                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-13-00518-CV
                           ____________________

               PILGRIM’S PRIDE CORPORATION, Appellant

                                         V.

                         JUDY MANSFIELD, Appellee
_______________________________________________________            ______________

                    On Appeal from the 128th District Court
                            Orange County, Texas
                         Trial Cause No. A-100613-C
________________________________________________________             _____________

                          MEMORANDUM OPINION

      Pilgrim’s Pride Corporation appeals from a judgment rendered following a

jury trial in a products case. The jury found that Pilgrim’s product, a bag of frozen

chicken, contained a manufacturing defect at the time it was sold to the grocer

whose customer was injured when she fell on liquid that leaked through an opening

in the bag. On appeal, Pilgrim’s challenges the sufficiency of the evidence

supporting the jury’s liability findings, contends the evidence is insufficient to

support the jury’s award of $50,000 in compensation for the plaintiff’s future


                                         1
medical expenses, and asserts it was harmed by the trial court’s refusal to submit

two jury instructions: an instruction on the grocer’s destruction of the bag shortly

after the plaintiff fell, and an instruction on whether the product involved in the fall

had undergone a substantial change or alteration after it left Pilgrim’s hands.

      We conclude the arguments that Pilgrim’s raises to challenge the sufficiency

of the evidence as they relate to the jury’s liability findings are without merit. We

further conclude the trial court did not abuse its discretion by refusing the

instructions Pilgrim’s asked the trial court to include in the jury charge. Finally, we

conclude that Pilgrim’s argument that the evidence is legally insufficient to support

the jury’s award on the element of whether the plaintiff will probably incur future

medical expense is without merit, but we agree with Pilgrim’s that the evidence is

factually insufficient to support the full amount of the jury’s award on that element

of the plaintiff’s claim. In light of our resolution of Pilgrim’s appellate issues, we

affirm the jury’s verdict, conditioned on the plaintiff’s agreement to remit a portion

of the amount she was awarded in the judgment in compensation on the future

medical element of her damage claim.

                                     Background

      While shopping for groceries at a retail grocer, Judy Mansfield slipped and

fell near her shopping cart. When Robert Williamson, the store manager, helped

Judy up from the floor, Judy told him that she thought she was okay and that she
                                           2
did not need an ambulance. Williamson filled out an accident report on the store’s

form; his report indicates that Judy slipped and fell on blood that leaked from a bag

containing chicken while she was walking behind her cart.

      During the trial, Williamson confirmed that he assisted Judy up from the

floor after she fell. According to Williamson, he noticed a spot of liquid on the

floor beneath a bag of chicken on Judy’s cart, and he also saw spots behind Judy’s

shopping cart “like a trail right where she had come from with the buggy.”

Williamson indicated that based on what he saw and on his examination of the bag

on Judy’s cart, he concluded the bag had an opening around the seam that allowed

the liquid in the bag to leak onto the store’s floor. According to Williamson, the

bag from Judy’s cart was leaking because “it wasn’t sealed completely.”

Williamson explained that he inspected the bag the day Judy fell, and he noticed

the bag had an opening in the top corner. Williamson removed the bag from Judy’s

cart and took it to the meat department. In his testimony, Williamson described the

opening that he saw as unlike any of the other holes he had seen in similar bags,

explaining that “the bag was open. It wasn’t a tear or a cut.” Williamson further

testified that at the time of Judy’s accident, Pilgrim’s was the store’s source for the

type of bag that was on Judy’s cart.

      Intending to replace the bag on Judy’s cart with another one located in the

meat department, Williamson brought the bag to the meat department. The meat
                                          3
department manager and his assistant, who were on duty when Judy fell, looked at

the bag. Both the meat department manager and his assistant testified during the

trial, and they indicated that the top corner of the bag was not sealed at the seam.

      Jamie Adams, Pilgrim’s corporate representative, described Pilgrim’s

inspection and quality assurance programs as they relate to the packaging of

chicken. According to Adams, Pilgrim’s intends to manufacture and distribute

chicken in bags that have complete seals, and he indicated that Pilgrim’s does not

allow unsealed bags to leave its packing facility. Adams described how bags

containing chicken are typically inspected before they are shipped. When Pilgrim’s

employees pack individual bags into the case that is filled with the packages to be

shipped, the employees responsible for packing the cases are supposed to look at

the individual bags as they are being packed and to remove any that contain

openings that might allow them to leak.

      Adams also described that Pilgrim’s has quality assurance inspectors who

are involved in the inspection process that provide a further inspection as part of its

process. The quality assurance inspectors are required to examine various bags in

some of the cases before a shipment leaves the packing facility. Adams agreed that

less than one percent of the individual bags that Pilgrim’s shipped receive a visual

inspection by one of Pilgrim’s quality assurance inspectors as part of the inspection

program carried out by the quality assurance employees.
                                          4
      Adams was also asked to express an opinion about the cause of the opening

in the bag on Judy’s cart. According to Adams, if the grocer’s manager and meat

manager accurately described the bag on Judy’s cart, the bag had “a bad seal.”

Nonetheless, Adams stated that his investigation into the matter indicated that the

packaging facility responsible for packing the cases of chicken around the date

Judy fell did not report any problems related to the integrity of the bags that were

shipped.

      Several witnesses, including Judy and her treating physicians, described the

treatment that Judy received following her fall. According to Judy, after the fall she

had undergone low back surgery and surgery to both of her knees due to symptoms

that she suffered after she fell. Judy indicated that as of the date of the trial, she

was having good and bad days with respect to the symptoms in her knees. With

respect to her back, Judy indicated that she is still having pain in the center of her

back, with spasms, but she also acknowledged that her symptoms had significantly

improved when compared to the symptoms she was suffering before her surgery.

According to Judy, at the present time she can no longer carry out the activities

that she enjoyed before she fell. Judy explained she was taking muscle relaxers,

medication for depression, and painkillers, when they were needed.

      Judy did not indicate that she intended to have further surgery; but, she did

state that her neurosurgeon told her on one of her visits that she “would probably
                                          5
or might have to have another surgery down the road.” Judy acknowledged during

the trial that she did not currently have an appointment with her neurosurgeon.

Additionally, Judy did not indicate how long she thought she might need to

continue to take the medicines that her doctors had prescribed for the symptoms

she described at the trial, nor did she state how long she expected that she would

continue to undergo physical therapy for the problems she was having with her

knees. Nevertheless, Judy indicated that she thought she would continue to

improve with therapy, and she did not testify that she had any plans to undergo

further surgery.

      While the testimony before the jury includes the testimony of the

neurosurgeon and the orthopedic surgeon who operated on Judy’s back and knees,

neither doctor was asked about Judy’s prognosis in any detail. Judy’s neurosurgeon

explained that in the future, Judy would be susceptible to having back strains. He

also testified that Judy might experience accelerated degeneration in the other discs

in her back, an event that could lead to further surgery. However, the neurosurgeon

was not asked to describe what type of surgery Judy might require if the condition

in her back deteriorated, he did not describe the type of surgery that he might

recommend if further degeneration in the spine occurred, he did not indicate during

his testimony what symptoms would lead him to recommend further surgery in

Judy’s case, nor did he explain what another surgery, if one proved to be
                                         6
necessary, might cost. Judy’s neurosurgeon was not asked whether he thought a

future surgery given Judy’s history would be probable, or whether such a surgery

would relate to the injuries she suffered in her fall.

      An orthopedic surgeon performed arthroscopic surgery on both of Judy’s

knees. He attributed both surgeries to Judy’s fall. He noted that during Judy’s last

visit, Judy had no significant swelling in her knees, she had a full range of motion

in her knees, and she related to him that she was having “minimal discomfort.” He

testified that Judy’s knee surgeries were successful, and he advised Judy to return

to him as needed. Judy’s orthopedic surgeon was also not asked to express an

opinion about whether he thought Judy would require further surgery for the

injuries that resulted from her fall at the store.

       A summary of Judy’s medical expenses was admitted into evidence during

the trial. The summary shows that Judy incurred approximately $80,000 in past

medical expenses, the majority of which relate to her three surgeries. When the

trial concluded, the jury found that Judy’s injuries were caused by a manufacturing

defect in the bag and the grocer’s negligence. The jury apportioned 65% of the

responsibility for Judy’s injuries to Pilgrim’s and 35% of the responsibility to the

grocer. The jury awarded Judy damages totaling $679,868. After reducing the

jury’s award to account for the grocer’s pretrial settlement, and after adding


                                            7
prejudgment interest and costs of court, the trial court awarded Judy the net sum of

$532,322 in its final judgment.

                                   Standard of Review

      We review sufficiency issues under established standards. Challenges to the

legal sufficiency of the evidence are either “no evidence” challenges or “matter of

law” challenges, depending on which party bore the burden of proof at trial. Raw

Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275 (Tex.

App.—Amarillo 1988, writ denied). In this case, Pilgrim’s attacks the legal

sufficiency of the evidence supporting findings on issues on which it did not have

the burden of proof. Therefore, it must show that no evidence supports the jury’s

findings to prevail on its legal sufficiency issues. See Exxon Corp. v. Emerald Oil

& Gas Co., L.C., 348 S.W.3d 194, 215 (Tex. 2011) (citing Croucher v.

Croucher, 660 S.W.2d 55, 58 (Tex. 1983)).

      Evidence supporting a verdict will be deemed legally sufficient to support

the verdict if the evidence admitted during the trial enabled “reasonable and fair-

minded people to reach the verdict under review.” City of Keller v. Wilson, 168

S.W.3d 802, 827 (Tex. 2005). In evaluating a legal sufficiency challenge, “we

credit evidence that supports the verdict if reasonable jurors could, and disregard

contrary evidence unless reasonable jurors could not.” Kroger Tex. Ltd. P’ship v.

Suberu, 216 S.W.3d 788, 793 (Tex. 2006) (citing City of Keller, 168 S.W.3d at
                                         8
827); Am. Interstate Ins. Co. v. Hinson, 172 S.W.3d 108, 114 (Tex. App.—

Beaumont 2005, pet. denied). We will sustain a legal sufficiency challenge “when,

among other things, the evidence offered to establish a vital fact does not exceed a

scintilla.” Suberu, 216 S.W.3d at 793. “Evidence does not exceed a scintilla if it is

‘so weak as to do no more than create a mere surmise or suspicion’ that the fact

exists.” Id. (citing Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004)).

      In reviewing Pilgrim’s factual sufficiency issues, the standard of review

requires that we “set aside the verdict only if it is so contrary to the overwhelming

weight of the evidence as to be clearly wrong and unjust.” Cain v. Bain, 709

S.W.2d 175, 176 (Tex. 1986). In determining whether the evidence is factually

sufficient to support the jury’s findings, we are to weigh all the evidence, both for

and against the finding. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.

2001).

                               Manufacturing Defect

      In issue one, Pilgrim’s challenges the legal and factual sufficiency of the

evidence supporting the jury’s finding that the bag on Judy’s cart was defective

when it left Pilgrim’s hands. According to Pilgrim’s, a bag that was not completely

sealed would not be unreasonably dangerous because the bag’s contents were

frozen at the point the bag left its hands. It also argues that the fact that openings

can exist in bags like the one used to package the chicken in this case was a matter
                                          9
of common knowledge. However, the jury rejected Pilgrim’s arguments on these

theories following the trial, answering the liability issue in Judy’s favor.

      In a manufacturing defect case, the jury must decide if a product is defective

and in an unreasonably dangerous condition at the time it was sold by the

defendant that it sued. “‘A manufacturing defect exists when a product deviates, in

its construction or quality, from the specifications or planned output in a manner

that renders it unreasonably dangerous.’” Cooper Tire & Rubber Co. v.

Mendez, 204 S.W.3d 797, 800 (Tex. 2006) (quoting Ridgway, 135 S.W.3d at 600);

see BIC Pen Corp. v. Carter, 346 S.W.3d 533, 540 (Tex. 2011). In cases alleging a

claim of a manufacturing defect, the plaintiff “must prove that the product was

defective when it left the hands of the manufacturer and that the defect was a

producing cause of the plaintiff’s injuries.” Ridgway, 135 S.W.3d at 600.

Additionally, the plaintiff must show that the defect in the product made the

product unreasonably dangerous. Carter, 346 S.W.3d at 540. In this case, the

charge explained to the jury that an unreasonably dangerous product is a product

“that is dangerous to an extent beyond that which would be contemplated by the

ordinary user of the product, with the ordinary knowledge common to the

community as to the product’s characteristics.”

      Both direct and circumstantial evidence may be used to establish that a

manufacturer sold a product with a manufacturing defect, and to establish that the
                                          10
product, with the defect, was unreasonably dangerous. See Ridgway, 135 S.W.3d at

601. However, the evidence that proves the product contained a manufacturing

defect when sold “must transcend mere suspicion.” Id. While no experts testified

during the trial about what caused the opening in the bag that was on Judy’s cart,1

there were lay witnesses who provided probative testimony that allowed the jury to

infer whether the manufacturer sold a bag without a complete seal. Given the

circumstantial nature of Judy’s case regarding the condition the bag was in when

Pilgrim’s sold it, we must determine whether the testimony before the jury

provided the jury with “a reasonable basis for concluding the injury would not

ordinarily have occurred absent a defect.” Shaun T. Mian Corp. v. Hewlett-

Packard Co., 237 S.W.3d 851, 862-63 (Tex. App.—Dallas 2007, pet. denied).

      Pilgrim’s argues that the evidence before the jury is insufficient to show that

the bag was defective when the bag left its hands, but it does not argue that the jury

could not have determined from the evidence that the bag had a bad seal. Pilgrim’s

contends that there are other possible explanations for the opening found in the bag

taken from Judy’s cart that do not indicate that the problem existed at the time the

bag was sold. However, a plaintiff is not required to exclude any chance that the

defect occurred after the product left the manufacturer’s hands; instead, “the

      1
       Pilgrim’s has not argued that the evidence is insufficient on the basis that no
expert witnesses testified in support of the plaintiff’s case during the trial.
Therefore, that question is not before us in this appeal.
                                         11
likelihood of other possible causes must be so reduced that the fact-finder could

reasonably find by a preponderance of the evidence that the cause of the product

failure lies at the manufacturer’s door.” Id. at 863. When circumstantial evidence is

used to show that the defect existed when the product left the manufacturer’s

hands, the evidence “must do more than raise the possibility the defective

condition could have existed at that time.” Id. Once the evidence indicates that the

other possibilities do not reasonably explain the reason for the defect, the jury is

free to resolve any conflicts in the evidence and to weigh any competing

evidence. See City of Keller, 168 S.W.3d at 819; see also Golden Eagle Archery,

Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).

      With these standards in mind, we turn to Pilgrim’s argument that the product

was not defective because the evidence at trial showed that bags like the one used

to package the chicken in this case are bags that are commonly known to leak. To

support this argument, Pilgrim’s relies on testimony at the trial that indicates the

grocer’s employees were aware that holes might be present in frozen bags of

chicken. The testimony of the grocer’s employees indicates that on occasions, they

had seen bags with chicken parts poking through them, bags with tears due to

normal handling, and bags that had been opened by customers of the store.

However, the difference between the opening in the bag taken from Judy’s cart and


                                         12
the openings the grocer’s employees observed previously tends to show the

opening was unrelated to the bag having been mishandled while at the store.

      Here, the grocer’s employees described the opening as an opening unlike the

types of holes they attributed in their experience to holes in bags that resulted from

the product being mishandled. All of the witnesses who saw that bag on the day

Judy fell described the leak as one that originated in a location on the bag where it

should have been sealed. Although the grocer’s employees indicated that they all

knew of the potential that bags containing meat could have holes in them if the bag

were to be mishandled, this evidence does not establish that the presence of an

opening in a bag due to its mishandling was a condition that was a matter of

common knowledge among the general public. Here, none of the grocer’s

employees addressed whether they thought their customers knew that bags in the

meat department were commonly known to leak. The grocer’s employees did not

describe the problem with leaking bags as one that was common.

      Additionally, there was evidence before the jury that tends to show that

problems with leaking bags would be uncommon. At trial, Pilgrim’s evidence

tends to show that its quality assurance program reduced the chance that a bag

would leave its facility with an opening or hole to a minimum. There was also

testimony by the grocer’s employees of the care they took to avoid displaying a

bag for sale to the store’s customers that contained holes. In summary, none of the
                                         13
testimony described that leaking commonly occurred in the types of bags used to

package the chicken that Judy intended to purchase the day she fell.

      The question of whether something is a matter of common knowledge

concerns information known by the public generally. See Coleman v. Cintas Sales

Corp., 100 S.W.3d 384, 386 (Tex. App.—San Antonio 2002, writ denied) (citing

Brune v. Brown Forman Corp., 758 S.W.2d 827, 831 (Tex. App.—Corpus Christi

1988, writ denied)). We conclude the record does not support Pilgrim’s argument

that the presence of holes or openings in the type of bag at issue was a condition

that was commonly known by the general public.

      Pilgrim’s also argues that the contents of the bag were frozen when it placed

the bag in the stream of commerce; it concludes the bag was not unreasonably

dangerous in that condition. See Houston Lighting & Power Co. v. Reynolds, 765

S.W.2d 784, 786-87 (Tex. 1998) (Luce, C.J., concurring) (noting that liability is

“‘limited to uses that are objectively reasonable to expect . . . it does not

encompass uses . . . which represent wholly unexpected product misuse’”).

      In this case, the testimony at trial indicates that the grocer’s decision to

display the bag in a cooler rather than a freezer was not, from Pilgrim’s

perspective, an unexpected use of the product. During the trial, one of Pilgrim’s

witnesses acknowledged that Pilgrim’s was aware that grocers sometimes used

coolers, not freezers, to display the frozen bags of chicken for sale. The evidence
                                        14
before the jury further indicates that the temperature of a cooler, if used, would

allow a frozen bag to slowly thaw. And, none of Pilgrim’s witnesses described the

grocer’s use of coolers to display the frozen bags as an abnormal or unexpected use

of its product. Based on the testimony in the record, the grocer’s use of the coolers,

which allowed the bag to partially thaw, did not constitute an unforeseeable misuse

of Pilgrim’s product as the change was neither one that was unexpected, nor was

the change substantial. See Rourke v. Garza, 530 S.W.2d 794, 799 (Tex. 1975)

(noting that “[t]he determination of whether a product is defective must be made in

light of the normal uses of the product; and where it is misused, strict liability does

not apply”), abrogated on other grounds by Ford Motor Co. v. Ledesma, 242

S.W.3d 32, 45-46 (Tex. 2007) (incorporating the term “substantial factor” into the

definition used in defining “producing cause”).

      We conclude that the arguments that Pilgrim’s raises in support of issue one

do not require us to reverse the jury’s verdict. See City of Keller, 168 S.W.3d at

810; Dow Chem., 46 S.W.3d at 242. We overrule issue one.

                                  Jury Instructions

      In issue three, Pilgrim’s contends the trial court abused its discretion by

refusing two of the instructions that it asked to be included in the charge. One of

these addressed Pilgrim’s claim that the grocer was guilty of spoliation for

throwing the bag away shortly after Judy fell. Pilgrim’s also complains that the
                                          15
trial court refused to submit an instruction to guide the jury on its claim that the

bag was substantially changed or altered by others after the bag left Pilgrim’s

control.

      The trial court discussed Pilgrim’s claim of spoliation with the attorneys for

the parties during the charge conference. During the conference, the trial court

stated that, in the court’s view, the evidence did not show that the employee who

threw the bag away knew at that time that Judy would file a claim seeking to be

compensated for her injuries. Given the testimony about the circumstances

regarding the bag’s destruction and what the grocer’s employees knew about

Judy’s injury at that time, the trial court concluded that the grocer was under no

duty to preserve the bag when one of its employees decided to throw the bag away.

      An abuse-of-discretion standard is used to determine whether a trial court

erred in refusing a party’s request to include an instruction in the charge.

Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 27 (Tex. 2014). As the party that

wanted the trial court to instruct the jury on its claim of spoliation, Pilgrim’s bore

the burden of establishing “that the nonproducing party had a duty to preserve the

evidence.” Id. at 20. “‘Such a duty arises only when a party knows or reasonably

should know that there is a substantial chance that a claim will be filed and that

evidence in its possession or control will be material and relevant to that claim.’”

Id. (quoting Wal-Mart Stores, Inc. v Johnson, 106 S.W.3d 718, 722 (Tex. 2003)).
                                         16
“[A] ‘substantial chance of litigation’ arises when ‘litigation is more than merely

an abstract possibility or unwarranted fear.’” Id. (quoting Nat’l Tank Co. v.

Brotherton, 851 S.W.2d 193, 204 (Tex. 1993) (internal citation and quotation

marks omitted)).

      Pilgrim’s argues that the severity of the accident was sufficient to place the

grocer on notice that Judy would pursue a claim. However, the record reflects that

after Judy fell, she declined Williamson’s suggestion that she get medical attention

because she did not think she needed any treatment at that time. The testimony

further reflects that Judy left the store without stating that she intended to sue or

file a claim. Given the lack of evidence to indicate the grocer was on notice that

Judy would later seek to recover for the injuries she suffered that day, the trial

court’s conclusion is reasonable, as it is based on the testimony showing the grocer

was not on notice on the day Judy fell that she would subsequently seek to recover

for the injuries she suffered that day. We conclude the trial court did not abuse its

discretion by refusing Pilgrim’s requested instruction on its spoliation claim. See

Johnson, 106 S.W.3d at 722 (explaining that “[b]efore any failure to produce

material evidence may be viewed as discovery abuse, the opposing party must

establish that the non-producing party had a duty to preserve the evidence in

question”).


                                         17
      Pilgrim’s also contends the trial court erred by refusing to instruct the jury

on its claim that the bag was substantially changed or altered after it left Pilgrim’s

hands. 2 According to Pilgrim’s, the evidence before the jury was sufficient to allow

the jury to infer that others altered the product by mishandling the bag, or to infer

that the product was changed because the contents of the bag had partially thawed.

In response, Judy argues the evidence did not require the trial court to instruct the

jury on substantial change because the evidence does not show that the opening in

the bag occurred because the bag was mishandled. Judy also contends that the

grocer’s display of the bag in a cooler was a foreseeable use of Pilgrim’s bags.

      None of the witnesses that saw the bag after Judy fell described the opening

in the bag as consistent with a tear or a hole created by the chicken in the bag or as

one caused by the manner the bag was handled after the date that Pilgrim’s sold it.

There was also no testimony to show that before the bag was placed on Judy’s cart,

that the bag had been handled by other customers in the store. Importantly,

Pilgrim’s corporate representative indicated that given the description of the

opening in the bag, he thought the bag had “a bad seal.” Pilgrim’s witnesses did

      2
       Pilgrim’s asked the trial court to submit an instruction on substantial change
consistent with PJC 70.6, an instruction that the committee on pattern jury charges
recommends be given when the elements of substantial change or alteration are
raised by the evidence. Comm. on Pattern Jury Charges, State Bar of Tex., Texas
Pattern Jury Charges: Malpractice, Premises & Products PJC 70.6 (2012); see
also Fed. Pac. Elec. Co. v. Woodend, 735 S.W.2d 887, 892 (Tex. App.—Fort
Worth 1987, no writ).
                                         18
not testify that an opening like that described by the testimony before the jury was

likely due to the actions taken by people who handled the bag after the bag left its

hands. In this case, the testimony allowed the jury to infer to a reasonable degree

of probability that the problem with the bag originated with its manufacture, and

the testimony regarding the cause of the opening did not suggest that these other

possibilities were plausible to explain the opening in the bag involved in Judy’s

case.

        We have previously described the testimony related to Pilgrim’s knowledge

that some grocers displayed Pilgrim’s frozen chicken in coolers. We are not

persuaded that the thawing of the contents in the bag constituted a substantial

change in the bag’s condition. We further hold the trial court did not abuse its

discretion in refusing to submit Pilgrim’s requested instruction regarding it claims

that the product was substantially changed or altered. See Comm. on Pattern Jury

Charges, State Bar of Tex., Texas Pattern Jury Charges: Malpractice, Premises &

Products PJC 70.6 (2012) (indicating that a substantial change occurs if the seller

could not have reasonably foreseen that the change to its product would occur in

the intended or foreseeable use of the product).

        We overrule issue three.




                                         19
                                   Future Medical

      In issue two, Pilgrim’s challenges the legal and factual sufficiency of the

evidence supporting the amount the jury awarded to Judy, $50,000, to compensate

her for her future medical expenses. According to Pilgrim’s, the evidence before

the jury did not show that Judy will require any further treatment or that she will

require any additional surgeries. While Pilgrim’s acknowledges that Judy was

being prescribed pain medication at the time of the trial, it asserts that “[n]o one

testified about future medical expenses in any concrete fashion.” Pilgrim’s

concludes that “[w]ithout a future surgery, medication seemed to be all that was in

[Judy’s] future, and past medical expenses for medication was less than $300.”

Pilgrim’s does not explain why the jury could not reasonably render some

additional award to compensate Judy for the expenses she was having in physical

therapy, therapy that was ongoing as of the date of the trial.

      Under Texas law, a plaintiff seeking to recover for future medical expenses

must show that the additional medical expenses, within a reasonable degree of

probability, are likely to be incurred. Antonov v. Walters, 168 S.W.3d 901, 908

(Tex. App.—Fort Worth 2005, pet. denied). Usually, a plaintiff proves that she will

have future medical expenses through expert testimony, which is used to establish

the amount of the additional medical expenses the plaintiff will be required to

incur. Id. Nevertheless, expert testimony is not a necessity if there is other
                                          20
testimony in the record sufficient to allow the jury to project the amount of the

plaintiff’s additional expenses to a degree of reasonable probability. Id.

         In evaluating the legal sufficiency of the evidence of an award for future

medical expenses, and in the absence of the testimony of a doctor addressing the

plaintiff’s future medical needs, courts evaluate whether the other testimony

addressing the plaintiff’s future expenses is sufficient to demonstrate that the

plaintiff will probably need additional medical care. In considering a legal

sufficiency challenge, courts generally consider testimony that describes the

severity of the plaintiff’s injury, the amount of medical expenses related to the

injury that the plaintiff incurred before the trial, and the testimony that addresses

the plaintiff’s medical condition at the time of trial. See id. In this case, Pilgrim’s

acknowledged in its brief that the record supports Judy’s claim that she still needed

pain medication as of the date of the trial. We also think the evidence supports the

jury’s decision to award Judy some amount to compensate her for the physical

therapy treatments that were prescribed by her orthopedic surgeon to assist her

recovery following surgery. Because the evidence before the jury shows that Judy

will probably incur additional medical expenses due to the injuries she suffered

from her fall, we overrule Pilgrim’s issue to the extent that it argues that there is

legally insufficient evidence to support the jury’s award on this element of Judy’s

claim.
                                          21
      Pilgrim’s also argues that the evidence is not factually sufficient to support

the full amount the jury awarded to Judy to compensate her for the medical

expenses that she will incur. A factual sufficiency standard is used in determining

whether an award for future medical expenses is excessive. Pope v. Moore, 711

S.W.2d 622, 624 (Tex. 1986). In reviewing the jury’s award under a factual

sufficiency standard, we review the evidence in the light most favorable to the

jury’s verdict. See City of Keller, 168 S.W.3d at 827. When the evidence at the trial

supports a range of damages, “an award within that range is an appropriate

exercise of the jury’s discretion, and a reviewing court is not permitted to speculate

on how the jury actually arrived at its award.” Drury Sw., Inc. v. Louie Ledeaux #1,

Inc., 350 S.W.3d 287, 292 (Tex. App.—San Antonio 2011, pet. denied).

      In this case, while some evidence shows Judy will probably need to purchase

additional pain medication like the medication she was taking at the time of trial,

and that she will incur additional expense for her physical therapy treatments, the

evidence was not sufficiently developed to establish that, within reasonable

probability, Judy will incur an additional $50,000 in such expenses. In her brief,

Judy has not explained how the evidence demonstrates to a degree of reasonable

probability that additional medications and additional therapy will result in her

spending an additional $50,000. And, the evidence does not show that Judy will

probably need further surgery. Judy’s physicians were not asked to provide their
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opinions regarding what Judy’s future medical needs might be, nor were they

asked whether further surgery will probably be required. The testimony indicating

that Judy might require another surgery if she suffers further degeneration is too

speculative to allow the jury to include such an expense in its award because there

is no testimony relating the additional surgery to the injuries Judy suffered in her

fall and no testimony showing that Judy will probably incur further degeneration in

her back. Additionally, the evidence before the jury does not include testimony

establishing an expected range of expenses Judy would likely incur. Absent

evidence describing that a further surgery was probable, identifying what such a

surgery might cost, or evidence showing that Judy’s pain medications and

additional doctor’s visits will probably result in Judy incurring an additional

$50,000 in expense, the jury’s award of $50,000 cannot withstand Pilgrim’s factual

sufficiency challenge on appeal.

      While Judy cites cases in her brief in support of her argument that the jury’s

award of $50,000 for her future medical expenses should be affirmed, the cases on

which she relies describe evidence of records that included testimony related to the

plaintiff’s future medical needs that were significantly more developed than the

record that is before us here. For example, in Saeco Elec. & Util., Ltd. v. Gonzales,

392 S.W.3d 803, 808-09 (Tex. App.—San Antonio 2012, pet. granted, judgm’t

vacated by agr.), the evidence included testimony from several experts regarding
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Gonzales’s need for future medical care, including testimony that showed what

such care would likely cost. The opinion further indicates the testimony established

the costs of the various procedures that the plaintiff would likely require over his

lifetime. Id. at 809. There is no similar evidence in Judy’s case. In City of Laredo

v. Limon, No. 04-12-00616-CV, 2013 WL 5948129, at **4-5 (Tex. App.—San

Antonio Nov. 6, 2013, no pet.) (mem. op.), the evidence before the jury included

testimony from an expert about the plaintiff’s future medical needs, and the record

included testimony about what the plaintiff’s surgery would likely cost. In contrast,

in this case, the evidence before the jury does not show that Judy will be required

to undergo further surgery.

        “If part of a damage verdict lacks sufficient evidentiary support, the proper

course is to suggest a remittitur of that part of the verdict.” Larson v. Cactus Util.

Co., 730 S.W.2d 640, 641 (Tex. 1987); see also Tex. R. App. P. 46.3. Because the

evidence in this case justifies some award of future medical expenses but is

insufficient to support the jury’s $50,000 award, we must decide the maximum

amount the jury could reasonably award based on the record before us in Judy’s

case.

        In considering the maximum amount the jury could have awarded, we note

that during closing argument, Pilgrim’s suggested to the jury that Judy should be

awarded $20,000 to compensate her for her future medical expenses. See
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International Piping Sys., Ltd. v. M.M. White & Associates, Inc., 831 S.W.2d 444,

449 (Tex. App.—Houston [14th Dist.] 1992, writ denied) (“A party is estopped to

complain of any error which occurred at his request.”). Given the argument that

Pilgrim’s made at trial, Pilgrim’s could not have complained about the jury’s

award had the jury awarded $20,000 or less on the future medical element of

Judy’s claim. Id. We conclude the maximum amount that finds support in the

record on the challenged element of Judy’s award is $20,000.

                                     Conclusion

      We hold that legally and factually sufficient evidence supports the jury’s

finding of a manufacturing defect, and that the trial court did not err in refusing the

instructions that Pilgrim’s asked to be included in the jury charge. We further hold

that while the evidence is legally sufficient to support the jury’s decision to award

Judy some amount on her claim that she would incur future medical expenses, the

evidence is factually insufficient to support the jury’s finding that she will

probably incur an additional $50,000 in such expenses. Therefore, we affirm the

judgment of the trial court with respect to the products liability finding and the

damage awards, conditioned on Judy’s remitting the jury award on future medical

to the sum of $20,000. If Judy accepts the remittitur that we have suggested within

fifteen days of the date of this opinion, we will affirm the trial court’s judgment, as

reformed. See Tex. R. App. P. 46.3, 46.5. If, however, Judy fails to timely file the
                                          25
suggested remittitur, we will reverse the trial court’s judgment and remand this

cause in its entirety for a new trial. See id.; Comstock Silversmiths, Inc. v. Carey,

894 S.W.2d 56, 58 (Tex. App.—San Antonio 1995, no writ) (suggesting that

plaintiffs accept a remittitur in the amount the jury awarded for mental anguish

damages).

      AFFIRMED CONDITIONALLY.



                                              ________________________________
                                                       HOLLIS HORTON
                                                           Justice


Submitted on October 15, 2014
Opinion Delivered February 26, 2015

Before McKeithen, C.J., Kreger and Horton, JJ.




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