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.


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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

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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

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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




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                                        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.




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