Opinion issued May 11, 2017




                                    In The

                              Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-16-00149-CV
                          ———————————
             AMIGOS MEAT DISTRIBUTORS, L.P., Appellant
                                      V.
    JULIAN GUZMAN AND CATHERINE MICHELE MONTEJANO,
                        Appellees


                  On Appeal from the 295th District Court
                           Harris County, Texas
                     Trial Court Case No. 2013-25098


                                OPINION

      This is an appeal from an award on a jury verdict in favor of an employee

against his non-workers’ compensation subscriber employer.
                                 BACKGROUND

      Appellee Julian Guzman went to work as a truck driver for appellant

Amigos Meat Distributors in 2008. As part of his job, he had to lift and carry

frozen animal carcasses. In May 2011, Guzman was injured lifting a 175-pound

frozen cow carcass. He and his wife, appellee Catherine Montejano, sued Amigos,

a worker’s compensation non-subscriber.

      The jury found that Amigos’s negligence proximately caused Guzman’s

injury, and awarded to him $287,809.94 in past medical expenses, $150,000 in past

pain and mental anguish, and $150,000 in past physical impairment. The trial court

entered judgment on that verdict.

      Amigos does not challenge the jury’s negligence finding on appeal. It

challenges the damages findings, however, contending that (1) the medical

expenses awarded are not supported by legally sufficient evidence of causation,

and (2) Guzman was impermissibly awarded more damages than those “paid or

incurred.”   Amigos also asserts Guzman’s attorney made improper statements

during closing argument appealing to the jury’s prejudices against a corporate

employer in favor of a worker, introducing incurable error into the trial.

      We affirm.




                                          2
                             MEDICAL EXPENSES

      On May 6, 2011, Guzman’s supervisor, Humberto Arellano, told Guzman to

unload three frozen cow carcasses from an 18-wheeler truck. Guzman followed the

procedure he learned from watching others at Amigos, i.e., he wrapped his arms

around the carcass, lifted it upward off the hook suspending it from the ceiling,

shifted the carcass onto one shoulder, walked off the truck, bent over while

turning, and laid the carcass down.      Guzman lifted and carried the first two

carcasses without incident. As he started to lift the third carcass, which bore a tag

indicating it weighed 175 pounds, off the hook, Guzman “felt something like snap,

pain and burning sensation in [his] lower back.” He testified that the pain in his

lower back was immediate. He began walking with the carcass, still feeling a

burning sensation in his lower back. Then his legs started to give way, “like

gelatin or something,” and he dropped the carcass.

      Guzman testified that Arellano had witnessed this incident, and Guzman told

him, “I think I hurt myself. I can’t feel my legs.” Guzman dropped to the ground,

and Arellano had to help him load the last carcass onto a pallet. Despite Guzman

telling Arellano that he was injured, and that he could not shake it off, Arellano

told Guzman that he needed to go make his deliveries.         Amigo then assigned

Guzman a helper, a young teenager. The helper was small and unable to do most

of the lifting, so Guzman was expected to continue doing so himself.


                                         3
      Before his May 6, 2011 injury, Guzman had never experienced any

problems with his back and had never been injured at work. Guzman’s wife

Montejano testified that, on the evening of May 6, Guzman came home from work

in pain. The following day, he could not get out of bed without his brother’s help.

His family took him to see Dr. Arango, a chiropractor. Arango’s records contain

the following notes:

      During the initial consultation, Mr. Julian Guzman stated that he
      injured his low back secondary to a work-related injury which took
      place on 5/6/11. The patient reports that he lifted a steer carcass and
      experienced low back pain. At the moment he felt he was going to
      collapse due to pain, the patient reported it to his supervisor and was
      asked to only drive along with a helper. Mr. Guzman finished the day
      worse and went home. Today he decided to seek care in our clinic.
             ....


      From the evaluation of Mr. Guzman’s history, subjective complaints
      and the objective findings from orthopedic, neurologic and
      radiographic examinations, it is evident from a chiropractic viewpoint,
      that this type of injury would have resulted from the type of work
      related injury this patient suffered on 05/06/11.
      Arango provided Guzman with a disability certificate that day, which stated

he was “totally incapacitated.”      Guzman presented that at work.      Francisco

Moreno, Amigos’s manager or owner, told Guzman to call when he needed

anything, and that he “was one of the best workers there so they were going to take

care of” him.       On May 11, 2011, Arango reclassified Guzman as “partially

incapacitated,” and indicated that he was restricted to light duty.


                                           4
      Because Arango thought Guzman might recover with conservative

chiropractic care, Guzman had his back injury treated with physical therapy,

chiropractic care, and epidural steroid injunctions. He did not get better, and began

to get overwhelmed by the constant doctor’s appointments. He had to take pain

medications three times a day.

      True to its promise, Amigos paid Guzman’s medical bills for the first three

months after his injury. Amigos discontinued payments in August 2011. Amigos

did not let Guzman know, but refused payment to Dr. Chanani, his pain

management doctor for several scheduled spinal injections.

      When Guzman visited Amigos’s office in August 2011, Amigos’s

management showed him a video, obtained by a private investigator, of Guzman

carrying a laundry basket. Amigos then told him that they would no longer pay his

medical bills and terminated his employment. Both Guzman and his wife testified

that he had carried the laundry basket because his doctor had ordered him to try

walking for five or ten minutes per day and ease into lifting.

      For the next two years, Guzman regularly went to Ben Taub Hospital and

various doctors. At one point, Ben Taub placed him on suicide watch after he

reported, “I can’t bear the pain. I just want to kill myself.” Montejano, Guzman’s

wife, testified that Guzman was constantly in pain after his May 6, 2011 injury.




                                          5
He was diagnosed with depression, constantly took prescription pain pills, and

ceased his daily involvement with their children.

      On October 30, 2013, Guzman first visited Doctor Reynolds, a surgeon

Guzman was referred to by another doctor who believed Guzman might require

surgical intervention.    Reynolds discussed with him his options and possible

outcomes for each.       Reynolds did not recommend Guzman first pursue more

conservative, non-surgical treatments because Guzman had already tried the things

Reynolds would recommend, i.e., physical therapy and steroid injections. Although

Guzman was hesitant, he ultimately opted to have surgery. Reynolds testified that

Guzman and his wife expressed that they were both concerned about how his pain

was affecting his psyche and life, and he wanted to return to work.

      On May 8, 2014, Reynolds performed surgery, described as discectomy and

a fusion with some placement of hardware, at Guzman’s L4-5 disc. When asked

about the causal links between Guzman’s workplace injury, his back pain, and the

need for surgery, Reynolds testified—based on a reasonable medical probability—

that the May 6, 2011 injury caused Guzman a significant amount of pain that

persisted. He also testified that, based on the MRI images he reviewed, Guzman

had some preexisting damage to the L4-5 disc. While it is impossible to tell from

MRI imaging when and how the damage to Guzman’s disc was caused, Reynolds

noted that, based on Guzman’s medical history, any preexisting damage was


                                         6
asymptomatic. Thus, Reynolds opined that the May 6, 2011 lifting injury caused a

symptomatic injury and caused the ongoing pain that persisted after that date.

      Guzman was told that his activities would be restricted for about eighteen

months, but he testified that he felt better almost immediately post-surgery. He

was able to walk without the assistance of a cane for the first time since being

injured. Within a month, he went to work at a Subway sandwich restaurant, which

he was still doing at the time of the September 2015 trial. While he still had

lingering issues, such as not being able to stand for too long and not being able to

bend down to tie his shoes, Guzman testified that his life was greatly improved.

A.    Causation

      The judgment awards Guzman $287,809.94 in past medical expenses. In its

first issue, Amigos contends that these expenses were “unrecoverable as a matter

of law” because Guzman “fail[ed] to provide the requisite causation evidence.”

      1.    Applicable Law and Standard of Review

      “To establish causation in a personal injury case, a plaintiff must prove the

defendant’s conduct caused an event, and that event caused the plaintiff to suffer

compensable damages.” Hospadales v. McCoy, No. 01-16-00239-CV, __ S.W.3d

__, __, 2017 WL 117327, at *8 (Tex. App.—Houston [1st Dist.] Jan. 12, 2017, no

pet.) (citing Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)).

The causal link between the event sued upon and the plaintiff's injury must be


                                         7
shown by competent evidence. Guevara v. Ferrer, 247 S.W.3d 662, 666 (Tex.

2007). “The causal connection between a defendant’s negligence and a plaintiff’s

injuries cannot be based on mere conjecture, speculation, or possibility.”

Hospadales, __ S.W.3d at __, 2017 WL 117327, at *8 (citing Park Place Hosp. v.

Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995)).        When a plaintiff claims

damages for a medical condition, the cause of which is not within the common

knowledge and experience of jurors, expert testimony is necessary to show the

defendant’s conduct caused that condition. JLG Trucking, LLC v. Garza, 466

S.W.3d 157, 162 (Tex. 2015).

      To constitute evidence of causation, a medical expert’s opinion must rest in

reasonable medical probability. Crye, 907 S.W.2d at 500; LMC Complete Auto.,

Inc. v. Burke, 229 S.W.3d 469, 478 (Tex. App.—Houston [1st Dist.] 2007, pet.

denied). However, a plaintiff, “is not required to establish causation in terms of

medical certainty nor is he . . . required to exclude every other reasonable

hypothesis.” Bradley v. Rogers, 879 S.W.2d 947, 954 (Tex. App.—Houston [14th

Dist.] 1994, writ denied). “Whether expert testimony on causal connection rests

upon reasonable medical probability must be determined by the substance and

context of the testimony rather than semantics or use of a particular term or

phrase.” Thompson v. Stolar, 458 S.W.3d 46, 57 (Tex. App.—El Paso 2014, no

pet.) (citing Crye, 907 S.W.2d at 500).


                                          8
      Evidence is legally sufficient if it “would enable reasonable and fair-minded

people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d

802, 827 (Tex. 2005). We will conclude that the evidence is legally insufficient to

support the finding only if (a) there is a complete absence of evidence of a vital

fact, (b) the court is barred by rules of law or evidence from giving weight to the

only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital

fact is no more than a mere scintilla, or (d) the evidence conclusively establishes

the opposite of the vital fact. Id. at 810. When reviewing the legal sufficiency of

the evidence, we consider the evidence in the light most favorable to the verdict

and indulge every reasonable inference to support it. Id. at 822. We credit

favorable evidence if a reasonable juror could and disregard contrary evidence if a

reasonable juror could not. Id. at 827.

      2.     Analysis

      Amigos argues that Guzman “failed to supply the evidence necessary to

create the required causal connection between those surgery-related, 2014 medical

expenses awarded, and the 2011 incident sued upon.” It focuses on excerpts from

Dr. Reynolds’s deposition, which was not introduced into evidence but attached to

Amigo’s motion for new trial, stating that Guzman likely had a preexisting back

condition that necessitated surgery.




                                          9
      Preliminarily, Guzman responds with the observation that excerpts from

Reynolds’s deposition upon which Amigos relies upon was not entered into

evidence, and that Amigos has not complained about its exclusion on appeal.

Guzman also contends that Amigos’s causation argument does not comport with

the applicable standard of review, as Amigo ignores Reynolds’s trial testimony that

sufficiently demonstrated a causal link between Guzman’s 2011 injury and his

2014 surgery. Finally, Guzman points out that (1) Reynolds operated to address

Guzman’s pain, not his preexisting asymptomatic disc degeneration, (2) Reynolds

testified that Guzman’s back pain was caused by his workplace lifting injury, and

(3) under Texas law, medical expenses caused by injury aggravation of a

preexisting condition are compensable. We agree with Guzman that he presented

sufficient evidence of causation.

      As Guzman notes, Amigos’s brief focuses on Reynolds’s statements about

MRI film of Guzman’s back from different periods indicating that Reynolds could

not determine when Guzman’s disc degeneration had taken place. Importantly,

though, Reynolds testified that Guzman’s medical history largely informed his

causation opinion that whatever preexisting condition existed before May 6, 2011

was asymptomatic, and that, immediately after the May 6, 2011 injury, Guzman

suffered constant and severe pain until it was remedied by his back surgery.




                                        10
      We recently considered, and rejected, a causation argument similar to

Amigos’s. In Hospadales v. McCoy, the defendant argued that the evidence was

insufficient to establish that plaintiff’s back and neck injuries were caused by a

2013 automobile accident at issue rather than by a 2010 automobile accident. ___

S.W.3d at __, 2017 WL 117327, at *3–4. The defendant relied heavily on the fact

that the “MRIs taken of [plaintiff’s] back and neck, following the 2010 accident,

showed essentially the same injuries as those indicated in the MRIs taken

following this [2013] accident.” Id. The plaintiff, however, testified that he had

recovered from his injuries from the 2010 accident before the 2013 accident, and

that it was the 2013 accident that caused the pain that caused him to have surgery.

Id.

      Plaintiff’s expert in Hospadales, Dr. Rodriguez, testified that, “based on a

reasonable degree of medical probability, the 2013 accident aggravated [plaintiff’s]

preexisting injuries in his lower back and neck.”       Id.    We concluded that

Rodriguez’s causation opinion, based largely on the asymptomatic nature of

plaintiff’s preexisting condition prior to the 2013 accident—in conjunction with

plaintiff’s testimony about the 2013 accident and the pain he suffered only

afterwards—was sufficient to establish causation:

      Rodriguez reviewed [plaintiff’s] past medical records relating to his
      back and neck injuries. These included the MRI report related to the
      back and neck injuries [plaintiff] sustained in the 2010 accident. Dr.
      Rodriguez acknowledged that the MRI findings from 2013 indicated
                                        11
      nearly the same injuries as the 2010 MRI. However, Dr. Rodriguez
      explained that “we don’t treat MRIs.” He continued, “The MRIs are
      done to help us rule out problems or be assertive of diagnosis, but we
      always treat the patient.” Dr. Rodriguez testified that [plaintiff] was
      “asymptomatic before this accident and his symptoms are the ones
      that objectively indicates that he has an aggravation of a previous
      injury based on the MRIs.” In other words, Dr. Rodriguez testified
      that, while MRIs are used as a diagnostic tool, what the patient reports
      is also important in diagnosing and treating a patient.

      Here, [plaintiff] reported that, before the 2013 accident, he was no
      longer experiencing any back or neck problems from the 2010
      accident. However, after the 2013 accident, McCoy reported
      experiencing back and neck pain. This indicated to Dr. Rodriguez that
      the report of new symptoms following the 2013 accident supports the
      conclusion that the accident aggravated McCoy’s previous injuries
      from 2010.
      ....

      We therefore hold that Dr. Rodriguez’s causation testimony was
      legally sufficient.

Id.

      The Fourteenth Court of Appeals also recently considered, and rejected, an

argument essentially identical to Amigos’s here.             In Katy Springs &

Manufacturing, Inc. v. Favalora, the plaintiff suffered an on-the-job injury that he

testified caused long-term chronic neck pain and numbness in his arm. 476 S.W.3d

579, 587 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). Similar to

Guzman’s testimony here, the plaintiff in Favalora explored conservative

treatments for his pain, including epidural steroid injections, and prescription pain

medications. See id. Finally, almost three years after the injury, the plaintiff in


                                         12
Favalora had back surgery. See id.       A jury awarded him damages from his

employer, a non-subscriber to workers’ compensation insurance. Id. On appeal,

his employer argued that the evidence of causation was legally insufficient and that

the plaintiff’s injuries were preexisting. Id. at 587, 591–92. The Fourteenth Court

of Appeals disagreed, concluding that—assuming expert causation testimony was

required—the plaintiff’s doctor’s testimony opining that the workplace incident

aggravated a preexisting condition in his neck “which caused it to become

systematic” was legally sufficient:

      To the extent Katy Springs argues that expert testimony was necessary
      to establish causation, we disagree. . . . Here, prior to the accident,
      [plaintiff] was able to do manual labor. He was able to participate in
      athletic endeavors, such as volleyball, swimming, and working out.
      He was essentially pain free. After the accident he suffered
      excruciating pain and had to undergo spinal surgery that fused several
      of his vertebrae. . . . On this record, the jury could have concluded
      without expert testimony that the injuries [plaintiff] suffered were
      caused by Katy Springs’ negligence.
      ....
      Moreover, contrary to Katy Springs’ assertions, the jury’s finding on
      causation is supported by expert medical evidence. Dr. Bartholomew
      testified by video deposition. During his testimony the following
      exchange occurred:
             [Q.] Do you believe that [plaintiff], based on what he’s told
             you, was injured at that time?
             [A.] Yes, sir.
             [Q.] Based on reasonable medical probability, what is your
             opinion on what injuries Joseph sustained—injuries or
             conditions as a result of that incident [at Katy Springs]?
             ...

                                        13
             [A.] As far as the cervical spine, I think he had an aggravation
             of a preexisting condition in his neck which caused it to become
             symptomatic.
      This expert testimony is legally sufficient to support the trial court’s
      judgment.
Id. at 591 (citing Wal–Mart Stores Tex., LP v. Crosby, 295 S.W.3d 346, 352–53

(Tex. App.—Dallas 2009, pet. denied) (doctor’s testimony that defendant’s

negligence resulted in an aggravation of a preexisting condition was legally

sufficient to support the trial court’s findings on causation)).

      Similar to the evidence in Hospadales and Favalora, in this case, the

evidence reflects that—to the extent Guzman suffered from a degenerative back

condition before his May 6, 2011 workplace injury—that condition was

asymptomatic. Guzman testified that he experienced immediate back pain while

lifting a heavy carcass at work, and continued to suffer severe pain after that until

he had back surgery in 2014. He had never had back problems before May 6,

2011. This testimony is consistent with his wife’s testimony and the medical

history in his medical records, including the history taken by his chiropractor

Aarando on May 7, 2011—one day after he was injured. Guzman’s surgeon

Reynolds testified that he recommended surgery because of the debilitating pain

Guzman begin experiencing with his lifting injury, pain that he had not been able

to alleviate with more conservative treatments. We conclude that legally sufficient

causation evidence links the 2011 injury to Guzman’s 2014 surgery. Thus, there is

                                           14
legally sufficient evidence to support the award of medical expenses related to

Guzman’s back surgery.

      We overrule Amigos’s first issue.

B.    Medical Expenses

      In its second issue, Amigos argues that the trial court erred by “permitting

admission of certain alleged medical expenses in excess of those actually ‘paid or

incurred’ in violation of CPRC § 41.0105.” The trial court admitted evidence of

the past medical expenses totaling $287,809.94, and the jury awarded Guzman that

amount. According to Amigos, this amount is artificially inflated because the

medical providers were only paid $76,335.60, with the additional $211,383 going

to a “third-party speculator—HMRF—which invests in other parties’ lawsuits by

supplying monies which allow injured-but-uninsured plaintiffs to receive medical

care from others (HMRF itself is not a medical provider) in advance of their

lawsuits being resolved.”

      Guzman responds that “the gist of Amigos’s argument is that its complaint

of inadmissibility was demonstrated by documents that were not presented to the

trial court until after trial had already concluded and also unauthenticated and

inadmissible.”   Accordingly, Guzman argues, the scope of this “Court’s review

does not include these materials.” In any event, Guzman asserts that the trial court

did not abuse its discretion by admitting Guzman’s medical bills into evidence.


                                          15
      Guzman’s filed and served, pre-trial, billing records and affidavits reflecting

the amounts already paid to each medical provider, and the amounts unpaid that

HMRF was entitled to collect. Amigos moved to strike these affidavits, arguing

that they did not reflect what was “paid or incurred” because the medical providers

were not to be paid anything additional; instead, the remaining balance was owed

to HMRF.

      Guzman responded to the motion to strike, contending that HMRF’s

payments to Guzman’s medical providers were not payments on Guzman’s

account.   Instead, HMRF has “purchased the accounts from the healthcare

providers,” giving HMRF “the medical providers’ rights, title, and interest in the

account.” Thus, unlike with insurance programs, “Guzman remains liable for the

full amount of the medical providers’ bills, regardless of what HMR[F] paid the

medical providers.”    Guzman’s response attached, among other records, an

“Affidavit of Purchase of Accounts Receivable by Factoring Entity,” executed by

HMRF’s record custodian and explaining the HMRF had purchased the receivables

from three of Guzman’s medical providers.

      The record reflects that, at the trial court’s request, Guzman submitted—for

in camera review—a copy of the assignment agreements “between Plaintiff Julian

Guzman, and all the medical providers regarding his surgery, funded by HMRF.”

These assignments reflected that Guzman had assigned his potential recovery for


                                         16
medical expenses to three of his medical providers. In the letter transmitting these

assignment documents to the court, Guzman’s counsel stated that there are no

agreements between Guzman and HMRF.               He noted, however, that he—as

Guzman’s counsel—had signed an agreement with HMRF regarding Guzman, and

he enclosed a copy of that agreement for the court as well.1 The court denied

Amigo’s request to strike Guzman’s medical expense affidavits.

      At the close of the trial evidence, Amigos requested an instructed verdict on

the past medical expenses because “the expenses that have been admitted into

evidence over our previous objection are improper and are not actually paid or

incurred because of the involvement of the factoring company and the fact that the

jury is not being told the actual amount that has been paid and the only amount that

will be paid to the actual health-care providers but instead is being given an

amount of medical expenses that were never paid to the providers, never will be

paid to the providers, and are only being sought through assignment by a factoring

company.” The trial court overruled this request because Guzman owes the full

amount of the bills admitted at trial to either the medical provider or HMRF:
1
      Amigos had requested any agreement between HMRF and Guzman or his attorney
      be produced in pre-trial discovery. Guzman responded to the discovery request
      with, “Not relevant and will not lead to admissible evidence.” Amigos argues here
      that Guzman’s discovery response amounted to a misrepresentation that no such
      agreement existed, which prevented Amigos from obtaining a copy of the
      agreement between HMRF and Guzman’s counsel until after trial. Nothing in the
      record supports Amigos assertion that Guzman denied this agreement existed,
      however, and Amigos did not raise this as a newly discovered evidence point in its
      motion for new trial.
                                          17
      It’s my understanding, from looking at the assignments, that if the
      Plaintiff were to recover the full amount of the medical expenses,
      meaning, the bills that have been submitted by exhibit on behalf of the
      Plaintiff that the Plaintiff would be obligated to pay that money to the
      health-care provider or the factoring company since it’s the one that
      has been assigned the health-care.

      Guzman’s counsel confirmed that the court’s understanding was correct.

      This “paid or incurred” issue was raised again at the hearing on Guzman’s

motion to enter judgment on the jury’s verdict. Amigos argued that it had recently

obtained “the contract between [plaintiff’s counsel] and the factoring company

[HMRF] and the materials that are associated with that contract.” Amigos argued

that these materials together showed (1) Guzman would not owe HMRF anything

if he had lost his case against Amigo, and (2) plaintiffs’ counsel gets to subtract his

fee from any award to Guzman first, and then he and HMRF share together the risk

that the jury would not award enough to fully pay Guzman’s medical expenses.

      Guzman argued that Amigos’s understanding of the situation was incorrect.

According to Guzman, the “materials that are associated with” the HMRF contract

cited by Amigos was actually a flyer that neither Guzman nor his counsel had seen

before, and it reflected terms that were not a part of Guzman’s counsel’s agreement

with HMRF.       Guzman contended that he “had actually incurred his billing

obligations because he received the medical care, was billed for it, has provided no

payments to cover it, and could be subject to suit for nonpayment.” Guzman’s

counsel again confirmed to the court that if it entered judgment on the jury’s

                                          18
verdict—including awarding to Guzman his past medical expenses—“the full

amount of the bills are going to be paid to HMR[F].” The court ruled in Guzman’s

favor and entered judgment on the jury’s verdict, including the $287,809.94 in past

medical expenses.

      Amigos filed a motion for new trial, again contending that the trial court

“allowed the admission of certain medical charges in excess of that which was

‘paid or incurred.’”   Amigos asserted that the actual amount paid to health care

providers was $76,335.60 of the $287,809.94 awarded. Amigos relied on and

attached as evidence: excerpts from Dr. Reynold’s deposition, the HMRF flyer

(first presented post-trial and which Guzman and his counsel disavowed), the

contract between HMRF and plaintiff’s counsel, plaintiff’s counsel’s contingent

fee agreement with the plaintiffs, and assignment contracts under which Guzman

assigned his right of recovery to several medical providers.

      Guzman responded that Amigo’s argument should be rejected, because

Guzman’s assignments to his medical providers impose a payment obligation on

him and because there is no evidence of a contract prohibiting the medical

providers from charging Guzman the full value of services rendered and no

evidence of a contract prohibiting HMRF from collecting the full value of services

rendered. Thus, Guzman argued, the trial court properly admitted the medical bills

into evidence. The trial court agreed, denying Amigos’s motion for new trial.


                                         19
      1.    What Evidence Should this Court Consider?

      The parties disagree about what evidence may properly be considered by this

Court in reviewing the trial court’s decision to admit Guzman’s medical bills. In

its brief here, Amigos relies heavily on an undated flyer it attached to post-trial

filings advertising that HMRF does not recover money in cases unless the injured

party wins or settles the case. Amigos characterizes this as part of HMRF’s

agreement with Guzman’s counsel and states that HMRF had supplied this flyer to

Guzman’s lawyer. Amigos also relies upon an excerpt from Reynolds’s deposition

in which he states that he did not know who receives any recovered funds in excess

of what HMRF paid him for an assignment of Guzman’s bill.

      Guzman represented to the trial court, as it does here, that neither Guzman

nor his counsel had ever seen the flyer Amigos relies upon, and that its terms were

not a part of Guzman’s attorney’s agreement with HMRF. Guzman further argues

here that this flyer, as well as the deposition excerpts—both presented to the trial

court after the court had admitted the medical expense records Amigos objects

to—cannot be considered evidence in reviewing the trial court’s earlier decision to

admit the records. We agree.

      On October 4, 2014, almost one year before trial, Guzman’s counsel

provided the trial court with copies of (1) Guzman assignments to his medical

providers, and (2) Guzman’s counsel agreement with HMRF. Amigos challenges


                                        20
the admission of medical billing records totaling $287,809.94 that were introduced

and admitted during the September 2015 trial.

      Although Amigos claims that the flyer was discovered post-trial and is

relevant (while Guzman claims that it is not), Amigos does not complain on appeal

about the trial court’s denial of its post-trial motion for judgment notwithstanding

the verdict or motion for new trial (motions that relied on this evidence).2 Rather,

it argues that the medical expense evidence should not have been introduced at

trial. Guzman argues that the flyer was not relevant, competent, or authenticated,

and that we should not consider the flyer or deposition excerpts that were not

before the trial court when it made the decision Amigos complains of on appeal.

See generally Hornell Brewing Co. v. Lara, 252 S.W.3d 426, 429 (Tex. App.—

Houston [14th Dist.] 2008, no pet.) (holding that determination whether trial court

abused its discretion limited to information available to trial court at time of ruling,

not subsequent events); In re A.W.P., 200 S.W.3d 242, 245 (Tex. App.—Dallas

2006, no pet.) (“Larry relies solely on evidence he presented to the trial court in his

motion for new trial. However, Larry attacks only the trial court’s decision to grant
2
      A new trial based on newly discovered evidence requires the movant to show: “(i)
      admissible relevant evidence introduced on the hearing for new trial demonstrating
      the existence of newly discovered evidence relied upon; (ii) no knowledge of such
      evidence until after the conclusion of the trial and that such evidence could not
      have been discovered prior to the trial with the exercise of due diligence; (iii) such
      evidence was not cumulative or to be used for impeachment; and, (iv) such
      evidence would probably produce a different result if a new trial was granted.”
      Rivera v. Countrywide Home Loans, 262 S.W.3d 834, 844 (Tex. App.—Dallas
      2008, no pet.).
                                            21
judgment on the deemed admissions. In determining whether the trial court

properly granted judgment on the deemed admissions, we consider only the

evidence before the trial court at the time it made that decision.”); In re Harvest

Cmtys. of Hous., Inc., 88 S.W.3d 343, 349 (Tex. App.—San Antonio 2002, orig.

proceeding) (“A judgment must take its validity from the action of the court at the

time it is rendered and not from what persons may or may not do after the court has

rendered the judgment. . . . We can only consider the record that was before the

trial court at the time of the hearing in determining whether the trial court’s ruling

was [an abuse of discretion].”); Clark v. Noyes, 871 S.W.2d 508, 519 n.5 (Tex.

App.—Dallas 1994, no writ) (“‘We are required to consider only evidence

tendered or admitted at the time of the . . . hearing.’”) (citation omitted).

      We need not determine if the flyer is relevant, competent, or authenticated,

because we agree that we should disregard the flyer and deposition excerpts relied

upon by Amigos that were not before the trial court when it admitted Guzman’s

medical billing records.

      2.     The Trial Court did not Abuse its Discretion by Admitting
             Guzman’s medical billing records.

      We review a trial court’s admission of evidence under the abuse-of-

discretion standard. E.g., In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005); Dupree v.

Boniuk Interests, Ltd., 472 S.W.3d 355, 369 (Tex. App.—Houston [1st Dist.] 2015,

no pet.). A trial court abuses its discretion if it acts without reference to any

                                           22
guiding rules or principles or its decision is arbitrary or unreasonable. Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

      At issue here is the proper interpretation of the “paid or incurred” provision

of the Texas Civil Practice and Remedies Code:

      § 41.0105. Evidence Relating to Amount of Economic Damages
             In addition to any other limitation under law, recovery of
      medical or health care expenses incurred is limited to the amount
      actually paid or incurred by or on behalf of the claimant.

TEX. CIV. PRAC. & REM. CODE ANN. § 41.0105 (West 2013).

      The Texas Supreme Court first interpreted this statutory language in

Haygood v. De Escabedo, 356 S.W.3d 390 (Tex. 2011).             There, health-care

providers billed Haygood a total of $110,069.12 for treatment of car-wreck

injuries. Id. at 392. Because Haygood was covered by Medicare Part B, and

because federal law prohibits health care providers from charging Medicare

patients more than Medicare deems reasonable, Haygood’s providers adjusted their

bills downward, leaving a total amount due of $27,739.43. Id. The trial court

allowed Haygood to introduce evidence of the full amounts initially billed by his

providers, and the jury awarded the full amounts as past medical expenses. Id.

      The supreme court held that allowing evidence of the initially billed amounts

was improper.    Id. at 396. The court also interpreted the “actually paid and

incurred” language in section 41.0105 to mean “expenses that have been or will be

paid, and excludes the difference between such amount and charges the service
                                        23
provider bills but has no right to be paid.” Id. The court also articulated the

standard as “limit[ing] a claimant’s recovery of medical expenses to those which

have been or must be paid by or for the claimant.” Id. at 398. The court thus

concluded that only evidence of recoverable medical expenses—those expenses

that “have been or must be paid by or for the claimant”—is admissible. Id. at 398–

99. Evidence of charges for which the provider is not entitled to payment is

“irrelevant to the issue of damages” and inadmissible. Id. at 398.

      In the underlying case here, Guzman assigned to his medical providers his

right to recover medical expenses from Amigos. His medical providers, in turn,

sold Guzman accounts to HMRF—an accounts receivable financing (or “factoring”

company)—at a discounted rate.3         Guzman’s obligation to pay his medical

providers then shifted to an obligation to pay HMRF as purchaser of the account.

      A variable is thus present in this case that Haygood does not directly

address—namely, the involvement of a third-party factoring company as an

assignee of the medical providers that renders different the amount paid the

medical providers and the amount due from or on behalf of the plaintiff to the


3
      In its brief, Amigos refers to Guzman’s past medical expenses assigned to HMRF
      as “Inflated Charges,” and refers to the contractual arrangements as a “puppet
      show,” between “complicit providers,” to implement an “elaborate scheme.”
      Nothing in the record, however, supports the assertion that the amounts billed by
      the medical providers were not reasonable, customary, or inflated for purposes of
      the HMRF agreement. Rather, the record evidence is that the medical expenses
      were reasonable and necessary.
                                          24
factoring company.    The Fourteenth Court of Appeals has, however, recently

interpreted section 41.0105 in light of Haygood in a similar situation involving

medical providers who sold, at a discount, their accounts to a third-party factoring

company:

      Favalora entered into contracts with several of his health care
      providers. Pursuant to these contracts, Favalora assigned to the health
      care providers his interest in any proceeds that might be recovered as
      a result of his pending lawsuit. Favalora also granted the providers a
      security interest in his potential tort recovery. MedStar then
      purchased, at a discount, the health care providers’ accounts
      receivable, including the providers’ respective interests in the
      potential tort recovery and the liens on those interests. . . . [T]here is
      no evidence of any contract that prohibited the health care providers
      from charging Favalora the full value of the services rendered. Nor is
      there any evidence of a contract prohibiting MedStar from collecting
      the full value of the services rendered. To the contrary, the evidence
      considered by the trial court suggests that Favalora remained liable for
      the full value of the services rendered.

See Katy Springs & Mfg. v. Favalora, 476 S.W.3d 579, 601–02 (Tex. App.—

Houston [14th Dist.] 2015, pet denied).

      As here, Favalora involved a suit against an employer who argued that “the

trial court erred in admitting invoices showing the full amounts charged by the

medical providers rather that the amounts medical providers received in return for

selling their accounts receivable” to a factoring company.         Id. at 601.     The

Favalora court acknowledged that the “factual situation before us does not fit

neatly into section 41.0105 of the Haygood court’s ruling.” Id. at 601. The court

ultimately concluded, however, that “[i]n a factoring case, where the record

                                          25
indicates that the claimant remains liable for the amounts originally billed by the

medical provider, such amounts are recoverable medical expenses under section

41.0105, and evidence showing the amounts billed by the medical provider is

admissible.” Id. at 604. The record reflects that Guzman remains liable for the

amounts originally billed by the medical providers; thus, evidence showing the

amounts billed by his medical providers is admissible.

      We overrule Amigos’s second issue.

C.    Improper Jury Argument

      In its third issue, Amigos argues that “improper questioning and argument”

by Guzman’s counsel constituted “incurable error.”        “To obtain reversal of a

judgment on the basis of improper jury argument, a complainant must prove (1) an

error; (2) that was not invited or provoked; (3) that was preserved at trial by a

proper objection, motion to instruct, or motion for mistrial; (4) that was not curable

by an instruction, a prompt withdrawal of the statement, or a reprimand by the trial

court; and that (5) the argument by its nature, extent, and degree constituted

reversibly harmful error.” Jones v. Republic Waste Servs. of Tex., 236 S.W.3d 390,

402 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (citing Standard Fire Ins.

Co. v. Reese, 584 S.W.2d 835, 839 (Tex. 1979)). Reversal is proper only upon a

showing that “the probability that the improper argument caused harm is greater




                                         26
than the probability that the verdict was grounded on the proper proceedings and

evidence.” Reese, 584 S.W.2d at 840.

      Amigos specifically complains of the following:

      Plaintiff’s Opening Statement: “I implore you to believe in better.
      Texas workers deserve better; and when you get your verdict, believe
      in better and do not reward the defendant’s conduct with a small
      verdict.”

      Direct Examination of Amigos’s Office Manager: “And even today,
      you have Amigos’ employees show up at Subway and try to videotape
      and spy on Mr. Guzman?”; and “So, it’s a coincidence that people are
      in their backyards looking into [Plaintiff’s] windows?”
      Plaintiffs’ Closing Argument: Brian—he’s volunteering. He’s doing it
      for free . . . . so we’re not huge. We’re not Baker Botts. We’re two
      lawyers helping poor workers get justice. Now you see what you have
      to do. Now, you see what a worker has to go through to get justice.
      This process here has taken a couple of days at trial, has taken a
      couple of days. This litigation has gone on for two years. Mr. Markle
      has taken depositions and grilled Julian [Guzman], his wife, and
      called him a liar, a cheat, and a fraud. Now he’s calling him a
      criminal. Can you imagine what an injured worker has to do to get
      justice, to go through all of this and be called a criminal because you
      got hurt at work? That’s outrageous. It’s outrageous conduct.
      In response, Guzman notes that Amigos did not object to all of these

statements at trial, and he argues that none of the statements presented were

preserved or incurable error.

      1.     Surveillance Questions

      It was undisputed that Amigoes used video surveillance on Guzman and his

family for at least two weeks, resulting in the video of Guzman carrying a laundry

basket that formed the basis of Amigos’s claim that Guzman was not injured.
                                        27
After Guzman’s wife testified that they felt they were still being followed, Mr.

Cantu, Amigos’s office manager, was asked about the surveillance. Cantu testified

that an employee whose name he did not remember implied Guzman was

“somehow lying about his situation,” so Amigos decided to hire an investigator.

The investigator was paid between $2,500 and 3,000 to follow Guzman and his

family for about two weeks.    After this information was solicited, the following

exchange took place between Guzman’s counsel and Cantu:

            Q. You followed -- you had -- you hired an investigator to
      follow around -- follow him and his family around to show that he
      was not injured, right?
            A. I’m not interested about the family, only him.
            Q. And why is that?
             A. Because he is the employee who works with us and he is the
      right person.
           Q. And even today, you have Amigo’s employees show up at
      Subway and try to videotape and spy on Mr. Guzman?
            ....
          Q. Even today is Amigo’s employees still following around Mr.
      Guzman and his family?
             A. Nothing at all with the family, and ever since, we have never
      hired again any service to follow him.
            Q. So, it’s a coincidence that people are in their backyards
      looking to their windows?
            [Amigos’s counsel]: Objection, Your Honor. There is no
      evidence of that.
            THE COURT: Sustained.
            [Amigos’s counsel]: I ask for an instruction to disregard. That is
      absolutely outrageous.

                                        28
             THE COURT: Well, the question wasn’t answered, so I've
      sustained the objection to the question.

      Amigos argues that, with these statements, Plaintiffs’ counsel “insinuated

that Amigos had actually dispatched henchmen into Plaintiff’s backyard, so as to

‘look . . . into his windows.’” It further contends that there was no evidence to

support these “inflammatory and outrageous assertions.” And that “a new trial is

likewise appropriate where plaintiff’s counsel has made statements before the jury

which question the tactics or integrity of the defendant and/or its counsel, without

evidentiary support in the record substantiating that such wrongdoing actually

occurred.” (citing State v. Jauernig, 395 S.W.2d 923, 926 (Tex. App.—San

Antonio 1965, writ ref’d, n.r.e.); Texas & Pacific Ry. Co. v. Jefferson, 131 S.W.2d

175, 176–77 (Tex. App.—El Paso 1939, no writ)).

      In response, Guzman points out that only one of these two surveillance

questions was answered, and it was answered only partially. Specifically, when

asked about whether Amigos’s employees are still following the Guzman family,

Cantu responded that “ever since, we have never hired again any service to follow

him.” (emphasis added). Guzman also notes that this was not a new topic, but

follow up on testimony that the family still thought it was being followed today.

      Given the record evidence that Amigos engaged in surveillance and

recording of Guzman’s family and that the trial court’s sustained Amigo’s “outside

the record” objection to the question about whether Amigos was still engaged in

                                         29
surveillance, we conclude that Amigos’ has not demonstrated that this questioning

of Cantu amounted to incurable, improper argument. E.g., Nguyen v. Myers, 442

S.W.3d 434, 441–42 (Tex. App.—Dallas 2013, no pet.) (“Incurable statements are

rare and generally encompass arguments that strike at the courts’ impartiality,

equality, and fairness because they “inflict damage beyond the parties and the

individual case under consideration if not corrected.”).

      2.     Opening Statement and Closing Argument

      Amigo’s objection during Guzman’s counsel’s opening statement was

sustained during the following exchange, and Amigos renews his complaint about

this statement on appeal:

             There are no excuses for the defendant to choose to cause
      mayhem at the workplace. They have to be held accountable. The
      simple truth is Julian [Guzman] has suffered through this because of
      the failure to provide the proper help and the proper equipment. I
      implore you to believe in better. Texas workers deserve better; and
      when you get your verdict, believe in better and do not reward the
      defendant’s conduct with a small verdict --
             [Amigo’s counsel]: Your Honor, I object.
             Sustained.
             [Amigo’s counsel]: That’s argument.
             Sustained as to argument.
            [Guzman’s counsel]: -- just a fair verdict based on the evidence.
      Remember, conduct rewarded is conduct repeated. Now let’s get to
      work. Thank you.

      Lastly, Amigos challenges the following from closing arguments:



                                         30
              Brian—he’s volunteering. He’s doing it for free . . . . so we’re
      not huge. We’re not Baker Botts. We’re two lawyers helping poor
      workers get justice. Now you see what you have to do. Now, you see
      what a worker has to go through to get justice. This process here has
      taken a couple of days at trial, has taken a couple of days. This
      litigation has gone on for two years. [Amigo’s counsel] has taken
      depositions and grilled Julian [Guzman], his wife, and called him a
      liar, a cheat, and a fraud. Now he’s calling him a criminal. Can you
      imagine what an injured worker has to do to get justice, to go through
      all of this and be called a criminal because you got hurt at work?
      That’s outrageous. It’s outrageous conduct.

      Amigos argues that, “Viewed as a whole, then, th[ese] Prejudicial

Statements by Plaintiff’s counsel constitute not just reversible error, but incurable

error, in that the Statements improperly appealed to the Jury’s prejudices by

i) urging them to favor the ‘worker’ Plaintiff over his corporate employer Amigos,

ii) making unsupported allegations that Amigos and its counsel engaged in

‘outrageous conduct’ which impermissibly and continuously harassed the ‘worker’

Plaintiff, and iii) urging the Jury to make its verdict sufficiently large to punish

Amigos for this entirely unproven ‘outrageous misconduct’ committed against a

‘Texas worker.’”

      Guzman asserts that Amigos has the burden to prove that complained-of

remarks were not invited or provoked. See Standard Fire, 584 S.W.2d at 839;

Cent. Nat’l Gulfbank v. Comdata Network, Inc., 773 S.W.2d 626, 628 (Tex.

App.—Corpus Christi 1989, no writ). And that parties have a right to fairly

respond to arguments by opposing counsel, so a fair response to opposing


                                         31
counsel’s arguments presents no error. See Magaline v. J.V. Harrison Truck Lines,

Inc., 446 S.W.2d 920, 926 (Tex. Civ. App.—Houston [14th Dist.] 1969, writ ref’d

n.r.e.).

       The Texas supreme court has admonished that the proper focus in evaluating

whether an argument is incurable is “the amount of harm from the argument”:

       [W]hether the argument, considered in its proper setting, was
       reasonably calculated to cause such prejudice to the opposing litigant
       that a withdrawal by counsel or an instruction by the court, or both,
       could not eliminate the probability that it resulted in an improper
       verdict.

Living Centers of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680 (Tex. 2008). For

example, in Penalver, the plaintiff’s attorney representing the family of an elderly

woman who died at a Living Centers’ nursing home, “compared Living Centers’

lawyer’s attempts to minimize damages [awarded] to a World War II German

program in which elderly and infirm persons were used for medical

experimentation and killed.” Id. The supreme court held that this argument fits

within the rare category of argument that “strikes at the appearance of and the

actual impartiality, equality, and fairness of justice rendered by courts.” Id. at 681.

It is “incurably harmful not only because of its harm to the litigants involved, but

also because of its capacity to damage the judicial system.” Id.

       While counsel must “confine argument strictly to the evidence and to the

arguments of opposing counsel,” and “[a]ppeals to passion and prejudice are


                                          32
improper,” improper argument is not incurable unless it is shown that “the

probability that the improper argument caused harm is greater than the probability

that the verdict was grounded on the proper proceedings and evidence.” Jones v.

Republic Waste Servs. of Tex., 236 S.W.3d 390, 401 (Tex. App.—Houston [1st

Dist.] 2007, pet. denied) (citations omitted). Amigos has not made such a showing

here.

        The crux of Amigos’s complaint is that Guzman’s counsel’s comments were

designed to sway the jury to render a verdict driven by emotions rather than the

evidence.    As Guzman points out, however, some of the statements Amigos

complains of were in response to Amigos’s counsel’s own arguments.             For

example, Amigos cites Guzman’s counsel’s referring to one of Guzman’s lawyers

as unpaid and emphasizing that Guzman is not represented by a big firm. Amigos

had already intimated that it was Guzman with the money and powerful lawyers,

arguing: “And, you know, when a 10,000-dollar expert witness and three law firms

get together to sue us, they can make our people look -- well, pretty plain spoken,

pretty ordinary.” Amigos spent considerable time on the us-versus-them dialogue,

contending that in Guzman’s experts “made up” world there are “all these 300-

dollar an hour safety guys strutting around.”   Amigos’s counsel contrasted that

world with the real world of Amigos’s operations employing uneducated, hard-




                                        33
working laborers. Amigos lambasted Guzman’s expert’s “fantasy world of prying

money out of corporations.”

       Amigos also complains here about Guzman’s counsel’s comments about

how hard it was to get justice for Guzman, and Amigos’s allegedly poor treatment

of Guzman throughout the process of seeking compensation for his back injury.

Relatedly, Amigos points to Guzman’s counsel’s argument that Guzman just

wanted help for his back, but instead Amigos “called him a liar, a cheat, and a

fraud, . . . . [and] a criminal.” Amigo’s theory of the case, however, was that

Guzman was not injured, and was lying. Amigos’s counsel said as much explicitly

in its closing argument:

      [Guzman] is a proven liar. He is a perjurer. He has lied under oath
      repeatedly. That is a crime in the state of Texas. He committed perjury
      over and over and over by lying in this case under oath whenever it
      suited him and in his opinion, helped him get millions of dollars. He
      came into this courtroom and changed his story completely to help
      him get rich. He had literally a million reasons to lie, and he did lie
      over and over and over. In earning your trust, can we believe one
      single word that came out of his mouth? Does his story make sense?
      Let's think about that. Let's set aside the perjury and the lying just for
      a moment and try to be objective about his story.
      In context of the entire record, we conclude that many of the statements

Amigos complains of were invited or provoked by Amigos own statements and

theory of the case. To the extent that any of the statements were improper, nothing

Amigos cites individually or in the aggregate is so egregious as to be incurable.

      We overrule Amigos’s third issue.

                                         34
                                CONCLUSION

      We affirm the trial court’s judgment.




                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.




                                        35
