, Katy
Springs has waived error with respect to the trial court’s striking of Dr. Steiner’s
counter-affidavit. See id. Accordingly, we overrule this sub-issue.
Having overruled each of the sub-issues, we overrule Katy Springs’ fourth
issue in its entirety.
VI. IMPROPER JURY ARGUMENT
In its fifth issue, Katy Springs complains that Favalora’s counsel’s jury
argument was improper.
Katy Springs first argues that counsel’s statements calling for the jury to
punish the defendant, and ostensibly to award punitive damages, were improper.
Katy Springs identifies two instances of this type of argument. In the first,
Favalora’s counsel stated, “You have to decide whether that’s what we want in our
workplace, especially industrial - - ”. Katy Springs objected, and the court
sustained the objection. Favalora’s counsel then changed the subject of his
argument. In the second instance, Favalora’s counsel stated:
Imagine yourself walking past the Katy Spring factory and you look
in the window and you see a worker having trouble with a dangerous
machinery. You watch his supervisor tell his supervisor the worker is
not picking it up. You watch the shop superintendent see the same
thing. Imagine you see the coil come out, before the time it happened
with Joseph, in a dangerous way. Imagine that you see Joseph in a
meeting with his boss, telling him, I understand what you’re saying.
I’m trying. I don’t get it. Imagine that the boss says, Do it, or you’re
38
fired. If you’ve got to run to the bathroom, you run to the bathroom
and back. Imagine those things are true. What do you do? Do you give
him a pass and walk past the door? Do you knock on the door lightly
and ask for a donation, hoping that they learned something from it? Or
do you kick in the door and you take it, hoping that it acts as a symbol
for what they have done?
Katy Springs complains about the last sentence referring to “kick[ing] in the door.”
At trial, Katy Springs objected to these statements and asked the trial judge for a
limiting instruction. The trial court complied, sustaining the objection and
instructing the jury as requested.
Katy Springs also complains about argument referring to the lack of
evidence of Favalora’s drug abuse problems. The thrust of the argument here is
that Katy Springs had evidence of Favalora’s drug abuse; the court just failed to
admit it. Katy Springs objected. Then, in violation of a motion in limine and in
front of the jury, Katy Springs’ counsel referred to the heroin evidence that the trial
court had previously excluded. The court then held a bench conference off the
record. After the bench conference, Favalora’s counsel continued his argument but
did not mention the drug issue again.
Finally, Katy Springs complains about Favalora’s counsel’s reference to a
trial setting that took place several months before the trial. Katy Springs argues
that this gave the jury the impression another trial had taken place. The reference
occurred in close temporal proximity to the argument regarding Favalora’s drug
problems. An off-the-record conference was held after Katy Springs’ counsel
objected. After the conference, Favalora’s counsel continued his argument but did
not mention the previous trial setting.
On appeal, Katy Springs contends only that the complained-of jury
arguments were incurable. A jury argument is “incurable” when it is so prejudicial
39
or inflammatory that an instruction to disregard cannot eliminate the harm. Clark v.
Bres, 217 S.W.3d 501, 509 (Tex. App.—Houston [14th Dist.] 2006, pet denied).
To show an argument is incurable, the complainant must prove: (1) an improper
argument was made; (2) that was not invited or provoked; (3) that was not curable
by an instruction, a prompt withdrawal of the statement, or a reprimand by the
trial; and (4) that by its nature, degree, and extent, constituted reversibly harmful
error based on an examination of the entire record to determine the argument’s
probably effect on a material finding. Id. We will consider factors such as whether
the argument was repeated or abandoned and whether there was cumulative error.
Id. The complainant must show the probability that the improper argument caused
harm is greater than the probability that the verdict was grounded on proper
proceedings and evidence. Id.
Improper jury argument results in incurable harm only in rare instances,
such as an appeal to racial prejudice, calling someone a liar or a fraud, or by
making an unsupported charge of perjury. UMLIC VP LLC, v. T & M Sales &
Envtl. Sys., Inc., 176 S.W.3d 595, 617 (Tex. App.—Corpus Christi 2005, pet.
denied). The argument must be so inflammatory as to strike at the heart of the
adversarial process, must appeal to fundamental prejudices, or be sufficiently
prejudicial to cause a juror of ordinary intelligence to agree to a verdict contrary to
one which he would have agreed to but for the argument. Dunn v. Bank-Tec S., 134
S.W.3d 315, 323 (Tex. App.—Amarillo 2003, no pet.). For instance, a jury
argument comparing a nursing home to the Nazis who experimented on and killed
humans was incurable. Living Ctrs. of Tex., Inc. v. Peñalver, 256 S.W.3d 678,
681–82 (Tex. 2008). A jury argument stating that the plaintiff, who was from south
Asia, had committed “judicial terrorism” was incurable when coupled with an
unsupported reference to “cultural issues” in the case. Showbiz Multimedia, LLC v.
40
Mountain States Mortg. Ctrs., Inc., 303 S.W.3d 769, 771–72 (Tex. App.—Houston
[1st Dist.] 2009, no pet.). On the other hand, a jury argument comparing the
defendants in a negligence case to onlookers who did nothing during the savage
beating of a slave was not incurable. 4Front Eng’red Solutions, Inc. v. Rosales, —
S.W.3d —, No. 13-13-00655-CV, 2015 WL 1182462, at *25–26 (Tex. App.—
Corpus Christi Mar. 12, 2015, pet. filed).
None of the arguments made by Favalora’s counsel involve appeals to racial
prejudice, extreme or personal attacks on the opposing party, unsupported charges
of perjury, or inflammatory epithets. The alleged improprieties do not rise to the
level of incurable argument. See PopCap Games, Inc. v. MumboJumbo, LLC, 350
S.W.3d 699, 721 (Tex. App.—Dallas 2011, pet. denied); see also McChristian, 449
S.W.3d at 855–56 (reference to “snake oil” was not incurable). Accordingly, we
overrule Katy Springs’ fifth issue.
VII. EXCLUSION OF DRUG EVIDENCE & DENIAL OF MOTIONS TO REOPEN
EVIDENCE & FOR MISTRIAL
Because they both relate to the trial court’s decision to exclude evidence of
Favalora’s past drug use, we consider Katy Springs’ sixth and eighth issues
together. Katy Springs complains in its sixth issue that the trial court erred in
excluding evidence of Favalora’s past heroin use. Katy Springs offered hospital
reports as evidence of specific instances when Favalora was taken to the hospital
after allegedly overdosing on heroin. According to Katy Springs, if the court had
admitted the evidence, then Katy Springs could have used the evidence to impeach
Favalora’s credibility.
We review the trial court’s decision to admit or exclude evidence under an
abuse of discretion standard. Goss v. Hous. Cmty. Newspapers, 252 S.W.3d 652,
656 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Under Texas Rule of
41
Evidence 608(b), “[e]xcept for a criminal conviction under Rule 609, a party may
not inquire into or offer extrinsic evidence to prove specific instances of the
witness’s conduct in order to attack or support the witness’s character for
truthfulness.” Tex. R. Evid. 608(b). Katy Springs offered extrinsic evidence—the
hospital reports—to prove specific instances of Favalora’s conduct in order to
attack his credibility. This evidence was inadmissible for impeachment purposes.
See, e.g., TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 242 (Tex. 2010) (evidence
of plaintiff’s immigration status was inadmissible under rule 608(b)). The trial
court did not abuse its discretion in excluding the evidence.
In its eighth issue, Katy Springs asserts that the trial court erred in denying
its Motion to Reopen Evidence and its Motion for Mistrial. Katy Springs’
argument on appeal is based on the trial court’s improper exclusion of evidence
pertaining to Favalora’s past abuse of illegal drugs. The question of reopening a
case for the purpose of admitting additional evidence is within the sound discretion
of the judge. Word of Faith World Outreach Ctr. Church, Inc. v. Oechsner, 669
S.W.2d 364, 366 (Tex. App.—Dallas 1984, no writ). The court’s decision should
not be disturbed absent a clear abuse of discretion. Id. Similarly, the trial court’s
decision to overrule a motion for mistrial is reviewed for an abuse of discretion.
See Tex. Turnpike Auth. v. McCraw, 458 S.W.2d 911, 913 (Tex. 1970).
Here, Katy Springs sought to introduce the evidence at issue for the purpose
of impeaching Favalora. The evidence was not admissible for this purpose.
Therefore, we cannot conclude that the trial court abused its discretion in denying
Katy Springs’ motions. Accordingly, we overrule Katy Springs’ sixth and eighth
issues.
VIII. JURY CHARGE ERROR
In its seventh issue, Katy Springs complains that the trial court improperly
42
included instructions that were not supported by evidence and excluded requested
instructions. Katy Springs presents its arguments in six sub-issues.
The entirety of Katy Springs’ contentions on the first sub-issue consists of
the following:
The Court improperly excluded the instruction “A corporation and all
other persons are equal before the law and must be treated as equals in
a court of justice. [sic] Appellant timely objected and presented the
Court with the proper instruction[.]
The entirety of Katy Springs’ contentions on the third sub-issue consists of the
following:
The Court improperly segregated damage elements in Question No. 2
and should have listed physical pain and mental anguish as one
element and not separate elements of damage[.]
The entirety of Katy Springs’ contentions on the fourth sub-issue consists of the
following:
The Court improperly excluded Appellant’s Requested Instruction No.
1 that the mere occurrence of an even causing injury is not evidence
of negligence. Appellant provided case law in support of the inclusion
of this instruction and it was particularly important given the multiple
questionable versions of the alleged incident given by Appellee[.]
The entirety of Katy Springs’ contentions on the fifth sub-issue consists of the
following:
The Court improperly excluded Appellant’s Requested Instruction No.
2, which was appropriate as the evidence showed that Appellee was
performing the same character of work that he had always done and
that other employees were required to do[.9]
9
The requested instruction reads as follows: “When, at the time of his injury, the
employee was doing the same character of work that he had always done and that other
employees were required to do the employer was not negligent.”
43
The entirety of Katy Springs’ contentions on the sixth and final sub-issue consists
of the following:
The Court improperly excluded Appellant’s Requested Instruction No.
3 on mitigation. The evidence at trial supported the inclusion of this
instruction and Appellant had preserved the defense.[10]
Katy Springs does not cite any cases in support of its positions on these sub-
issues. Nor does Katy Springs analyze how the trial court’s error, if any, was
harmful. These sub-issues are therefore inadequately briefed. See Tex. R. App. P.
38.1(i); Canton-Carter, 271 S.W.3d at 931–32; Haas v. George, 71 S.W.3d 904,
914 (Tex. App.—Texarkana 2002, no pet.). By failing to adequately brief these
sub-issues, Katy Springs has waived them on appeal. Accordingly, we overrule
these sub-issues. We turn now to the second sub-issue.
Katy Springs asserts in the second sub-issue that the trial court erred when it
included the following instruction:
You are further instructed that Katy Springs & Manufacturing, Inc.
also owed duties to provide rules and regulations for an employee’s
safety, to furnish safe policies and procedures and to enforce safe
policies and procedures.
Katy Springs argues on appeal that the evidence was insufficient to support the
inclusion of this instruction:
[Favalora] provided no evidentiary or legal support the inclusion [sic]
of this instruction and there was no evidence adduced at trial that any
rule, regulation, policy or procedure was involved in the
circumstances surrounding [Favalora’s] alleged incident[.]
However, at trial, Katy Springs objected to this instruction on different grounds—
10
The requested instruction reads as follows: “Do not include any amount for any
condition resulting from the failure, if any, of Joseph Favalora to have acted as a person of
ordinary prudence would have done under the same or similar circumstances in caring for and
treating his injuries, if any, that resulted from the occurrence in question.”
44
namely, that the instruction misstated the law and was a comment on the weight of
the evidence:
Judge, in terms of the instruction, it looks like it’s going to be Page 4
on the Charge of the Court where there is your instruction to Katy
Springs, also duties to provide rules and regulations for an employee
safety to furnish said policy and procedures, to enforce - - and to
enforce safe policies and procedures, I don’t think that’s the law. And
I think it’s a comment on the weight of the evidence, and we would
object to that instruction being included.
To preserve error for appeal, the argument made below must match the argument
made on appeal. Wackenhut Corr. Corp. v. De la Rosa, 305 S.W.3d 594, 616 (Tex.
App.—Corpus Christi 2009, no pet.). Here, Katy Springs’ arguments do not match.
Therefore, Katy Springs preserved nothing for review, and we overrule this sub-
issue. See id. at 618.
Having overruled each of its six sub-issues challenging the jury charge, we
overrule Katy Springs’ seventh issue in its entirety.
IX. CONCLUSION
Because the evidence was insufficient to support the jury’s award for future
mental anguish, we modify the judgment to delete the $100,000 award for future
mental anguish and affirm the trial court’s judgment as modified.
/s/ Marc W. Brown
Justice
Panel consists of Justices Boyce, Brown, and Wise.
45