Mary Lou Lara v. Jimmy Bui ( 2023 )

Opinion issued February 28, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-21-00484-CV
———————————
MARY LOU LARA, Appellant
V.
JIMMY BUI, Appellee
On Appeal from the 234th District Court
Harris County, Texas
Trial Court Case No. 2018-14386
MEMORANDUM OPINION
This is a personal injury case stemming from an automobile accident.
Appellant Mary Lou Lara challenges the trial court’s judgment rendered on the
jury’s verdict in favor of appellee Jimmy Bui on his negligence claim against Lara.
In one issue, Lara contends the evidence is legally and factually insufficient to
support the jury’s awards of $20,973.00 for past medical care expenses and
$150,000.00 for future medical care expenses because Bui did not provide any expert
testimony that the automobile accident caused his complained-of injuries. We affirm
in part, reverse and render in part, and reverse and remand in part.
Background
Lara and Bui were involved in a motor vehicle accident in Houston. In March
2018, Bui sued Lara alleging that Lara’s negligence caused his medical injuries. The
case proceeded to a jury trial. Three witnesses testified: Bui, Lara, and Dr. Alj
Florence Sparrow. The parties presented the following evidence at trial.
On the morning of September 2, 2016, at approximately 7:30 a.m., Bui was
driving northbound on Almeda Genoa Road and Lara was driving southbound on
the same road. Lara entered a cut-through to make a U-turn on the northbound side
of Almeda Genoa. As she proceeded into the right lane of the northbound side,
Lara’s vehicle collided with Bui’s vehicle. Bui’s airbag deployed, and both vehicles
were towed from the scene. The police arrived at the scene and completed a crash
report. Neither Bui nor Lara sought emergency care or other medical treatment
immediately following the accident.
2
At trial, Bui testified that he did not have any broken bones, internal bleeding,
or life-threatening injuries as a result of the accident.1 Bui testified that he did not
feel immediate pain but that “over time it did build up to the point that I was
experiencing pain on my back and my hand.” Four days after the accident, Bui was
seen by Nancy Huynh, a chiropractor, for pain in his back, neck, and wrist. Huynh
sent Bui for X-rays and a MRI of his lumbar spine which revealed two herniated
discs. Bui received twenty sessions of chiropractic treatment over the next two
months. At his last visit on November 1, 2016, Huynh released Bui, recommended
that he continue therapeutic exercises and stretching at home, and advised him to see
a specialist “due to un-resolving pain and to return if medically necessary.” In her
chart notes, Huynh wrote “[d]ue to clinical exams and diagnostic studies, it is my
personal opinioned [sic] that Mr. Bui[’s] injuries was the direct cause of the accident
sustained on 9/2/2016.” Huynh noted Bui’s final diagnosis as cervicalgia, thoracic
pain, lumbalgia, fatigue, muscle spasms, hand or wrist pain, and lumbar disc
disorder.
After experiencing increasing pain in his back, Bui returned to see Huynh
seven months later, on June 6, 2017. In her notes, Huynh stated: “Patient reported
he returned to therapy due to discomfort and achy pain along both sides of the mid
1
Bui testified that he was a passenger in a motor vehicle accident in 2011. He testified
that he experienced neck pain after the accident for which he sought chiropractic
care.
3
back region. [He] mentioned when sitting down in class, he has achy pain in the low
back with shooting sensation up the mid back region.” Under plan/treatment, Huynh
stated: “Patient was advised to get the MRI Thoracic Spine as recommended by the
Pain Management Specialist [Dr. Alj Sparrow] and continue care with the
specialist.” On June 20, Bui had an MRI of his thoracic spine which revealed “no
evidence of disc protrusions/herniations.”
On July 12, Bui was seen again by Dr. Sparrow. Dr. Sparrow noted:
Unfortunately, Mr. Bui continues to complain of low back pain
radiating to mid back. The patient is status post MRI of the thoracic
spine which revealed no disc herniation. The patient is status post MRI
of the lumbar spine performed on 10/04/2016 which revealed at L4-5 a
protrusion-subligamentous disc herniation extending into the epidural
fat and indenting the thecal sac. At L5-S1 there is an acute/subacute
protrusion-subligamentous disc herniation extending into the epidural
fat and indenting the thecal sac. Based on history, MRI report and
physical exam and the continued complaints of pain and radiculopathy
symptoms by Mr. Bui, I believe he can benefit from a Lumbar Epidural
Steroid Injection at L4-5, at this level for a series of three injections.
Bui ultimately received two epidural steroid injections (ESI). At Bui’s last
visit on October 17, 2017, Dr. Sparrow noted, “Fortunately, Mr. Bui states that his
low back pain has been reduced status post a lumbar ESI performed on 09/26/2017.
I believe he can benefit from home exercise and stretching program as well as follow
up with Dr. Nancy Huynh and continued physical therapy is also recommended.”
At trial, Dr. Sparrow testified that she reviewed some of Bui’s medical records
and his MRI reports and that, based on her review, she believed that ESIs were the
4
best option for treating Bui’s back pain and that they were medically necessary. She
testified that the two ESIs Bui had received temporarily alleviated his pain but that
the ESIs were not a permanent solution for herniated disks. Regarding future medical
treatment, Dr. Sparrow testified:
COUNSEL: Okay. How many do you anticipate, based upon
your review of his records, your review of how he
did with the MRI, and how he did with ESI
injections he received, what is your professional
medical opinion as to how many ESI injections he
is going to need and for how long?
DR. SPARROW: He could possibly need one to three injections per
year if his pain comes back and is increased. And it
could be -- it could be for -- until he’s 60, 70.
Medical records admitted into evidence showed that the two ESIs Bui received cost
a total of $20,973.00.
After both sides rested, Lara moved to exclude future medical care expenses
from the jury charge on the grounds that Dr. Sparrow did not testify that the expenses
for future medical care were reasonable to a degree of medical certainty or
probability or that Bui’s alleged need for future medical care was caused by the
accident. The trial court denied the motion.
The jury returned a verdict in favor of Bui on his negligence claim and
awarded him the following damages: (1) $36,488.00 in past medical care expenses,2
2
The bills for Bui’s past medical expenses admitted into evidence included the
following: 1st Choice Accident & Injury in the amount of $5,990.00; Healthplus
5
(2) $150,000.00 in future medical care expenses, and (3) $13,512.00 in future
physical impairment. The trial court entered final judgment based on the jury’s
verdict on June 8, 2021.
Lara moved for judgment notwithstanding the verdict requesting that the trial
court set aside the jury’s verdict regarding some of Bui’s past medical care expenses
and all his future medical care expenses because Bui produced insufficient evidence
at trial to support those damages. Specifically, she argued there was no evidence to
support the jury’s finding of $150,000.00 in future medical care expenses because
Bui’s expert, Dr. Sparrow, never testified that the future medical care she
recommended was required as a result of the motor vehicle accident. She further
argued that Dr. Sparrow’s testimony regarding past medical care treatment at
Complete Pain Solutions and the future medical care treatment she recommended
was conclusory, and that such conclusory testimony cannot support a judgment. The
trial court denied Lara’s motion. This appeal followed.
Discussion
Lara contends that the evidence is legally and factually insufficient to support
the jury’s award of $20,973.00 for past medical care expenses for treatment at
Complete Pain Solutions and its award of $150,000.00 for future medical care
Imaging in the amount of $1,100.00; ProHealth Medicine in the amount of $550.00;
Memorial MRI & Diagnostic, LLC in the amount of $7,875.00; and Complete Pain
Solutions in the amount of $20,973.00.
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expenses because Bui did not provide any expert testimony that the motor vehicle
accident caused his complained-of back injuries.3 In response, Bui asserts that Lara
failed to preserve her challenge to the factual sufficiency of the evidence supporting
the jury’s findings because she failed to move for a new trial. He further argues that
the evidence is sufficient to support the jury’s findings that Lara caused the accident
resulting in his injuries for which he required past medical care and which would
require future medical treatment.
A. Standard of Review
In conducting a legal sufficiency review, “we must consider evidence
favorable to the finding if the factfinder could reasonably do so and disregard
evidence contrary to the finding unless a reasonable factfinder could not.” Shields
Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017). We then consider the
evidence in the light most favorable to the challenged findings and indulge every
reasonable inference that supports the findings. George Joseph Assets, LLC v.
Chenevert, 557 S.W.3d 755, 765 (Tex. App.—Houston [14th Dist.] 2018, pet.
denied). When an appellant attacks a finding on an issue on which she did not have
the burden of proof, the appellant must demonstrate that no evidence supports the
adverse finding. Id. Evidence is legally insufficient to support a jury finding when
3
On appeal, Lara does not challenge the remainder of the award for past medical care
expenses totaling $15,515.00 or the award of $13,512.00 for future physical
impairment.
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(1) the record bears no evidence of a vital fact; (2) the court is barred by rules of law
or of evidence from giving weight to the only evidence offered to prove a vital fact;
(3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4)
the evidence conclusively establishes the opposite of a vital fact. Shields Ltd. P’ship,
526 S.W.3d at 480.
A party attacking the factual sufficiency of an adverse finding on an issue on
which she had the burden of proof must demonstrate on appeal that the adverse
finding is so against the great weight and preponderance of the evidence that the
judgment should be set aside. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.
2001). A verdict can be set aside “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.” Id.B. Factual Sufficiency Challenge
As a preliminary matter, we address Bui’s assertion that Lara waived her
challenge to the factual sufficiency of the evidence to support the jury’s findings.
Texas Rule of Civil Procedure 324 requires a party to move for a new trial
before it may complain on appeal about the factual sufficiency of the evidence
supporting a jury verdict. See TEX. R. CIV. P. 324(b)(2); J.M. Krupar Constr. Co. v.
Rosenberg, 95 S.W.3d 322, 336 (Tex. App.—Houston [1st Dist.] 2002, no pet.).
Here, Lara did not move for a new trial but rather moved only for a judgment
8
notwithstanding the verdict asking that the trial court set aside the verdict and
“render judgment.” Because Lara did not file a motion for new trial, we cannot
consider her complaint on appeal that the evidence was factually insufficient to
support the jury’s findings. See J.M Krupar Constr., 95 S.W.3d at 336; see also TEX.
R. APP. P. 33.1(a).
C. Legal Sufficiency Challenge
Lara contends that there is legally insufficient evidence to support the jury’s
verdict. Specifically, she argues that there is no evidence to support the jury’s award
of $20,973.00 in past medical care expenses for treatment at Complete Pain
Solutions or its award of $150,000.00 for future medical care expenses because Bui
did not provide any expert testimony that his back injuries were caused by the
accident. Bui responds that Dr. Sparrow was not required to testify explicitly about
causation because Bui’s testimony and the medical records on which Dr. Sparrow
relied established a strong, logically traceable connection between the accident, the
back pain, and the ESI treatment.
1. Applicable Law
To prevail on a negligence cause of action, Bui must establish the existence
of a duty, a breach of that duty, and damages proximately caused by the breach. W.
Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). “Establishing causation in a
personal injury case requires a plaintiff to ‘prove that the conduct of the defendant
9
caused an event and that this event caused the plaintiff to suffer compensable
injuries.’” JLG Trucking, LLC v. Garza, 466 S.W.3d 157, 162 (Tex. 2015) (quoting
Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)). In a typical
negligence case, “the plaintiff must establish two causal nexuses: (1) between the
defendant’s negligent act and the occurrence; and (2) between the occurrence and
the injuries of which the plaintiff complains.” Otis Spunkmeyer, Inc. v. Blakely, 30
S.W.3d 678, 684 (Tex. App.—Dallas 2000, no pet.) (citing Morgan v.
Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984)). Specifically, “when an
accident victim seeks to recover medical expenses, he must show ‘what all the
conditions were’ that generated the expenses and ‘that all the conditions were caused
by the accident.’” JLG Trucking, 446 S.W.3d at 162 (quoting Guevara v. Ferrer,
247 S.W.3d 662, 669 (Tex. 2007)).
Expert testimony is generally necessary to establish causation of medical
conditions outside the common knowledge and experience of lay persons. See
Guevara, 247 S.W.3d at 665. In limited cases, however, lay testimony may support
a causation finding that links an event with a person’s physical condition. Id. at 666.
“This exception applies only in those cases in which general experience and common
sense enable a layperson to determine the causal relationship with reasonable
probability.” Kelley v. Aldine Indep. Sch. Dist., No. 14-15-00899-CV, 2017 WL
421980, at *2 (Tex. App.—Houston [14th Dist.] Jan. 31, 2017, pet. denied) (mem.
10
op.) (citing Guevara, 247 S.W.3d at 666; Morgan, 675 S.W.2d at 733). In such cases,
“lay testimony establishing a sequence of events which provides a strong, logically
traceable connection between the event and the condition is sufficient proof of
causation.” Id. (quoting Morgan, 675 S.W.2d at 733).
2. No Expert Testimony Regarding Causation
Lara argues that Bui’s complained-of injuries required expert witness
testimony to establish causation. She asserts that his diagnoses of cervicalgia,
lumbalgia, lumbar radiculopathy, and two herniated discs are not the type of basic
injuries identified in Guevara for which expert testimony regarding the causal
connection between an occurrence and a physical condition is unnecessary. She
argues that because Bui did not provide expert testimony of causation, he cannot
recover for medical expenses for treatment of these diagnosed injuries.
The Fourteenth Court of Appeals’ decision in Hills v. Donis, No. 14-18-
00566-CV, 2021 WL 507306 (Tex. App.—Houston [14th Dist.] Feb. 11, 2021, pet.
denied) (mem. op.) and our decision in Sanchez v. Leija, No. 01-19-00165-CV, 2020
WL 7349094 (Tex. App.—Houston [1st Dist.] Dec. 15, 2020, no pet.) (mem. op.)
are instructive. In Hills, the plaintiffs sued the defendant following an automobile
accident alleging that her negligence caused the accident and their soft-tissue
injuries. See Hills, 2021 WL 507306, at *1. Medical bills admitted into evidence for
three of the five plaintiffs included diagnoses of cervical radiculitis, lumbar
11
radiculitis, thoracalgia, cervical intervertebral disc (IVD) displacement without
myelopathy, lumbar IVD displacement without myelopathy, thoracic IVD
displacement without myelopathy, cervical discogenic pain, lumbar discogenic pain,
disc herniation, cervical disc disorder, thoracic disc disorder, and lumbar disc
disorder. See id.Noting that “[e]xpert testimony is generally necessary to establish causation
of medical conditions that are ‘outside the common knowledge and experience of
jurors,’” the court stated that the types of injuries for which the three plaintiffs sought
compensation—i.e., cervical IVD displacement, lumbar IVD displacement, thoracic
IVD displacement, cervical discogenic pain, lumbar discogenic pain, disc herniation,
cervical disc disorder, lumbar disc disorder, thoracic disc disorder, cervical
radiculitis, lumbar radiculitis, thoracalgia, and lumbalgia—were neither common
nor basic. See id. at *4. Thus, the court concluded, the plaintiffs’ claims did not fall
within the kinds of “basic” injuries identified in Guevara for which expert testimony
regarding the causal connection between an occurrence and a physical condition is
unnecessary. Id. (citing Guevara, 247 S.W.3d at 667).4
4
In Guevara, the Texas Supreme Court explained that “if [the injured motorist] had
been pulled from a damaged automobile with overt injuries such as broken bones or
lacerations, and undisputed evidence which reasonable jurors could not disbelieve
showed that he did not have such injuries before the accident, then the physical
conditions and causal relationship between the accident and the conditions would
ordinarily be within the general experience and common knowledge of laypersons.”
Guevara v. Ferrer, 247 S.W.3d 662, 667 (Tex. 2007).
12
Bui argues that while Hills is instructive it is nevertheless distinguishable for
several reasons. He notes that, in Hills, one car was totaled, one car “sustained
substantial damage,” and the third car suffered “minimal damage” so that the driver
was able to drive the vehicle home with three passengers and himself. Here, in
contrast, both Bui’s car and Lara’s car were towed from the scene of the accident.
Bui also points to the fact that “[n]o airbags deployed in any of the vehicles” in Hills
while, in this case, his airbag deployed. Third, he asserts that the plaintiffs in Hills
relied entirely on their own testimony and medical records whereas in this case Bui
offered his own testimony, his medical records, and the testimony of Dr. Sparrow.
Finally, Bui argues that Hills is distinguishable from this case because of the
temporal proximity between the accident and the injuries.
To the extent there is any difference between the degree of damage to the
vehicles involved in the accident in Hills and this case, as well as the fact that the
airbags did not deploy in the vehicles in Hills, but the airbag deployed in Bui’s car,
these distinctions do not alter the fact that Bui’s injuries are not the types of basic
injuries for which expert testimony regarding causation was unnecessary. See
Guevara, 247 S.W.3d at 667. Bui’s assertion that the plaintiffs in Hills relied solely
on their own testimony and medical records, whereas, in this case, Dr. Sparrow
testified at trial, is similarly unavailing because, as discussed below, Dr. Sparrow
did not testify that Bui’s injuries were caused by the accident. Finally, as to the
13
temporal proximity between the accident and the plaintiffs’ injuries in Hills, one of
the plaintiffs testified that she sought chiropractic care to address her ankle injury
three days after the accident. Here, Bui sought treatment for his back pain four days
after the accident. However, temporal proximity alone cannot support an inference
of medical causation. Guevara, 247 S.W.3d at 667; W. Invs., 162 S.W.3d at 551
(stating proximate causation cannot be shown through conjecture, guess, or
speculation). Rather, evidence of temporal proximity only raises a suspicion that the
event caused the condition but is not legally sufficient to support a finding of
causation. See Guevara, 247 S.W.3d at 668.
In Sanchez, Sanchez sued Leija and his business following a motor vehicle
accident alleging that Leija caused his medical injuries and property damage. See
2020 WL 7349094, at *1. The trial court granted Leija’s no-evidence motion for
partial summary judgment regarding medical causation, and Sanchez appealed. See
id. We concluded that the types of injuries for which Sanchez sought
compensation—ligament sprain of the thoracic spine and lumbar spine, back spasms,
lumbar radiculopathy, and increased symptoms of post-traumatic stress disorder—
were neither common nor the type of “basic” injuries identified in Guevara. See id.
at *3. Because Sanchez did not provide expert testimony and neither the medical
records nor billing affidavits admitted into evidence raised a fact question with
respect to causation, we held that Sanchez had failed to produce more than a scintilla
14
of competent evidence on the element of causation of his medical injuries and the
trial court did not err in granting summary judgment in favor of Leija. See id. at *3–
4.
Similar to the complained-of injuries in Hills and Sanchez, Bui was diagnosed
with cervicalgia, lumbalgia, lumbar radiculopathy, and two herniated discs and
sought compensation for the past and future medical expenses for treatment of the
diagnosed injuries. Bui’s injuries are neither common nor the type of basic injuries
for which expert testimony regarding the causal connection between an occurrence
and a physical condition is unnecessary. See Hills, 2021 WL 507306, at *4; Sanchez,
2020 WL 7349094, at *3; see also McGee v. Tatum, No. 05-21-00303-CV, 2022 WL
17248174, at *5 (Tex. App.—Dallas Nov. 28, 2022, no pet.) (mem. op.) (concluding
plaintiff’s diagnoses of bulging discs, herniated disc, disc height reduction, mild
DDD,5 mild central canal stenosis, mild neuroforaminal stenosis, narrowing to
neuroforamina, traumatic cervical strain, cervical neuritis, traumatic lumbar strain,
lumbar neuritis, cervicogenic cephalgia, intervertebral disc disorders with
radiculopathy, thoracalgia, and cervicalgia were not terms within common
knowledge and experience of jurors and cause of soft-tissue back and neck injuries
5
The court noted in a footnote that “[a]ppellant’s attorney told the jury, and stated in
appellant’s brief, that ‘DDD’ stands for ‘degenerative disc disease,’ but there is no
evidence in the record of the abbreviation’s meaning.” McGee v. Tatum, No. 05-21-
00303-CV, 2022 WL 17248174, at *5 n.2 (Tex. App.—Dallas Nov. 28, 2022, no
pet.) (mem. op.).
15
were medical conditions outside common knowledge and experience of jurors);
Kelley, 2017 WL 421980, at *3 (“The types of injuries for which Kelley sought
compensation—multiple disc herniations, cervical radiculitis, and lumbar
radiculopathy—are neither common nor basic,” and expert medical testimony was
required to prove casual connection between work-related fall and claimed injuries);
City of Laredo v. Garza, 293 S.W.3d 625, 632 (Tex. App.—San Antonio 2009, no
pet.) (plaintiff’s complaint of back pain one month after on-the-job-accident required
expert medical testimony to establish causal link to accident).
Bui acknowledges on appeal that Dr. Sparrow did not testify about causation.
Citing to Guevara, Bui argues instead that Dr. Sparrow did not need to testify
explicitly about causation because Bui’s own testimony and his medical records
established a strong, logically traceable connection between the accident, his back
pain, and the ESI treatment. We disagree.
There is no evidence that Bui sustained overt injuries such as broken bones or
lacerations, or that he experienced objective physical symptoms shortly after the
accident. Thus, this case is not one to which the exception noted in Guevara
applies—that is, it is not a case in which general experience and common sense
enable a layperson to determine the causal relationship with reasonable probability.
Bui needed expert testimony to establish a causal connection between the accident
and his claimed injuries and his own testimony was insufficient to establish
16
causation. See Guevara, 247 S.W.3d at 663; McGee, 2022 WL 17248174, at *7;
Hills, 2021 WL 507306, at *4; Kelley, 2017 WL 421980, at *3; Garza, 293 S.W.3d
at 632–33.
Bui also relies on his medical records as evidence of a causal connection
between the accident and his injuries. Bui directs us to the following statement in
Huynh’s chart notes: “Due to clinical exams and diagnostic studies, it is my personal
opinioned [sic] that Mr. Bui[‘s] injuries was the direct cause of the accident sustained
on 9/2/2016.” To constitute competent evidence of causation, a medical expert’s
opinion must rest in reasonable medical probability. Burroughs Wellcome, 907
S.W.2d at 500. “This rule applies whether the opinion is expressed in testimony or
in a medical record, as the need to avoid opinions based on speculation and
conjecture is identical in both situations.” Id. Huynh’s opinion is not competent
evidence of causation because her opinion is conclusory. See id. An expert’s bare
proclamation that this one event caused another is not enough to establish causation;
“the expert must go further and explain, to a reasonable degree, how and why the
breach caused the injury based on the facts presented.” Jelinek v. Casas, 328 S.W.3d
526, 539–40 (Tex. 2010). Huynh’s note does not provide the necessary link between
Bui’s diagnosed injuries and the motor vehicle accident. Absent this link, the note is
unreliable speculation, which does not constitute legally sufficient evidence to
support the jury’s verdict. See id. at 532 (“When the evidence offered to prove a vital
17
fact is so weak as to do no more than create a mere surmise or suspicion of its
existence, the evidence is no more than a scintilla and, in legal effect, is no
evidence.”).
3. Medical Expenses
Lara contends that the evidence was legally insufficient to support the jury’s
award of $20,973.00 for the two ESIs that Bui received in the past and its award of
$150,000.00 for Bui’s alleged need for future ESIs. Bui argues that the evidence was
sufficient to support the jury’s awards for past and future medical care expenses.
Dr. Sparrow testified that she reviewed some of Bui’s medical records and his
MRI reports and that, based on her review, she believed that ESIs were the best
option for treating Bui’s back pain and that they were medically necessary. She
testified that the two ESIs Bui received temporarily alleviated Bui’s pain but that the
ESIs were not a permanent solution for herniated disks. Regarding future medical
treatment, Dr. Sparrow testified:
COUNSEL: Okay. How many do you anticipate, based upon
your review of his records, your review of how he
did with the MRI, and how he did with ESI
injections he received, what is your professional
medical opinion as to how many ESI injections he
is going to need and for how long?
DR. SPARROW: He could possibly need one to three injections per
year if his pain comes back and is increased. And
it could be – it could be for – until he’s 60, 70.
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“[W]hen an accident victim seeks to recover medical expenses, []he must
show both ‘what all the conditions were’ that generated the expenses and ‘that all
the conditions were caused by the accident.’” JLG Trucking, 466 S.W.3d at 162
(quoting Guevara, 247 S.W.3d at 669). Moreover, to constitute evidence of medical
causation, an expert opinion must rest on reasonable medical probability. Burroughs
Wellcome, 907 S.W.2d at 500. Reasonable probability is determined by the
substance and context of an expert opinion, rather than the use of any particular
words. Id. Where the substance of an expert’s testimony establishes only a mere
possibility, rather than a reasonable probability, of causation, it is no evidence of
causation. See Schaefer v. Tex. Empl’rs Ins. Ass’n, 612 S.W.2d 199, 204–05 (Tex.
1980). Further, to recover future medical expenses, a plaintiff must provide evidence
showing a reasonable probability that the medical expenses will be incurred in the
future, and the probable cost of such expenses. Gunn v. McCoy, 489 S.W.3d 75, 112
(Tex. App.—Houston [14th Dist.] 2016, pet. denied).
To avoid being conclusory or speculative, Dr. Sparrow was required, to a
reasonable degree of medical probability, to explain how and why the accident
caused Bui’s injuries. See Jelinek, 328 S.W.3d at 536. Dr. Sparrow’s testimony did
not establish that Bui’s injuries and his need for the two ESIs were proximately
caused by the accident. Moreover, her testimony regarding Bui’s need for future
medical care—“[h]e could possibly need one to three injections per year if his pain
19
comes back and is increased”—merely suggested the possibility of a need for future
treatment, rather than a probability, and was conditioned on Bui’s pain returning and
increasing. See Presswood v. Goehring, No. 01-04-00134-CV, 2005 WL 1365188,
at *5 (Tex. App.—Houston [1st Dist.] June 9, 2005, no pet.) (mem. op.) (concluding
medical expert’s testimony that plaintiff “potentially” might need future medical
treatment following motor vehicle accident and that expert would not recommend
plaintiff throw away medical device because she “could perhaps” continue to use it
did not meet standard of “all reasonable probability”); Rosenboom Mach. & Tool,
Inc. v. Machala, 995 S.W.2d 817, 828 (Tex. App.—Houston [1st Dist.] 1999, pet.
denied) (concluding that, absent testimony establishing that in all reasonable
probability patient would require future medical care and cost of such care, evidence
was legally insufficient to support jury’s award of $10,000 for future medical care
and expenses); see also Pilgrim’s Pride Corp. v. Smoak, 134 S.W.3d 880, 905–06
(Tex. App.—Texarkana 2004, pet. denied) (reversing future medical care award as
too speculative where there was no testimony that plaintiff would require any
additional procedures in future beyond mere possibilities).
We conclude that the evidence is legally insufficient to support the award to
Bui of $20,973.00 for past medical care expenses and $150,000.00 for future medical
care expenses. We therefore sustain Lara’s issue.
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Conclusion
We reverse the portion of the trial court’s judgment awarding $20,973.00 in
past medical care expenses for the two ESIs Bui received and render a judgment for
$15,515.00 as damages for Bui’s past medical care expenses. We reverse the portion
of the trial court’s judgment awarding $150,000.00 in future medical care expenses
and render judgment that Bui take nothing for future medical care expenses. We
further reverse the award of prejudgment interest, and we remand the case to the trial
court for the limited purpose of calculating the award of prejudgment interest based
on the modified award of damages. We affirm the trial court’s judgment in all other
respects.
Amparo Guerra
Justice
Panel consists of Justices Goodman, Hightower, and Guerra.
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