ACCEPTED
01-18-00665-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
1/7/2019 6:59 PM
CHRISTOPHER PRINE
CLERK
NO. 01-18-00665-CV
FILED IN
1st COURT OF APPEALS
IN THE FIRST COURT OF APPEALS HOUSTON, TEXAS
AT HOUSTON, TEXAS ___________________
1/7/2019 6:59:33 PM
CHRISTOPHER A. PRINE Clerk
THE GULF COAST CENTER
Appellants
v.
DANIEL CURRY JUNIOR,
Appellee
_______________________________________________ On Appeal from the 56th Judicial District Court, Galveston County, Texas Cause No. 16-CV-0781
THE GULF COAST CENTER’S BRIEF
______________________________________________________________
Sean Higgins
Texas Bar No. 24001220
Lewis Brisbois Bisgaard & Smith
24 Greenway Plaza, Suite1400
Houston, Texas 77046
713.659.6767 (Telephone)
713.759.6830 (Facsimile)
sean.higgins@lewisbrisbois.com
ATTORNEY FOR APPELLANT
Oral Argument Requested
4853-2389-9013.1 i
IDENTITY OF PARTIES AND COUNSEL
Appellant:
The Gulf Coast Center
William F. Helfand
Texas Bar No. 09388250
Sean Higgins
Texas Bar No. 24001220
Lewis Brisbois Bisgaard & Smith
24 Greenway Plaza, Suite1400
Houston, Texas 77046
713.659.6767 (Telephone)
713.759.6830 (Facsimile)
Trial and appellate counsel
Brian Gargano
Lewis Brisbois Bisgaard & Smith
24 Greenway Plaza, Suite1400
Houston, Texas 77046
713.659.6767 (Telephone)
713.759.6830 (Facsimile)
Trial counsel
Appellee:
Daniel Curry, Jr.
Jonathan C. Kieschnick
Jonathan C. Kieschnick Law
17225 El Camino Real, Suite 445
Houston, Texas 77058
281.538.9200 (Telephone)
281.538.9229 (Facsimile)
Trial and appellate counsel.
4853-2389-9013.1 ii
STATEMENT REGARDING ORAL ARGUMENT
The trial court committed several errors that resulted in an erroneous verdict and improper judgment. Oral argument will enable the parties to answer any questions the Court may have concerning the evidence and conduct of the trial.
4853-2389-9013.1 iii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL…………………………………ii
STATEMENT REGARDING ORAL ARGUMENT………………………..iii
TABLE OF AUTHORITIES…………………………………………………viii
STATEMENT OF CASE………………………………………………………xii
ISSUES PRESENTED……………………………………………………….xiii
STATEMENT OF FACTS………………………………………………………1
A. The Gulf Coast Center is a governmental unit………………………1
B. The accident……………………………………………………………….1
C. Curry had a history of back pain before the accident and visited Mainland Medical Center with complaints of chronic back pain just two weeks before the accident…………………………..2
D. Following the accident, Curry only complained of moderate
knee pain……………………………………………………………………..3
E. Approximately 2 weeks after the accident, Curry visits Dr. Reuben, an orthopedic surgeon, and complains about
back and shoulder pain……………………………………………………4
F. After seeing Dr. Reuben for the first time, Curry also goes to
see an internist who prescribes him pain killers……………………..4
G. Dr. Reuben performs an epidural steroid injection on Curry………………………………………………………………………….5
H. Curry last sees Dr. Reuben for the last time in May 2017………….5
4853-2389-9013.1 iv
I. The trial……………………………………………………………………..6
1. The trial court denies Gulf Coast’s motion to exclude Dr. Reuben and allows him to testify on reasonableness and necessity of past medical expenses, reasonable
likelihood of future medical expenses and causation…………………6
2. Dr. Reuben’s opinions……………………………………………………..7
i. Dr. Reuben’s opinions on past medical bills…………………………..7
ii. Future expenses, all related to Curry’s back…………………………..8
iii. Causation of the past and future expenses……………………………..8
3. The court overrules Gulf Coast’s objections and admits Curry’s bills and accompanying affidavits of reasonableness and necessity……………………………………………………………………..8
4. Gulf Coast’s retained orthopedic surgeon testified, without objection, that Curry’s condition was not caused by the accident and that the charges were not reasonable and necessary…………….9
J. The court overrules Gulf Coast’s motion for directed verdict and objections to the jury charge and the jury finds Gulf Coast negligent, 100% responsible and awards him damages
of $216,000.00………………………………………………………………9
K. The trial court signs a judgment awarding Curry damages of $216,000.00, prejudgment interest of $7,568.00, and post judgment interest and overrules Gulf Coast’s post-judgment motions………………………………………………………………………10
SUMMARY OF ARGUMENT………………………………………………….11
STANDARD OF REVIEW……………………………………………………..13
4853-2389-9013.1 v
ARGUMENT………………………………………………………………………16
I. The judgment must be reversed because Gulf Coast is a unit of government for which liability is capped at
$100,000.00…………………………………………………………………16
II. The evidence is legally and factually insufficient to support
the jury’s awards for past and future medical expenses…………….20
A. There is legally and factually insufficient…………………………….20
B. The evidence of past medical expenses is legally and
factually insufficient……………………………………………………….23
C. There is legally and factually insufficient evidence the
accident caused the past and future medical expenses……………..26
III. The evidence is legally and factually insufficient to support the jury’s awards for past and future impairment………………………..28
IV. Alternatively, the Court should reverse and remand
this case because the trial court committed reversible
error by admitting Curry’s billing records and affidavits and
the testimony of Dr. Reuben……………………………………………30
A. Admission of the billing records and accompanying affidavits
is reversible error…………………………………………………………30
B. Admission of Dr. Reuben’s testimony is harmful error………………31 REQUEST FOR RELIEF……………………………………………………….32 CERTIFICATE OF COMPLIANCE………………………………………….33 CERTIFICATE OF SERVICE…………………………………………………34
4853-2389-9013.1 vi
APPENDIX
Judgment ……………………………………………………………………..A
Jury Charge……………………………………………………………………B
4853-2389-9013.1 vii
TABLE OF AUTHORITIES
Cases
Allright, Inc. v. Strawder,
679 S.W.2d 795. 801 (Tex. App. –Houston [14th Dist.] 1984,
writ ref’d n.r.e.) 30
Bowie Mem’l Hosp. v. Wright,
79 S.W.3d 48 (Tex. 2002) 16
Cain v. Bain,
709 S.W.2d 175 (Tex. 1986) 15
Canutillo Indep.. Sch. Dist. v. Olivares,
917 S.W.2d 494 (Tex. 1996) 18
City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005) 14, 15
City of Laredo v. Limon,
2013 Tex. App. LEXIS 13644 *17-18 (Tex. App. –San Antonio
2013, no pet.) 24
City of San Antonio v. Pollock,
284 S.W.3d 809 (Tex. 2009) 25
Coastal Transp. v. Crown Central Petroleum Corp.,
136 S.W.3d 227 (Tex. 2004) 25
Critical Path Res., Inc. v. Cuevas,
No. 14-16-00036-CV, 2018 Tex. App. LEXIS 2253 *64 (Tex.
App. –Houston [14th Dist.] March 29, 2018, no pet.) 21
DART v. Whitley,
104 S.W.3d 540 (Tex. 2003) 18
Dyson v. Olin Corp.,
692 S.W.2d 456 (Tex. 1985) 15
4853-2389-9013.1 viii
Edinburg Hosp. Auth. v. Trevino,
941 S.W.2d 76 (Tex. 1996) 18
El Paso Cty. Water Improvement Dist. v. Ochoa,
554 S.W.3d 51 (App. –El Paso 2018, no pet.) 19
Golden Eagle Archery, Inc. v. Jackson,
116 S.W.3d 757 (Tex. 2002) 28, 29
Hong v. Bennett,
209 S.W.3d 705 (Tex. App. –Fort Worth 2006, no pet.) 30
Jelinek v. Casas,
328 S.W.3d 526 (Tex. 2010) 14
Liang v. Edwards,
2016 Tex. App. LEXIS 12554 *11 (Tex. App. –Dallas 2016, no
pet.) 23, 30, 31
Lofton v. Tex. Brine Corp.,
720 S.W.2d 804 (Tex. 1986) 15
Pilgrim’s Pride v. Smoak,
134 S.W.3d 880 (Tex. App. –Texarkana 2004, pet. denied) 20, 21
Plas-Tex. Inc. v. U.S. Steel Corp.,
772 S.W.2d 442 (Tex. 1989) 15
Port of Houston Authority v. Guillory,
814 S.W.2d 119 (Tex. App –Houston [1st Dist.] 1991, no pet.) 19
Rogers v. Zanetti,
518 S.W.3d 394 (Tex. 2017) 25
Rosenboom Mach. & Tool v. Machala,
995 S.W.2d 817 (Tex. App. –Houston [1st Dist.] 1999, pet.
denied) 20, 21
Sampson v. Univ. of Tex at Austin, 500 S.W.3d 380 (Tex. 2016) 13, 18
4853-2389-9013.1 ix
Scott v. Prairie View A & M,
7 S.W.3d 717 (Tex. App. –Houston 18
State v. Central Expressway Sign Assocs.,
302 S.W.3d 866 (Tex. 2009) 16
Tex. Dept. of Parks & Wildlife v. Miranda,
133 S.W.3d 217 (Tex. 2002) 18
Tex. Dept. of Parks & Wildlife v. Miranda,
133 S.W.3d 217 (Tex. 2004) 14
Texarkana Mem’l Hosp., Inc. v. Murdock,
946 S.W.2d 836 (Tex. 1997) 23
Travelers Ins. Co. v. Martin,
28 S.W.3d 42 (Tex. App. –Texarkana 2000, no pet.) 24
Trinity River Authority v. Williams,
689 S.W.2d 883 (Tex. 1985) 19
Volkswagen of America, Inc. v. Ramirez,
159 S.W.3d 897 (Tex. 2005) 25
Weller v. State,
682 S.W.2d 234 (Tex. 1984) 18
Statutes
Tex. Health & Safety Code §534.001 17
Tex. Civ. Prac. & Rem. Code §18.001(e) 6
Tex. Civ. Prac. & Rem. Code §101.001(6) 18
Tex. Civ. Prac. & Rem. Code §101.022. 13
Tex. Civ. Prac. & Rem. Code §101.023. 10, 17
Tex. Civ. Prac. & Rem. Code §101.023(b) 16, 17
4853-2389-9013.1 x
Tex. Health & Safety Code §534.001(c) 17
Rules
Tex R. Evid. 702 21
Tex. R. App. P. 9.4 33
Tex. R. Evid. 702 6, 8, 23, 31
4853-2389-9013.1 xi
STATEMENT OF THE CASE
Nature of the
case: This is a personal lawsuit. Daniel Curry sued The Gulf Coast Center, a governmental unit, for negligence, alleging he was injured in an accident with a bus operated by Gulf Coast. CR 6-11.
Course of
Proceedings: This case was tried to a jury over a course of three days in March 2018. The jury found Gulf Coast negligent and 100 percent responsible for Curry’s injuries. The jury awarded Curry damages totaling $216,000.00. App. B.
On April 8, 2018, the trial court signed a judgment for the full amount of the jury verdict, plus interest. App. A. Gulf Coast timely moved to correct and reform the judgment, for j. nov and for a new trial. CR 192-284. The court overruled all three motions through written orders signed on June 19, 2018. CR 308-09. Curry filed a notice of appeal on July 2, 2018. CR 310-11.
4853-2389-9013.1 xii
ISSUES PRESENTED
I. It was undisputed at trial that Gulf Coast is a governmental unit. Despite this, the trial court ignored the statutory cap of $100,000.00 and entered judgment on the full verdict of $216,000.00, plus interest. The trial court did not have subject matter jurisdiction to enter the judgment as the Texas Tort Claims Act only waives a governmental unit’s immunity from suit up to the amount of the cap. The judgment, therefore, must be reversed.
II. Legally and factually insufficient evidence supports the jury’s awards for past and future medical expenses.
A. The jury awarded Curry $70,000.00 for future medical expenses, there is no evidence Curry would more likely than not require future treatment, nor was there evidence supporting future medical expenses of $70,000.00.
B. Curry failed to prove his past medical expenses of $36,000.00 were reasonable and necessary. Curry attempted to prove the reasonableness and necessity of these expenses through his testifying orthopedic surgeon, Jeffrey Reuben, M.D. Dr. Reuben was not qualified to opine on the reasonableness and necessity of the
4853-2389-9013.1 xiii
medical bills of providers who are not orthopedic surgeons, and he offered only his ipse dixit that the expenses were reasonable. Consequently, the evidence of reasonable and necessary past medical expenses is legally and factually insufficient.
C. The evidence of causation is legally and factually insufficient.
III. Legally and factually insufficient evidence supports the award of $60,000.00 for past and future physical impairment because there is no evidence, or factually insufficient evidence, that the effects of Curry’s injury were substantial and extend beyond pain and suffering.
IV. The Court committed reversible error by admitting Curry’s medical records and accompanying billing affidavits and by overruling Gulf Coast’s motion to exclude Dr. Reuben’s testimony and its specific objections to his testimony.
4853-2389-9013.1 xiv
STATEMENT OF FACTS
A. The Gulf Coast Center is a governmental unit.
Gulf Coast is a governmental unit. Bell test. 3 RR 233. Gulf Coast provides services to individuals with mental health issues, intellectual disabilities, substance abuse problems, HIV and homelessness. Bell test. 3
RR 233-34. Gulf Coast also provides public transportation for Galveston and Brazoria Counties, operating a fixed route van system. 3 RR 220-21 & 235.
B. The accident.
On February 23, 2016, a slow moving Gulf Coast van tapped Curry, causing him to fall. The incident happened as the van, operated by Gulf Coast Driver Daniel Auzenne, was beginning a right turn from 34th Street onto Palmer Highway in Texas City, Texas. Auzenne test. 3 RR 174. Auzenne brought the van to a complete stop before he began the turn. He looked in both directions to ensure no traffic or pedestrians were coming and then eased his foot off the brake pedal without tapping the accelerator. 3 RR 200-01. Auzenne saw Curry step in front of the van onto Palmer Highway and he immediately put his foot on the brake. 3 RR 185. Auzenne, however, could not avoid bumping Curry, who stumbled to the
4853-2389-9013.1 1
ground. 3 RR 203. Auzenne estimated the van was moving less than ten miles per hour when it bumped into Curry. 3 RR 182-83.
Curry, for his part, testified he was hit by the van as soon as he stepped into Palmer Highway. Curry test. 4 RR 78-79. He told emergency room personnel the van was moving less than 10 miles per hour. Mainland Records, 7 RR Px 17. 1
C. Curry had a history of back pain before the accident and visited Mainland Medical Center with complaints of chronic back pain just two weeks before the accident.
Curry had a long history of back pain. He had a previous episode of intense back pain that left him unable to walk. 4 RR 66. Two weeks before the accident, on February 8, 2016, he visited Mainland Medical Center complaining of “chronic low back pain now worse.” 7 RR Px 17. & 4 RR 66-67.
1 The intersection is controlled by a traffic light and a pedestrian signal. Whether the pedestrian signal was green and, therefore, whether Curry or the van had the right of way was hotly contested at trial. The jury’s findings on negligence and fault, however, are not challenged in this appeal.
4853-2389-9013.1 2
D. Following the accident, Curry only complained of moderate knee pain.
EMS came to the scene. Curry told EMS his left knee was hurting. The EMS record does not show any other complaint. EMS Record 7 RR Px 2. The following photograph shows Curry on the stretcher:
7 RR Dx 8.
EMS took Curry to Mainland Medical Center. At Mainland, Curry told the physician’s assistant he had “moderate pain” in his left knee that was radiating down to his left hip and ankle. 7 RR Px 17. This was Curry’s only complaint. 7 RR Px 17. Curry was diagnosed with a knee sprain and was promptly discharged with instructions to follow up with an orthopedic surgeon, Terry Siller M.D. Id.
4853-2389-9013.1 3
E. Approximately two weeks after the accident, Curry visits Dr. Reuben, an orthopedic surgeon, and complains about back and shoulder pain.
Curry went to see Dr. Reuben, an orthopedic surgeon, on March 6, 2016, about two weeks after the accident. Curry’s complaints were now no longer confined to his knee. In addition to knee pain, Curry told Dr. Reuben he had pain in his lower back and in both shoulders. Reuben test. 4 RR 12-13,2 7 RR Px 18.
Dr. Reuben ordered an MRI, and he referred Curry for physical therapy. 7 RR Px 18. The report on the MRI of Curry’s back states Curry had a disc herniation at L3-4 and broad based annular bulges at L4-5 and L5-S1. Id. The report for the shoulder MRI finds moderate acromioclavicular impingement and small joint effusion. Id.
F. After seeing Dr. Reuben for the first time, Curry also goes to see an internist who prescribes him pain killers.
Two weeks after he saw Dr. Reuben, Curry visited an internist,
Stephanie Badu, M.D., with complaints about his back. Dr. Badu
2 Dr. Reuben testified by deposition. The Court reporter failed to include his testimony in the originally filed reporter’s record. The reporter corrected this by filing an amended volume 4 of the reporter’s record on December 31, 2018. All citations to Volume 4 are to the amended reporter’s record.
4853-2389-9013.1 4
prescribed Curry Tylenol No. 4 with Codeine three times per day, Flexeril
and Naproxen. 7 RR Px 20.
G. Dr. Reuben performs an epidural steroid injection on Curry.
Dr. Reuben performed an epidural steroid injection on Curry on
February 14, 2017. Reuben test. 4 RR 23, 27-28.
H. Curry last sees Dr. Reuben for the last time in May 2017.
Curry last saw Dr. Reuben in May 2017, almost one year before trial. Curry test. 4 RR 101-02. Shortly after his final appointment with Dr. Reuben, Curry had a single physical therapy session. Id. As of the date of trial in March 2018, Curry had received no further treatment.
4853-2389-9013.1 5
I. The trial.
This case was tried to a jury over a period of three days.
1. The trial court denies Gulf Coast’s motion to exclude Dr. Reuben and allows him to testify on reasonableness and necessity of past medical expenses, reasonable likelihood of future medical expenses, and causation.
Curry relied on Dr. Reuben’s deposition testimony to prove the reasonableness and necessity of past medical expenses, the likelihood of future expenses, and causation.3 Gulf Coast moved before trial to exclude Dr. Reuben’s opinions under Tex. R. Evid. 702. CR 38-41. Through the motion, Gulf Coast challenged Dr. Reuben’s qualifications to opine on the reasonableness and necessity of bills by other providers and the bases for those opinions. Id. Gulf Coast also challenged the bases for Dr. Reuben’s opinions on future medical expenses and causation of the past and future medical expenses. The trial court denied the motion, on the record.4 3 RR 148-49. The court also overruled Gulf Coast’s specific objections to Dr. Reuben’s deposition testimony. 3 RR 152-57.
3 Curry was required to present evidence of reasonableness and necessity because Gulf Coast filed a controverting affidavit under Tex. Civ. Prac. & Rem. Code §18.001(e), (f). CR 47-50.
4 Gulf Coast also re-urged the motion before and at the conclusion of Dr. Reuben’s testimony, and the trial court denied the motion on both occasions. 4 RR 7 & 51.
4853-2389-9013.1 6
2. Dr. Reuben’s opinions.
Other than the EMS bill and the bill for the emergency room visit, all of the past bills Dr. Reuben testified to related to Curry’s back or his shoulder. None concerned his knee, which was his only complaint on the day of the accident. And all of the future treatment Dr. Reuben identified related to his back.
i. Dr. Reuben’s opinions on past medical bills.
Dr. Reuben opined that Curry’s past medical bills of $35,756.92 were reasonable, necessary and caused by the accident. 4 RR 11-12, 29, 7 RR Px
24. Other than Dr. Reuben, none of the providers were orthopedic surgeons. Dr. Reuben did not conduct a “line by line” review of the bills to determine whether the charges were reasonable. 4 RR 47. Nor did he compare charges to any publication to evaluate their reasonableness. 4 RR
46. Dr. Reuben simply gave his say so that the charges were reasonable based on his experience as a patient himself and as a witness in depositions where he saw medical bills. 4 RR 29.
4853-2389-9013.1 7
ii. Future expenses, all related to Curry’s back.
Dr. Reuben last saw Curry in May 2018, six months before his deposition, and nearly one year before trial. Nevertheless, he opined that Curry would require additional treatment. He testified Curry would need 1 to 2 more epidural steroid injections at a cost of $11,283.00. 4 RR 31-32. In the event those did not help, he testified Curry would need back surgery. Id. Dr. Reuben, however, could not say this was likely. 4 RR 45.
iii. Causation of the past and future expenses.
Dr. Reuben flatly opined that Curry’s alleged back and shoulder injuries, and hence his past and future medical expenses, were all caused by the accident. But he did not identify an objective basis for this opinion. As a matter of fact, he conceded it was possible Curry was not experiencing pain, or that the pain had a cause other than the accident. 4
RR 43.
3. The court overrules Gulf Coast’s objections and admits Curry’s bills and accompanying affidavits of reasonableness and necessity.
When Dr. Reuben’s testimony concluded, Curry offered his medical bills and affidavits of reasonableness and necessity into evidence. 4 RR 50-51, 7 RR Px 5-23. Gulf Coast objected, and the court overruled the
4853-2389-9013.1 8
objection. Id. The Court also admitted, over Gulf Coast’s objection, a
purported summary listing each of the charges. 4 RR 51, 7 RR Px 24.
4. Gulf Coast’s retained orthopedic surgeon testified, without objection, that Curry’s condition was not caused by the accident and that the charges were not reasonable and necessary.
The deposition testimony of Gulf Coast’s retained neurosurgeon, Larry Likover, M.D. was admitted without objection. Dr. Likover testified the disk herniation and bulge shown on the MRI are degenerative abnormalities, caused by aging and life. Likover test. 4 RR 121-22. Citing published literature, he explained that MRI’s showing these conditions are rarely associated with pain. 4 RR 122-23. Likover also testified that the condition shown on shoulder MRI reflects normal aging and does not cause problems. 4 RR 124.
J. The court overrules Gulf Coast’s motion for directed verdict and objections to the jury charge and the jury finds Gulf Coast negligent, 100% responsible and awards Curry damages of $216,000.00.
The trial court denied Gulf Coast’s motion for directed verdict, overruled its objections to the jury charge and submitted the case to the jury. The jury found Gulf Coast negligent and 100 percent responsible for
4853-2389-9013.1 9
Curry’s injuries and awarded him a total of $216,000.00, based on the following elements:
App. B.
K. The trial court signs a judgment awarding Curry damages of $216,000.00, prejudgment interest of $7,568.00, and judgment interest and overrules Gulf Coast’s post-judgment motions.
Curry moved for entry of judgment on the full amount of the verdict, plus prejudgment interest of $8,568.00 and post-judgment interest. Gulf Coast objected to Curry’s proposed judgment because it exceeded the
4853-2389-9013.1 10
$100,000.00 cap applicable to a unit of government under Tex. Civ. Prac. & Rem. Code §101.023. The trial court overruled the objection and entered judgment. 7 RR 2-9, App. A.
Gulf Coast subsequently moved for a new trial, j. nov as to certain of the jury’s findings, and to correct and reform the judgment. The trial court signed orders denying all three motions on June 19, 2018. CR 308-09. Gulf Coast filed a notice of appeal on July 2, 2018.
SUMMARY OF THE ARGUMENT
The trial court’s judgment must be reversed for several reasons.
It was undisputed that Gulf Coast is a unit of government whose liability is capped at $100,000.00. Despite this, the trial court entered judgment on the full verdict for $216,000.00, plus interest. The trial court acted outside its subject matter jurisdiction, and the judgment must be reversed.
Legally and factually insufficient supports the jury’s awards for past and future medical expenses. During closing argument, Curry’s attorney suggested the jury award future medical expenses between $11,000.00 and $22,000.00. While the evidence would not support an award for even this amount, the jury awarded Curry $70,000.00 in future medical expenses.
4853-2389-9013.1 11
Curry attempted to prove future medical expenses through his orthopedic surgeon, Dr. Reuben, whose testimony was improperly admitted over Gulf Coast’s pretrial motion to exclude. Dr. Reuben did not testify that Curry will more likely than not require future medical treatment. Indeed, Dr. Reuben had not seen Curry in over six months at the time he testified. He could not comment on Curry’s present condition. He could only speculate that Curry would require additional treatment if his pain continued.
The evidence is also legally and factually insufficient to support the award for past medical expenses. Curry, again, relied exclusively on Dr. Reuben to prove his bills were reasonable and necessary. As a orthopedic surgeon, Dr. Reuben was not qualified to opine to the reasonableness of bills issued by providers who are not orthopedic surgeons. Dr. Reuben offered only his ipse dixit that the charges were reasonable and necessary.
There is also legally and factually insufficient evidence that the accident caused Curry’s alleged injuries. Dr. Reuben’s testimony on this point was speculative, unreliable and should have been excluded. The only admissible evidence on the issue of causation was the testimony of Gulf
4853-2389-9013.1 12
Coast’s expert, Dr. Likover, who testified Curry’s alleged back and shoulder injuries were not caused by the accident.
The Court must also set aside the jury’s award of $60,000.00 for past and future physical impairment. In order to recover for physical impairment, Curry had to prove that the effects of his injury extend beyond ordinary pain and suffering. There was no such evidence.
Finally, the trial court committed reversible evidentiary errors by admitting Curry’s medical bills, accompanying billing affidavits and a purported summary of those bills and by admitting Dr. Reuben’s testimony.
The Court should reverse the judgment.
STANDARD OF REVIEW
A. Governmental immunity from suit.
Point I challenges the judgment because it exceeds the statutory limit of $100,000.00 on the liability of a governmental unit. Tex. Civ. Prac.
& Rem. Code §101.022. This point challenges the trial court’s subject matter jurisdiction because the Texas Tort Claims Act waives immunity from suit only to the extent it waives immunity from liability. Sampson v. Univ. of Tex at Austin, 500 S.W.3d 380, 384 (Tex. 2016). Subject matter
4853-2389-9013.1 13
jurisdiction is a question of law that is reviewed de novo. Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
B. Legal insufficiency.
Points II and III challenge the legal sufficiency of the evidence to support the awards for past and future medical expenses and physical impairment. Evidence is legally insufficient where the proof of a vital fact is completely absent or, while present, amounts to no more than a scintilla. Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex. 2010); City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). Inadmissible evidence cannot support a verdict. Nor does incompetent evidence, even when it is admitted without objection. City of Keller, 168 S.W.3d at 812.
Evidence is legally insufficient if the undisputed evidence rebuts the existence of a vital fact. Jelinek, 328 S.W.3d at 532; City of Keller, 168 S.W.3d at 810. Evidence is legally insufficient where evidence contrary to the verdict is conclusive. Id. at 817. In reviewing legal sufficiency, the Court does not confine itself to the evidence supporting the verdict. Legal insufficiency of the evidence may only be apparent when all of the evidence is placed in context. City of Keller, 168 S.W.3d at 811. Hence, the court must consider evidence contrary to the verdict if doing so reveals that the
4853-2389-9013.1 14
evidence supporting the verdict is incompetent. Id. If the evidence supporting the verdict is circumstantial, the Court must consider all of the circumstantial evidence, and the competing inferences that may be drawn from that evidence. Id. at 802.
C. Factual insufficiency.
Points II and III, alternatively, challenge the factual sufficiency of the evidence for past and future medical expenses and physical impairment. A judgment should be set aside for factual insufficiency where the evidence is so weak as to render the jury’s verdict clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam); Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985). In making this determination the Court considers and weighs all of the evidence. Plas-Tex. Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989); Lofton v. Tex. Brine Corp., 720 S.W.2d 804, 805 (Tex. 1986) (per curiam).
D. Error in admission and exclusion of evidence.
Point III challenges the trial court’s abuse of discretion in admitting Curry’s medical bills and accompanying billing affidavits and in admitting Dr. Reuben’s testimony. A court abuses its discretion by acting arbitrarily or unreasonably or without reference to guiding rules and principles.
4853-2389-9013.1 15
Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). If this Court finds an abuse of discretion, it must determine whether the court’s error is harmful. Error is harmful if it was reasonably calculated to cause and probably did cause an erroneous judgment. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989). But harmful error does not require a finding that exclusion or admission of the evidence more likely than not produced an erroneous result. See, State v. Central Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009).
ARGUMENT
I. The judgment must be reversed because Gulf Coast is a unit of government for which liability is capped at $100,000.00.
The Texas Tort Claims Act (“TTCA”) limits the liability of a governmental unit to a maximum of $100,000.00 per person. Tex. Civ. Prac. & Rem. Code §101.023(b). Here, there is no dispute that Gulf Coast is a governmental unit.
In his Petition, Curry alleged that Gulf Coast is a “governmental unit” and he invoked the limited waiver of immunity “under Title 5 Chapter, 101 of the Texas Civil Practice and Remedies Code.” CR 7. In its answer, Gulf Coast pleaded that it is a governmental unit, and that its
4853-2389-9013.1 16
liability is subject to the limitation under Tex. Civ. Prac. & Rem. Code §101.023. CR 12. At trial, Gulf Coast’s general counsel, Linda Bell, testified that Gulf Coast is one of 42 public mental health centers across Texas, is the public transportation provider for Galveston and Brazoria Counties, and is a unit of government. Bell test. 3 RR220-21, 233-34.
Despite this, the trial court ignored the statutory cap and entered judgment against Gulf Coast for the full amount of the verdict of $216,000.00 plus interest. This judgment is outside the trial court’s subject matter jurisdiction, and must be reversed.
Gulf Coast and other public mental health centers are created under Tex. Health and Safety Code §534.001, formerly Article 5547-203. V.A.C.S.5 CR 245-78. The Texas Health and Safety Code states community centers like Gulf Coast are “a unit of local government as defined and specified by Chapters 101 and 102 Civil Practice & Remedies Code.” Tex. Health & Safety Code §534.001(c). As a unit of government, Gulf Coast’s liability is capped at $100,000.00. Tex. Civ. Prac. & Rem. Code §101.023(b). The cap precludes addition of interest or any other
5 See 1991 Tex. HB 902, reenacting and re-codifying Art. 5547-203 V.A.C.S.
4853-2389-9013.1 17
amount to a judgment capped at $100,000.00. Weller v. State, 682 S.W.2d 234, 234-35 (Tex. 1984). 6
The statutory cap is a limitation on the waiver of immunity from suit, and, therefore, of the trial court’s subject matter jurisdiction. DART v. Whitley, 104 S.W.3d 540, 543 (Tex. 2003) (Immunity from suit defeats subject matter jurisdiction). This is because the waiver of immunity from suit and immunity from liability under the TTCA are “are coextensive,” and the Act abolishes immunity from suit only to the extent it waives immunity from liability. Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 229 (Tex. 2002); Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016). See also, Scott v. Prairie View A & M, 7 S.W.3d 717, 719 (Tex. App. –Houston (1st Dist.] 1999, pet. denied) (“The Act then waives immunity from suit to the extent immunity from liability is waived under the Act.”)
6 Additionally, the higher caps under §101.023(a) and (c) are inapplicable because Gulf Coast is neither the state government nor a municipality. Tex. Civ. Prac.
& Rem. Code §101.001(6) (Defining state government as “agency, board, commission, department or office” that “(A) was created by the constitution or a statute of this state; and (B) has statewide jurisdiction.”); Tex. Local Gov’t Code §§5.001-005. See also, Canutillo Indep.. Sch. Dist. v. Olivares, 917 S.W.2d 494, 498-99 (Tex. 1996) (School districts are not municipalities).
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The liability cap is one of the limitations the TTCA places on the government’s waiver of its immunity from suit. Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 82 (Tex. 1996) (Hecht, J. concurring); Trinity River Authority v. Williams, 689 S.W.2d 883, 886 (Tex. 1985) (“The dollar limitation represents the state’s intent to limit the waiver of sovereign immunity.”); Port of Houston Authority v. Guillory, 814 S.W.2d 119, 122 (Tex. App –Houston [1st Dist.] 1991, no pet.) (same). Thus, a governmental unit retains its immunity from suit for damages in excess of the cap, and a court is without jurisdiction to enter judgment in excess of the cap. El Paso Cty. Water Improvement Dist. v. Ochoa, 554 S.W.3d 51, 55-56 (App. – El Paso 2018, no pet.) (“Since the trial court has determined, and the parties do not here dispute, that the Water District has paid the waiver limit for property damage and the Water District is immune from suit over the waiver limit, immunity is reinstated for any claim over the waiver limit.”)
The cap is absolute. A judgment exceeding the cap is outside the trial court’s subject matter jurisdiction. The judgment, therefore, must be reversed.
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II. The evidence is legally and factually insufficient to support the jury’s awards for past and future medical expenses.
A. There is legally and factually insufficient evidence of future medical expenses.
Curry’s attorney urged the jury to award between $11,000.00 and $22,000.00 for future medical expenses. 4 RR 160-61. The jury awarded far more, $70,000.00. The evidence for this award is legally and factually insufficient.
To recover future medical expenses, Curry had to prove two things. First, he had to show a reasonable probability he would incur medical expenses in the future, meaning there was “more than a fifty percent chance” he would need treatment. Pilgrim’s Pride v. Smoak, 134 S.W.3d 880, 905 (Tex. App. –Texarkana 2004, pet. denied). Second, he had to show the reasonable cost of the treatment. Id. Stated differently, Curry was required to “establish that in all reasonable probability, future medical care would be required and the reasonable cost of that care.” Rosenboom Mach. & Tool v. Machala, 995 S.W.2d 817, 828 (Tex. App. – Houston [1st Dist.] 1999, pet. denied).
A jury must determine the amount of future medical expenses based on “the nature and course of the injuries, or disability, the medical care
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rendered before trial, past medical expenses, and the condition of the injured party at the time of trial.” Smoak, 134 S.W.3d at 905. See also, Rosenboom, 995 S.W.2d at 828. “The preferred method to establish future medical expenses is through expert medical testimony.” Critical Path Res., Inc. v. Cuevas, No. 14-16-00036-CV, 2018 Tex. App. LEXIS 2253 *64 (Tex. App. –Houston [14th Dist.] March 29, 2018, no pet.)
Still, there can be no recovery for future medical expenses without proof that future treatment will more likely than not be necessary. This Court illustrated this point in Rosenboom. In that case, there was evidence of the plaintiff’s three to four week hospitalization, severe pain, past medical treatment and testimony that she continued to suffer back pain at the time of trial. Rosenboom, 995 S.W.2d at 828. But no evidence supported the award for future damages because there was no testimony the plaintiff was likely to require medical care in the future, and of the cost of such care. Without this testimony, there could be no recovery for future medical expenses. Id.
In this case, the only testimony touching on future medical treatment was provided by Dr. Reuben, and was admitted over Gulf Coast’s motion to exclude under Tex R. Evid. 702. Dr. Reuben did not testify Curry was
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likely to require future treatment. Having last seen Curry in May 2017, Dr. Reuben could not comment on Curry’s present condition, or the probability he would need further treatment. Hence, Dr. Reuben testified only that he would recommend up to two additional epidural steroid injections if Curry’s back pain persisted. 4 RR 31-32. Dr. Reuben speculated that if neither shot worked, then Curry might require surgery. 4 RR 32. But he admitted he could not say Curry was likely to require surgery in the future. 4 RR 45.
Evidence of the probable cost of future treatment is also absent. While Dr. Reuben testified epidural steroid injections cost around $11,000.00 each, he did not testify it was probable Curry would need even a single injection, let alone two. And there was no evidence in the record of the cost of surgery or any other treatment.
The record contains no evidence Curry will require any amount of medical treatment in the future, let alone treatment costing $70,000.00. The Court should reverse and render the award or, alternatively, reverse and remand this case for a new trial, with or without a suggestion of remittitur.
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B. The evidence of past medical expenses is legally and factually insufficient.
The jury’s award of $36,000.00 in past medical expenses must also be set aside. To recover past medical expenses, Curry was required to prove the injuries treated were caused by Gulf Coast’s negligence, that the medical treatment was necessary and that the charges were reasonable. Texarkana Mem’l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 840 (Tex. 1997). The evidence of each element is legally and factually insufficient.
Because Gulf Coast served a counter-affidavit, Curry was required to present expert testimony of his reasonable and necessary past medical expenses. Liang v. Edwards, 2016 Tex. App. LEXIS 12554 *11 (Tex. App. –Dallas 2016, no pet.) Curry attempted to meet this burden through Dr. Reuben’s testimony. Gulf Coast moved to exclude Dr. Reuben’s testimony under Tex. R. Evid. 702, and the trial court denied the motion. Dr. Reuben’s testimony is no evidence. He was not qualified to opine to many of the expenses, and he offered only his ipse dixit or say so that the expenses were reasonable and necessary.
“Not every doctor can qualify as an expert in every given case. The offering party must show his medical expert has knowledge, skill, experience, training or education regarding the specific issues before the
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court which would qualify the expert to give an opinion on that particular subject.” Travelers Ins. Co. v. Martin, 28 S.W.3d 42, 47 (Tex. App. – Texarkana 2000, no pet.) In Martin, the court found an orthopedic surgeon unqualified to testify to the reasonableness and necessity of charges by a chiropractor. Id. at 42. The surgeon, the court explained, “had no training or expertise in the field of chiropractic” and the defendant did not show how his training “as an orthopedic surgeon qualified him to opine about the reasonableness and necessity of chiropractic treatment.” Id.
Dr. Reuben opined to the reasonableness and necessity of charges by EMS, two emergency rooms, a radiologic clinic, and an internist. 4 RR 11-
12. Dr. Reuben’s credentials as an orthopedic surgeon did not qualify him to opine on these bills. And Curry failed to show Dr. Reuben had any other qualifications, knowledge or experience to testify to the reasonableness and necessity of any bill other than an orthopedic surgeon’s bill. See City of Laredo v. Limon, 2013 Tex. App. LEXIS 13644 *17-18 (Tex. App. –San Antonio 2013, no pet.) (“Although an orthopedic surgeon may work with a radiologist, Dr. Lee does not recite any facts that demonstrate he has knowledge of the billing practices used by radiologists . . . Instead, Dr. Lee
4853-2389-9013.1 24
simply states in conclusory fashion that he is ‘familiar with reasonable and customary charges . . .’”).
But even if Dr. Reuben was qualified, which he is not, his testimony is still no evidence because he offered no basis for his opinion that the bills are reasonable and necessary. Dr. Reuben did not analyze the individual charges on the bills, he just looked at the bottom line number, and he did not consult any publications to determine whether the bills were reasonable and necessary. 4 RR 46-47. Instead, Dr. Reuben gave only his say so that he is generally familiar with medical bills, and that Curry’s bills are reasonable. 4 RR 29.
In short, Dr. Reuben’s testimony is no evidence because he failed to provide any basis for his opinion or, at best, gave a basis that does not support his opinion. Rogers v. Zanetti, 518 S.W.3d 394 (Tex. 2017); City of San Antonio v. Pollock, 284 S.W.3d 809, 816-17 (Tex. 2009); Volkswagen of America, Inc. v. Ramirez, 159 S.W.3d 897 (Tex. 2005); Coastal Transp. v. Crown Central Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004).
The Court should reverse and render judgment as to the award for past medical expenses or, alternatively, reverse and remand this case for a new trial, with or without suggesting remittitur.
4853-2389-9013.1 25
C. There is legally and factually insufficient evidence the accident caused the past and future medical expenses.
The court should reverse and remand this case for a new trial for the additional reason that there is factually insufficient evidence that the accident caused Curry’s past and future medical expenses.
The evidence showed Curry had a history of back problems before the accident. 4 RR 66. Indeed, Curry reported to Mainland just two weeks before the accident with complaints of “chronic low back pain, now worse.” 7 RR Px 17, 4 RR 66-67. When Curry went to Mainland on the day of the accident, he complained only of moderate pain in his knee. He did not report any back pain or shoulder pain. 7 RR Px 17. And Curry did not complain of injuries to his back and shoulder until he went to see his testifying expert, Dr. Reuben, two weeks after the accident. 4 RR 13, 7 RR Px 18.
Presented with this history, Dr. Reuben tacitly acknowledged he was required to speculate about the cause and existence of Curry’s injuries. Indeed, Dr. Reuben conceded it was possible Curry did not complain about his back and shoulder in the emergency room because he is “not being truthful” about his injuries, or injured his back and shoulder in some other way, after he left the emergency room. 4 RR 43.
4853-2389-9013.1 26
Should more be necessary, the only evidence on the issue of causation was the testimony of Larry Likover, M.D., Gulf Coast’s retained neurosurgeon. Dr. Likover testified there was no evidence Curry’s back was injured by the accident or that his back and shoulder pain was caused by the accident. 4 RR 118, 120. Dr. Likover opined that the bulged disc shown on the MRI of Curry’s back was a degenerative condition caused by aging, and not by the accident. 4 RR 121-22. He testified further that very strong peer reviewed literature establishes a bulged disc generally does not cause pain or require treatment. 4 RR 122-23. He testified, likewise, that the MRI of Curry’s shoulder showed enlargement of the acromioclavicular joint, which is also a condition of aging and does not cause problems or require treatment. 4 RR 124.
The evidence of causation is legally and factually insufficient. The Court should reverse the judgment.
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III. The evidence is legally and factually insufficient to support the jury’s awards for past and future impairment.
The jury awarded Curry $25,000.00 for physical impairment sustained in the past and $35,000.00 for “physical impairment that in reasonable probability, will be sustained in the future.” App. B. Neither award is supported by legally or factually sufficient evidence. As a matter of law, the awards for past and future pain and suffering are sufficient to compensate Curry for his injuries, if any.
In order to recover for physical impairment, Curry had to prove that the effects of his injury are substantial and extend beyond pain and suffering. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 772 (Tex. 2002). An award for physical impairment is only appropriate if the plaintiff’s injury is “substantial or extremely disabling” and has caused a loss distinct from and in addition to pain, suffering, and mental anguish. Swinnea v. Flores, 2008 Tex. App. LEXIS 3038 *17 (Tex. App. –Amarillo 2008, no pet.) In a case such as this, where the court submits and the jury awards sums for pain and suffering, “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.
4853-2389-9013.1 28
Swinnea illustrates this point. In that case, the jury awarded the plaintiff damages for pain and suffering, lost earning capacity and physical impairment. The Court of Appeals set aside the award for physical impairment. The evidence showed only that the plaintiff’s injuries disrupted his work and affected his sleep but did not show “a separate loss extending beyond pain and suffering or lost earning capacity.” Swinnea, 2008 Tex. App. *17. Consequently, the awards for lost earning capacity and pain and suffering fully compensated the plaintiff for his injury, and the award for physical impairment only duplicated that recovery. Id.7
What was true in Swinnea is also true in this case. The evidence shows, at most, that Curry experienced pain in the past and might experience pain in the future. But it does not show past or future impairment extending beyond mere pain and suffering. Curry did not testify to such impairment. Indeed, Curry did not even receive treatment for his alleged pain during the ten months preceding trial. 4 RR 101-02.
The jury’s awards for past and future pain and suffering adequately compensate Curry. There is no evidence of further impairment. The
7 Curry presented no evidence of lost income. Curry withdrew this claim when Gulf Coast sough to admit his felony conviction and ongoing incarceration into evidence. 4 RR 103-04.
4853-2389-9013.1 29
Court, therefore, should reverse and render judgment as to the jury’s
award for past and future impairment or remand this case for a new trial.
IV. Alternatively, the Court should reverse and remand this case because the trial court committed reversible error by admitting Curry’s billing records and affidavits and the testimony of Dr. Reuben.
Even if the Court finds legally and factually sufficient evidence to support the awards for medical expenses and impairment, it should still reverse and remand and remand this case. The trial court abused its discretion by admitting Curry’s medical bills and accompanying affidavits into evidence, and by admitting by Dr. Reuben’s expert testimony. These errors, taken alone or together, were calculated to and probably did result in an incorrect judgment.
A. Admission of the billing records and accompanying affidavits is reversible error.
The trial court abused its discretion when it overruled Gulf Coast’s objections and admitted Curry’s medical bills and accompanying affidavits into evidence, along with an accompanying summary of medical charges. 4
RR 51. Gulf Coast timely filed an affidavit controverting the reasonableness and necessity of those expenses. A court may not admit affidavits on reasonableness and necessity once a controverting affidavit is
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filed. Liang, 2016 Tex. App. LEXIS at *12; Hong v. Bennett, 209 S.W.3d
705, at 801 (Tex. App. –Fort Worth 2006, no pet.) (Citing Allright, Inc. v.
Strawder, 679 S.W.2d 795. 801 (Tex. App. –Houston [14th Dist.] 1984, writ
ref’d n.r.e.).
The error was plainly harmful. Curry’s attorney cited the affidavits
during closing argument:
Now it wasn’t just Dr. Reuben that firmed up those bills. For every single provider, I got an affidavit from their custodian of billing records to establish what those bills are. . . So, at any rate, you’ve got two independent sources, Dr. Reuben and every single affiant establishing that those bills are paid. That’s under oath.
4 Rr 158-59.8 See Liang, at *12 (Finding error in admitting affidavits
harmful where plaintiff’s counsel argued “you can look at those affidavits,
and you can add them up yourself.”)
B. Admission of Dr. Reuben’s testimony is harmful error.
As discussed in Point II, Dr. Reuben’s testimony was unreliable, speculative and inadmissible under Tex. R. Evid. 702, was admitted in error, and is no evidence of damages and causation. If the Court somehow finds the evidence, apart from Dr. Reuben’s testimony, sufficient to
8 The trial court overruled Gulf Coast’s objection to this argument. 4 RR 158-
59.
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support the awards for past and future medical expenses, it should still reverse and remand this case because the admission of Dr. Reuben’s testimony was harmful. Dr. Reuben was the only physician called by Curry to testify to his past and future medical experiences and the cause of those expenses, and Curry’s attorney emphasized his testimony during his closing argument. 4 RR 158.
The Court should reverse and remand this case for a new trial.
REQUEST FOR RELIEF
For the foregoing reasons, Gulf Coast requests the Court to reverse and render judgment as to the awards for past and future medical expenses and past and future physical impairment or, alternatively, reverse and remand this case for a new trial, with or without suggesting remittitur.
4853-2389-9013.1 32
Respectfully submitted,
LEWIS BRISBOIS BISGAARD &
SMITH LLP
/s/ Sean Higgins
Sean M. Higgins
SBOT: 24001220
24 Greenway Plaza, Suite1400
Houston, Texas 77046
713.659.6767 (Telephone)
713.759.6830 (Facsimile)
Sean.Higgins@lewisbrisbois.com
ATTORNEY FOR APPELLANT
CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. P. 9.4, I certify that this Brief contains 6,093 words. This is a computer-generated document created in Microsoft Word, using 14-point typeface for all text, except for footnotes which are in 12-point typeface. In making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document.
/s/ Sean M. Higgins
Sean M. Higgins
4853-2389-9013.1 33
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing
document has been served on counsel of record by electronic filing,
certified or regular mail, and/or by facsimile on this the 7th day of
January, 2019.
Jonathan C. Kieschnick
Jonathan C. Kieschnick Law
17225 El Camino Real, Suite 445
Houston, Texas 77058
281.538.9200 (Telephone)
281.538.9229 (Facsimile)
jck@jck-law.com
ATTORNEY FOR APPELLEE
/ s / Sean M. Higgins
SEAN M. HIGGINS
4853-2389-9013.1 34
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