                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                         In the United States Court of Appeals                          January 11, 2007
                                 for the Fifth Circuit
                                                                                    Charles R. Fulbruge III
                                                                                            Clerk
                                          No. 05-50460
                                        Summary Calendar


SALOME FIERROS,

               Plaintiff - Appellant,

v.

TEXAS DEPARTMENT OF HEALTH; ET AL.,

               Defendants,

TEXAS DEPARTMENT OF HEALTH

               Defendant - Appellee.



                         Appeal from the United States District Court
                             for the Western District of Texas
                                     No. 5:99-CV-1448



Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

       The plaintiff in this case, Salome Fierros, sued the Texas Department of Health

(TDH) for retaliation in violation of Title VII. Fierros rejected TDH’s offer of judgment for


       *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
$7,500 plus costs and attorney’s fees. In an earlier appeal, this court reversed summary

judgment in TDH’s favor, holding that Fierros stated an actionable claim of retaliation.1 On

remand, TDH stipulated liability, and the case proceeded to a jury trial on compensatory

damages. The jury awarded Fierros $5,000 for mental pain and emotional distress and $2,880

for “out-of-pocket expenses.” The district court dismissed the claim for out-of-pocket

expenses on motion by TDH, which claimed that Fierros failed to plead for out-of-pocket

expenses and failed to show that the expenses were medically reasonable and necessary. The

district court also denied Fierros’s motion for attorney’s fees because the judgment Fierros

obtained was less than TDH’s pre-judgment offer.2

       On appeal, Fierros challenges the district court’s order denying attorney’s fees,

concluding that the district court erred in calculating the judgment obtained for purposes of

determining whether she was entitled to attorney’s fees. Specifically, Fierros complains:

(1) the compensatory damages award may have been higher if the district court had not

limited trial testimony about retaliatory disciplinary actions TDH took; (2) the district court

erroneously denied her recovery for out-of-pocket expenses; and (3) the district court failed

to include pre-offer attorney’s fees and costs in determining the amount of the judgment

obtained for purposes of Rule 68, which bars recovery of attorney’s fees when the judgment

obtained is less than a pre-judgment settlement offer.3 Fierros concedes that if she does not

       1
        Fierros v. Tex. Dep’t of Health, 274 F.3d 187 (5th Cir. 2001).
       2
        See FED. R. CIV. P. 68.
       3
        Id.

                                               2
prevail on the first or second issue we need not consider the third issue because the judgment

obtained will be less than the pre-offer judgment regardless of whether pre-offer attorney’s

fees and costs are considered to be part of the judgment obtained for the purposes of a Rule

68 comparison.

       In retaliation for filing an EEOC complaint, TDH deprived Fierros of a merit pay

increase and subjected her to disciplinary counseling sessions. In our prior decision in this

case, we stated that the disciplinary counseling sessions could be used to prove a retaliatory

motive.4 On remand, TDH stipulated to liability, and the case proceeded to trial only on

damages. Before the trial, the court asked Fierros about evidence to be submitted. In an

informal discussion the district court told Fierros that she could not use evidence of the

counseling sessions because there was no need to prove a retaliatory motive, and Fierros

agreed. Fierros did not seek a definitive ruling or provide a detailed offer of proof explaining

what evidence she would seek to prove during trial. Fierros now complains that evidence

of the counseling sessions is pertinent to her compensatory damages. Because there was no

definitive ruling on the exclusion of evidence regarding the counseling sessions and because

Fierros failed to make an offer of proof, Fierros did not adequately preserve any error.5

       Fierros also appeals the district court’s failure to award the out-of-pocket expenses

found by the jury. TDH argued that Fierros failed to plead for out-of-pocket expenses and

failed to prove that the expenses were medically reasonable and necessary. The district court


       4
        Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 196 (5th Cir. 2001).
       5
        See FED. R. EVID. 103.
                                               3
held that even if Fierros’s claim for out-of-pocket expenses was supported by the pleadings,

Fierros failed to present sufficient evidence.

       We review the district court’s grant of a motion for judgment as a matter of law de

novo.6 We apply federal standards of review to assess the sufficiency or insufficiency of the

evidence in relation to the verdict, but in doing so we refer to state law for the evidence that

“must be produced to support a verdict.”7 To recover out-of-pocket medical expenses in

Texas, a plaintiff must present evidence that the expenses incurred were reasonable and

necessary.8 Mere testimony from the plaintiff alone is not enough.9

       At trial, Fierros testified that she had spent approximately $1,200 on co-payments for

three prescription medications as well as between $20 and $30 a month in co-payments for

psychiatrist and physician visits. On cross-examination, however, Fierros admitted that two

of the three prescriptions were for conditions that predated the retaliatory actions and were

unrelated although allegedly exacerbated. Fierros also admitted that an unknown number of

the physician visits were due to recurring allergies and sinus infections and that an unknown

number of the psychiatrist visits were for an unrelated incident involving her sister. Other

than her own testimony, Fierros did not present any evidence of the out-of-pocket expenses

she allegedly incurred, and she submitted no evidence that the expenses incurred were


       6
        Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1042 (5th Cir. 1998).
       7
         Hamburger v. State Farm Mut. Ins. Co., 361 F.3d 875, 884 (5th Cir. 2004) (quoting Ayres
v. Sears, Roebuck & Co., 789 F.2d 1173, 1175 (5th Cir. 1986)).
       8
        Id. at 884.
       9
        Id.
                                                 4
reasonable or necessary. Even if Fierros’s pleadings requesting “other and further relief as

the Court may deem just and proper” are a sufficient prayer for out-of-pocket expenses, a

question we need not decide, Fierros failed to submit evidence that the expenses incurred

were medically reasonable or necessary.

       Because Fierros has not prevailed on the first two issues, we do not consider Fierros’s

argument that her pre-offer attorney’s fees and costs should have been included in the

judgment for purposes of a Rule 68 comparison. Thus the district court’s judgment is

affirmed in all aspects.

       AFFIRMED.




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