Reverse and Remand; Opinion Filed July 9, 2014.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-01581-CV
LARRY DEROME ADLEY, Appellant V. KEVIN WAYNE PRIVETT, Appellee
On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-00299-2010
MEMORANDUM OPINION Before Justices FitzGerald, Fillmore, and Evans Opinion by Justice Evans Larry Derome Adley appeals a judgment rendered against him after a jury trial in a
negligence lawsuit filed by Kevin Wayne Privett. Among other things, Adley complains the trial
court reversibly erred in admitting certain medical bills into evidence and the evidence was
legally insufficient to support the jury’s award of past medical expenses. After reviewing the
record, we agree. We therefore reverse the trial court’s judgment and remand the cause for a
new trial.
BACKGROUND
Privett filed a personal injury action against Adley after the motorcycle he was operating
collided with a motor vehicle driven by Adley. The case was tried to a jury which made liability
and damage findings in favor of Privett. The jury awarded Privett damages for past and future
physical pain and mental anguish, past and future loss of earning capacity, past and future physical impairment, and past medical expenses. The trial court rendered judgment on the jury
verdict. Adley perfected this appeal.
ANALYSIS
In his first issue, Adley challenges the legal sufficiency of the evidence to support the
jury’s award for past medical expenses of $44,568.07. In his second related issue, Adley
contends the trial court’s admission of medical bills that included charges not actually paid or
actually incurred by Privett constituted harmful error. We agree with Adley for the reasons set
forth below.
At trial, Privett introduced, over Adley’s objections, three bills to support his claim for
past medical expenses: (1) an unadjusted bill from Parkland Hospital containing $27,454.21 in
unpaid charges; (2) an invoice from PHI Air Medical for $12,983 in charges with “Adjustments”
of $12,983 and a notation “Writeoff to Collections” that resulted in a zero balance; and (3) a
“Patient Receipt” from Lake Pointe Orthopaedics Association listing $10,866.51 in charges,
various adjustments for payments and writeoffs, and a balance of $991.21 “SENT TO Barlow
Collections,” leaving a final balance of zero. Privett also offered affidavits from each provider
that the charges billed were reasonable and the services necessary. Additionally, the trial court
admitted into evidence a summary of Privett’s medical costs listing $12,983 for the PHI Air bill,
$27,454.21 for the Parkland bill, and $4,130.86 for the Lake Pointe bill. 1 The total listed on the
medical cost exhibit is the exact amount the jury awarded Privett for past medical expenses.
Section 41.0105 of the civil practice and remedies code limits a claimant’s recovery of
medical expenses to those which have been or must be paid by or for the claimant. TEX. CIV.
PRAC. & REM. CODE ANN. § 41.0105 (West 2008); Haygood v. De Escabedo, 356 S.W.3d 390,
1 With respect to the Lake Pointe bill, Privett argued to the court and the jury that he sought only the amount remaining after the listed writeoffs were applied.
–2– 398 (Tex. 2012). Moreover, only evidence of recoverable medical expenses is admissible at
trial. Haygood, 356 S.W.3d at 399. The burden is on the claimant to produce evidence from
which the jury may reasonably infer the amount of recoverable medical expenses. See id.
Here, at least two of the medical bills Privett submitted as evidence did not establish the
amounts charged by the providers were actually paid by or incurred by or on behalf of Privett.
The unadjusted hospital bill shows only what Privett was billed. Similarly, the PHI Air bill
provided no evidence of the amount actually paid or incurred by or on behalf of Privett. “Since a
claimant is not entitled to recover medical charges that a provider is not entitled to be paid,
evidence of such charges is irrelevant to the issue of damages.” Id. at 398. The Lake Pointe bill
contained writeoffs that arguably established what amount had been or must be paid by or on
behalf of Privett. But it is undisputed that the bill also contained charges for unrecoverable
amounts as well as insurance payments and writeoffs in violation of the collateral source rule.
See id. at 399–400. In short, the bills admitted to support the jury’s award of past medical
expenses were either no evidence of the amount actually paid or actually incurred by or on behalf
of Privett or were improperly admitted because they contained charges that Privett conceded
were not recoverable. Moreover, the admission of bills containing charges that were not
recoverable probably caused rendition of an improper judgment because, as a consequence of the
trial court’s evidentiary rulings, there was no evidence of past medical expenses. See TEX. R.
APP. P. 44.1(a); Henderson v. Spann, 367 S.W.3d 301, 304–05 (Tex. App.—Amarillo 2012, pet.
denied). In addition, the inadmissible evidence of unadjusted past medical expenses could have
had an impact on the jury’s assessment of non-economic damages. See Henderson, 367 S.W.3d
at 305.
In reaching our conclusion, we necessarily reject Privett’s contention that Adley failed to
preserve his legal sufficiency and evidentiary complaints for appellate review. To preserve a
–3– legal sufficiency challenge for appeal after a jury trial, an appellant must: (1) move for an
instructed verdict, (2) move for a judgment notwithstanding the verdict, (3) object to the
submission of the jury question, (4) move to disregard the jury finding or (5) move for a new
trial. See Cecil v. Smith, 804 S.W.2d 509, 510–11 (Tex. 1991). With respect to his contention
that evidence of past medical expenses was legally insufficient, Adley preserved his complaint
by objecting to the jury charge damage element “reasonable expenses for necessary care in the
past,” reurging under Haygood that there was “no relevant evidence to support any past lost
medical.” Adley also filed a motion for new trial arguing among other things, there was no
evidence of reasonable expenses of medical care in the past. Accordingly, Privett’s contention
that Adley waived his legal sufficiency complaint is not well taken.
We further conclude Adley’s complaints regarding the admissibility of the three medical
bills were also preserved for our review. The record reveals that after Privett offered these bills
into evidence, the trial court asked if there were any objections. Adley’s counsel responded yes,
noted some of the exhibits may have changed since they were first provided to her, and requested
to see them. Privett’s attorney then requested a sidebar discussion. After the discussion, the trial
court overruled Adley’s objections and admitted the bills. When Privett requested permission to
publish the exhibits to the jury, Adley asked to present objections to the exhibits outside the
presence of the jury. The trial court granted Adley’s request and heard the objections without the
jury present.
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Reverse and Remand; Opinion Filed July 9, 2014.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-01581-CV
LARRY DEROME ADLEY, Appellant V. KEVIN WAYNE PRIVETT, Appellee
On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-00299-2010
MEMORANDUM OPINION Before Justices FitzGerald, Fillmore, and Evans Opinion by Justice Evans Larry Derome Adley appeals a judgment rendered against him after a jury trial in a
negligence lawsuit filed by Kevin Wayne Privett. Among other things, Adley complains the trial
court reversibly erred in admitting certain medical bills into evidence and the evidence was
legally insufficient to support the jury’s award of past medical expenses. After reviewing the
record, we agree. We therefore reverse the trial court’s judgment and remand the cause for a
new trial.
BACKGROUND
Privett filed a personal injury action against Adley after the motorcycle he was operating
collided with a motor vehicle driven by Adley. The case was tried to a jury which made liability
and damage findings in favor of Privett. The jury awarded Privett damages for past and future
physical pain and mental anguish, past and future loss of earning capacity, past and future physical impairment, and past medical expenses. The trial court rendered judgment on the jury
verdict. Adley perfected this appeal.
ANALYSIS
In his first issue, Adley challenges the legal sufficiency of the evidence to support the
jury’s award for past medical expenses of $44,568.07. In his second related issue, Adley
contends the trial court’s admission of medical bills that included charges not actually paid or
actually incurred by Privett constituted harmful error. We agree with Adley for the reasons set
forth below.
At trial, Privett introduced, over Adley’s objections, three bills to support his claim for
past medical expenses: (1) an unadjusted bill from Parkland Hospital containing $27,454.21 in
unpaid charges; (2) an invoice from PHI Air Medical for $12,983 in charges with “Adjustments”
of $12,983 and a notation “Writeoff to Collections” that resulted in a zero balance; and (3) a
“Patient Receipt” from Lake Pointe Orthopaedics Association listing $10,866.51 in charges,
various adjustments for payments and writeoffs, and a balance of $991.21 “SENT TO Barlow
Collections,” leaving a final balance of zero. Privett also offered affidavits from each provider
that the charges billed were reasonable and the services necessary. Additionally, the trial court
admitted into evidence a summary of Privett’s medical costs listing $12,983 for the PHI Air bill,
$27,454.21 for the Parkland bill, and $4,130.86 for the Lake Pointe bill. 1 The total listed on the
medical cost exhibit is the exact amount the jury awarded Privett for past medical expenses.
Section 41.0105 of the civil practice and remedies code limits a claimant’s recovery of
medical expenses to those which have been or must be paid by or for the claimant. TEX. CIV.
PRAC. & REM. CODE ANN. § 41.0105 (West 2008); Haygood v. De Escabedo, 356 S.W.3d 390,
1 With respect to the Lake Pointe bill, Privett argued to the court and the jury that he sought only the amount remaining after the listed writeoffs were applied.
–2– 398 (Tex. 2012). Moreover, only evidence of recoverable medical expenses is admissible at
trial. Haygood, 356 S.W.3d at 399. The burden is on the claimant to produce evidence from
which the jury may reasonably infer the amount of recoverable medical expenses. See id.
Here, at least two of the medical bills Privett submitted as evidence did not establish the
amounts charged by the providers were actually paid by or incurred by or on behalf of Privett.
The unadjusted hospital bill shows only what Privett was billed. Similarly, the PHI Air bill
provided no evidence of the amount actually paid or incurred by or on behalf of Privett. “Since a
claimant is not entitled to recover medical charges that a provider is not entitled to be paid,
evidence of such charges is irrelevant to the issue of damages.” Id. at 398. The Lake Pointe bill
contained writeoffs that arguably established what amount had been or must be paid by or on
behalf of Privett. But it is undisputed that the bill also contained charges for unrecoverable
amounts as well as insurance payments and writeoffs in violation of the collateral source rule.
See id. at 399–400. In short, the bills admitted to support the jury’s award of past medical
expenses were either no evidence of the amount actually paid or actually incurred by or on behalf
of Privett or were improperly admitted because they contained charges that Privett conceded
were not recoverable. Moreover, the admission of bills containing charges that were not
recoverable probably caused rendition of an improper judgment because, as a consequence of the
trial court’s evidentiary rulings, there was no evidence of past medical expenses. See TEX. R.
APP. P. 44.1(a); Henderson v. Spann, 367 S.W.3d 301, 304–05 (Tex. App.—Amarillo 2012, pet.
denied). In addition, the inadmissible evidence of unadjusted past medical expenses could have
had an impact on the jury’s assessment of non-economic damages. See Henderson, 367 S.W.3d
at 305.
In reaching our conclusion, we necessarily reject Privett’s contention that Adley failed to
preserve his legal sufficiency and evidentiary complaints for appellate review. To preserve a
–3– legal sufficiency challenge for appeal after a jury trial, an appellant must: (1) move for an
instructed verdict, (2) move for a judgment notwithstanding the verdict, (3) object to the
submission of the jury question, (4) move to disregard the jury finding or (5) move for a new
trial. See Cecil v. Smith, 804 S.W.2d 509, 510–11 (Tex. 1991). With respect to his contention
that evidence of past medical expenses was legally insufficient, Adley preserved his complaint
by objecting to the jury charge damage element “reasonable expenses for necessary care in the
past,” reurging under Haygood that there was “no relevant evidence to support any past lost
medical.” Adley also filed a motion for new trial arguing among other things, there was no
evidence of reasonable expenses of medical care in the past. Accordingly, Privett’s contention
that Adley waived his legal sufficiency complaint is not well taken.
We further conclude Adley’s complaints regarding the admissibility of the three medical
bills were also preserved for our review. The record reveals that after Privett offered these bills
into evidence, the trial court asked if there were any objections. Adley’s counsel responded yes,
noted some of the exhibits may have changed since they were first provided to her, and requested
to see them. Privett’s attorney then requested a sidebar discussion. After the discussion, the trial
court overruled Adley’s objections and admitted the bills. When Privett requested permission to
publish the exhibits to the jury, Adley asked to present objections to the exhibits outside the
presence of the jury. The trial court granted Adley’s request and heard the objections without the
jury present. Adley then objected to all three bills based on the holding of Haygood, arguing
only evidence of recoverable medical expenses is admissible at trial. He also contended Privett
did not meet his burden of establishing that nothing had been written off on the Parkland bill,
that the PHI Air bill reflected writeoffs resulting in a zero balance and that the Lake Pointe bill
contained charges that were not recoverable and therefore inadmissible. The record reflects that
Adley objected to the bills before they were admitted and that before they were published to the
–4– jury the trial court heard and denied his objections to admissibility based on Haygood. We
therefore conclude that Adley properly preserved these complaints for appeal. See TEX. R. APP.
P. 33.1. We resolve Adley’s first and second issues in his favor. In light of our disposition of
Adley’s first and second issues, we need not address his remaining issues. See TEX. R. APP. P.
47.1.
Here, as in Haygood, there is no legally sufficient evidence to support the total award of
past medical expenses, even though there is more than a scintilla of evidence to support some of
the damages awarded. Garza de Escabedo v. Haygood, 283 S.W.3d 3, 7–8 (Tex. App.—Tyler
2009), aff’d sub nom., Haygood v. De Escabedo, 356 S.W.3d 390 (Tex. 2012). Unlike Haygood,
however, the record before us does not contain undisputed evidence about the total amount of
required insurance writeoffs applicable to the medical providers’ charges. Id. at 8. Accordingly,
rather than suggest a voluntary remittitur as the court of appeals did in Haygood, we reverse the
judgment of the trial court and remand this cause for a new trial. See TEX. R. APP. P. 44.1(b).
/David Evans/ DAVID EVANS 121581F.P05 JUSTICE
–5– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
LARRY DEROME ADLEY, Appellant On Appeal from the 416th Judicial District Court, Collin County, Texas No. 05-12-01581-CV V. Trial Court Cause No. 416-00299-2010 Opinion delivered by Justice Evans, KEVIN WAYNE PRIVETT, Appellee Justices FitzGerald and Fillmore participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for a new trial. It is ORDERED that appellant Larry Derome Adley recover his costs of this appeal from appellee Kevin Wayne Privett.
Judgment entered this 9th day of July, 2014.
–6–