Reverse and Remand and Opinion Filed November 23, 2016




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-15-01038-CV

                               KARLA C. LIANG, Appellant
                                          V.
                             SHAWANNA EDWARDS, Appellee

                       On Appeal from the County Court at Law No. 4
                                   Collin County, Texas
                           Trial Court Cause No. 004-00315-2014

                            MEMORANDUM OPINION
                       Before Justices Bridges, Lang-Miers, and Schenck
                                   Opinion by Justice Bridges
       This appeal arises from the underlying auto collision lawsuit in which a jury returned a

verdict in favor of appellee Shawanna Edwards and awarded her $5,000 for past pain and

suffering and $23,299.50 for past medical expenses. On appeal, appellant Karla C. Liang argues

the trial court abused its discretion by admitting some of Edwards’ Texas Civil Practice and

Remedies Code section 18.001 billing records affidavits because she timely filed a

counteraffidavit.   Alternatively, Liang argues the record contains no competent evidence

establishing that her negligence proximately caused all of Edwards’ injuries and past medical

expenses. We reverse the trial court’s judgment and remand for a new trial.
                                         Background

       On March 27, 2012, Liang, traveling within the speed limit, hit Edwards’ car. The

responding officer prepared a report and determined Liang was the party at fault. Liang admitted

Edwards did nothing wrong and she hit Edwards.

       After the accident, Edwards’ husband drove her home and she slept for several hours.

Upon waking, she felt “groggy” with a headache. Her husband insisted she go to the emergency

room. Doctors diagnosed her with a neck sprain and concussion. She was told to follow up with

her physician. Two days later, she visited Dr. Joshua McFarland, a physical therapist and

chiropractor. She received physical therapy from Dr. McFarland two to three times a week for

four to six weeks. Her treatment included chiropractic adjustments and at-home therapies to

reduce pain and muscle tension.

       After finishing her treatment with Dr. McFarland, Edwards visited Dr. Arif Khan, a pain

management specialist, on June 11, 2012. He provided one epidural steroid injection for the

radiating pain she described as originating in her neck and sometimes moving down to her lower

back and knee area. On July 3, 2012, Dr. Khan administered a second epidural steroid injection.

She testified she still has pain “every now and then” and continues with therapies and massage

therapy depending on her pain.

       Edwards filed her original petition against Liang on March 5, 2014. Edwards filed

various billing records affidavits pursuant to section 18.001 of the Texas Civil Practice and

Remedies Code. Liang filed a counteraffidavit contesting the reasonableness and necessity of

the past medical treatments. In the counteraffidavit, Dr. Robert G. Kadoko opined that, based on

a review of Edwards’ medical records, the epidural steroid injections she received and any

chiropractic visits beyond six appointments were unnecessary and unreasonable because no

documentation or testing confirmed she suffered from radiculopathy.


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        At trial, over Liang’s objections, the trial court admitted Edwards’ billing records

affidavits.   Other than her own testimony in which she said her medical treatments were

necessary, Edwards provided no expert testimony as to the reasonableness and necessity of her

medical treatment. Both parties presented portions of Dr. Kadoko’s deposition testimony in

which he provided the same opinions as in his counteraffidavit. At the conclusion of trial, the

jury awarded Edwards $23,299.50 in past medical care expenses—the total amount represented

in the billing records affidavits.

        Liang filed a motion for judgment notwithstanding the verdict or, alternatively, motion

for new trial in which she argued the trial court abused its discretion by admitting the billing

records affidavits because she filed a counteraffidavit pursuant to section 18.001(e), (f). The trial

court denied the motions. This appeal followed.

                                            Discussion

        In her first issue, Liang contends the trial court abused its discretion by admitting some of

Edwards’ billing records affidavits because she timely filed a counteraffidavit. Liang argues that

by timely filing a counteraffidavit, Edwards could not rely on her billing records affidavits and

needed to provide expert testimony to prove her reasonable and necessary medical expenses.

Edwards responds Liang’s counteraffidavit was neither timely filed nor made by a person

qualified to give such opinions; therefore, the trial court did not abuse its discretion by admitting

them, and she was not required to provide expert testimony to prove her past medical expenses.

        In a personal injury case, a claim for past medical expenses must be supported by

evidence that (1) the plaintiff’s injuries were caused by the defendant’s negligence, and (2) the

medical treatment was necessary and the charges for the treatment were reasonable. See

Texarkana Mem’l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 840 (Tex. 1997). A plaintiff can

present evidence concerning the reasonableness and necessity of past medical expenses through


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expert testimony or an affidavit from the plaintiff’s medical provider made pursuant to section

18.001. Whitaker v. Rose, 218 S.W.3d 216, 223 (Tex. App.—Houston [14th Dist.] 2007, no

pet.); TEX. CIV. PRAC. & REM. CODE ANN. § 18.001 (West 2015).            The jury is not required to

award a plaintiff the amount of damages established in the affidavit, but if it chooses to do so, the

affidavit is sufficient evidence to support the jury’s finding that past medical expenses were

reasonable and necessary. Id.

        If an opposing party intends to controvert a claim reflected in the initial affidavit, the

opposing party must file a counteraffidavit. TEX. CIV. PRAC. & REM. CODE ANN. § 18.001(e).

The counteraffidavit must give reasonable notice of which claims the opponent intends to

controvert and why, and it must be made by a person qualified to testify about the matters in

dispute. Id. § 18.001(f). The party intending to controvert a claim in the affidavit must serve a

copy of the counteraffidavit not later than thirty days after the day the party receives a copy of

the affidavit and at least fourteen days before the day on which evidence is first presented at trial.

Id. § 18.001(e)(1)(A), (B).

        By filing a counteraffidavit, the nonoffering party can prevent the offering party’s

affidavits of reasonableness and necessity from being used as evidence. See Hong v. Bennett,

209 S.W.3d 795, 799 (Tex. App.—Fort Worth 2006, no pet.). Further, the nonoffering party can

force the offering party to prove reasonableness and necessity of expenses by expert testimony at

trial. Id.

        Because section 18.001 is an evidentiary statute, a trial court’s ruling in admitting or

excluding such affidavits are reviewed under an abuse of discretion standard. See Hong, 209

S.W.3d at 799. We must uphold the trial court’s evidentiary ruling if there is any legitimate

basis in the record for the ruling. Id.




                                                 –4–
           With these standards in mind, we begin by addressing the timeliness of the affidavits and

counteraffidavit. Section 18.001(d) provides that a party offering the affidavit into evidence

must serve a copy of the affidavit on the other party at least thirty days before evidence is first

presented at trial. TEX. CIV. PRAC. & REM. CODE ANN. § 18.001(d).

           Here, the record contains many billing records affidavits from various medical providers1;

however, Liang only challenges the billing records affidavits of Dr. Khan and Richardson Injury

Clinic. We address each in turn.

           Edwards argues Liang’s time to file a counteraffidavit began to run on June 20, 2014, the

date Liang received plaintiff’s responses to request for disclosure, which included a CD labeled

“Plaintiff’s Responses to Request for Production RICHARDSON INJURY CLINIC

RECORDS.” However, the record does not contain copies of what information the CD

contained. Instead, the record contains only a copy of the CD label. We cannot conclude a copy

of a CD label is sufficient evidence that Liang received Richardson Injury Clinic’s billing

records affidavit on that day. Accordingly, Liang’s time to serve a counteraffidavit did not begin

to run on June 20, 2014. See TEX. CIV. PRAC. & REM. CODE ANN. § 18.001(e)(1)(A) (party must

serve counteraffidavit thirty day after party receives affidavit). The only other evidence in the

record indicating when Edwards served her billing records affidavit for Richardson Injury Clinic

and when Liang received it is the February 24, 2015 electronic copy filed with the court.2 Thus,

Liang had thirty days from February 24, 2015 to serve a counteraffidavit.


     1
       These medical providers include: (1) EMcare, (2) Dr. Bruce Cheatham, (3) DFW Open MRI, (4) Methodist Richardson Medical Center,
and (5) Methodist Richardson. Although Liang objected to the admission of these affidavits in the trial court, she does not challenge them on
appeal. Thus, the jury was presented with evidence of Edwards’ medical expenses from these providers.
     We note the electronic receipts for these documents state these filings were rejected because they did not have the complete style of the case
and/or cause number at the top. However, the receipt also indicates in the “eService Details” that the documents were sent, served, and opened
by defense counsel on January 27, 2015. Further, per Texas Rule of Civil Procedure 21a(3), electronic service is complete on transmission of the
document to the serving party’s electronic filing service provider. TEX. R. CIV. P. 21a(3).
     2
      Interestingly, the execution date of the affidavit is November 2, 2014, further indicating the affidavit could not have been included on the
CD produced in discovery because it had not yet been created.



                                                                      –5–
       As to Dr. Khan, the record indicates his medical records affidavit was executed on

November 14, 2014 and therefore not included in Edwards’ June 20, 2014 discovery responses.

Rather, the record shows Edwards electronically filed a copy of Dr. Khan’s billing records

affidavit on February 24, 2015. Thus, to timely serve a counteraffidavit responding to Dr. Khan,

Liang also had thirty days from February 24, 2015 (making both counteraffidavits due March 26,

2015). Id. § 18.001(e)(1)(A). Liang served Dr. Kadoko’s counteraffidavit on March 25, 2015.

But our analysis does not end here.

       In addition to filing the counteraffidavit within thirty days of receiving the billing records

affidavits, section 18.001 also requires a counteraffidavit be served at least fourteen days before

evidence is presented at trial. Id. § 18.001(e)(1)(B). At the time Liang filed her counteraffidavit

on March 25, 2015, the trial was set for March 30, 2015; therefore, Liang filed a motion for leave

to file counteraffidavits pursuant to section 18.001(e)(2). See id. § 18.001(e)(2) (party may file

counteraffidavit with leave of court at any time before the commencement of evidence at trial).

The trial court did not rule on Liang’s motion for leave; however, the motion became moot after

the trial court rescheduled the trial to May 18, 2015.

       Once the trial court reset the trial to May 18, 2015, Liang’s counteraffidavit was timely

filed under section 18.001. To summarize, Liang filed her counteraffidavit on March 25, 2015,

which was within thirty days of receiving Edwards’ February 24, 2015 affidavits for Dr. Khan

and Richardson Injury Clinic, and it was filed fourteen days before evidence was first presented

at trial thereby meeting both timing requirements under section 18.001.

       Despite Liang timely filing her counteraffidavit, Edwards argues the trial court did not

abuse its discretion by admitting her affidavits because Liang made only general pretrial

objections to Edwards’ affidavits, which were insufficient to inform the trial court of her

complaints. We are unpersuaded by Edwards’ arguments. First, Edwards has failed to provide

                                                –6–
any authority to support her claim that a party opposing a section 18.001 affidavit must do

anything more than file a counteraffidavit to inform the trial court of her objection to the original

affidavit. As Liang argues, “the opponent’s counteraffidavit serves as the ‘objection’ to the

proponent’s controverted section 18.001 billing affidavits, and no further objection is necessary.”

       Further, to preserve an issue for review, a party must make a timely request, objection, or

motion that puts the trial court on notice with sufficient specificity of her complaint. TEX. R.

APP. P. 33.1. Here, the record shows that in addition to filing the counteraffidavit, Liang raised

her objections to the billing records affidavits prior to voir dire. However, the trial court denied

Liang’s request to exclude Edwards’ billing records affidavits without further explanation.

Liang objected again when Edwards introduced Dr. Khan’s and Richard Injury Clinic’s billing

records affidavits into evidence. The trial court overruled her objections.

       Although Edwards asserts Liang’s general objections to all the billing records affidavits

did not inform the trial court of the specific affidavits she now challenges on appeal, Liang has

simply presented a narrower scope of the argument she raised to the trial court—that she timely

filed a counteraffidavit challenging Dr. Khan’s and Richardson Injury Clinic’s affidavits thereby

forcing Edwards to present expert testimony of her reasonable and necessary past medical

expenses. Liang has not presented a broader or different argument, which would violate the

preservation rules. See, e.g., Crews v. Dkasi Corp., 469 S.W.3d 194, 201 (Tex. App.—Dallas

2015, pet. denied) (party must timely raise objection to trial court to preserve issue for appellate

review); Cunningham v. Hughes & Luce, L.L.P., 312 S.W.3d 62, 71 (Tex. App.—El Paso 2010,

no pet.) (issue not preserved for review when objection at trial did not comport with challenge on

appeal). Thus, Edwards’ preservation argument is without merit.

       We likewise reject Edwards’ argument that Liang filed an insufficient counteraffidavit

under section 18.001(f). Edwards did not object to Dr. Kadoko’s qualifications during pretrial

                                                –7–
discussions, and she did not object when the trial court later admitted Dr. Kadoko’s expert report

during trial, which contained the same opinions as his counteraffidavit. Because Edwards did

not raise this objection to the trial court, she may not now raise it on appeal. TEX. R. APP. P.

33.1; see, e.g., Ozlat v. Priddy, No. 11-96-240-CV, 1997 WL 33798173, at *3 (Tex. App.—

Eastland May 29, 1997, writ denied) (party’s objection to counteraffidavit was not preserved

when party raised different complaint on appeal than that raised to trial court).

       After considering both party’s arguments, we conclude Liang’s counteraffidavit complied

with section 18.001.     Because Liang complied with the statute, the trial court abused its

discretion by admitting Edwards’ billing records affidavits for Dr. Khan and Richardson Injury

Clinic in lieu of requiring Edwards to provide expert testimony at trial as to those reasonable and

necessary past medical expenses. See Hong, 209 S.W.3d at 804.

       Having determined the trial court abused its discretion by admitting the billing records

affidavits in lieu of expert testimony, we must determine whether the error is reversible. TEX. R.

APP. P. 44.1. We will not reverse a trial court’s judgment because of an erroneous evidentiary

ruling unless the ruling probably caused the rendition of an improper judgment. Id. at 805. We

examine the entire record in making this harm determination. Id.

       From the beginning of trial, Edwards emphasized the importance of the medical bills.

During voir dire, Edwards asked jurors if they could look at medical records and medical bills

“on their face and make a determination based on what’s presented.”                 During opening

statements, Edwards’ counsel discussed the steroid injections she received and emphasized Liang

“paid [Dr. Kadoko] money to tell you that [Edwards] didn’t need the treatment she received.”

       As part of her defense, Liang presented portions of Dr. Kadoko’s deposition testimony

for the jury. Dr. Kadoko testified he is a board-certified orthopedic surgeon who treats diseases

of the bones, tendons, and ligaments. He reviewed Edwards’ medical records. The records from

                                                –8–
the emergency room right after the accident, which included x-rays of her cervical spine and the

CT scan of her head and cervical spine, showed no evidence of trauma. Dr. McFarland’s notes

stated she had “no radiation of pain into the extremities.” Although Dr. Kadoko found no

explanation of a final diagnosis or treatment plan for Edwards in Dr. McFarland’s medical notes,

Dr. McFarland later referred Edwards to Dr. Khan. Dr. Khan ordered cervical epidural steroid

injections, which is normally prescribed to treat pain caused by a nerve or the spinal cord being

pinched (a condition called radiculopathy). However, Dr. Kadoko testified a cervical epidural

steroid injection would not be reasonable for a patient who has no symptoms of radiculopathy.

Dr. Kadoko reviewed Edwards’ records and concluded, “There was no objective evidence of

radiculopathy.”    Without objective evidence of radiculopathy from any of her physicians’

records, Dr. Kadoko opined it was not reasonable for Dr. Khan to prescribe the two steroid

injections.

       Dr. Kadoko believed the accident caused Edwards to suffer a cervical sprain, a thoracic

sprain, and a lumbar sprain. He considered these “self-limiting” injuries, meaning they can be

“really painful but if you just leave them alone and keep the patient out of trouble, they will heal

and won’t ultimately affect their function.” He stated such injuries do not require future medical

treatment. Based on his experience with such injuries, he concluded Edwards’ medical records

supported only six chiropractic visits between April 2012 and June 2012 rather than the twenty-

four she received. Thus, he testified any visits beyond six were unreasonable and unnecessary.

       Edwards then read portions of Dr. Kadoko’s deposition as rebuttal testimony. However,

none of the portions read to the jury addressed or contradicted Dr. Kadoko’s opinions that the

two steroid injections were unnecessary and unreasonable because there was no objective

evidence of radiculopathy or that any chiropractic visits beyond six were unnecessary and

unreasonable.     Rather, Edwards emphasized Dr. Kadoko was a paid medical expert, who

                                                –9–
routinely testified for defense attorneys. Edwards also emphasized Dr. Kadoko’s testimony in

which he said he was not an expert on billing or charging medical services. However, Dr.

Kadoko was not designated to be an expert on medical billing, but instead was designated to

provide a medical expert opinion about the reasonableness and necessity of medical treatment.

He provided such an opinion. Accordingly, none of this testimony served to rebut Dr. Kadoko’s

opinions that Edwards’ received some unnecessary and unreasonable medical care resulting in

unnecessary expenses.

       During closing argument, Edwards’ counsel argued, “. . . you can look at those affidavits,

and you can add them up yourself.” The jury awarded the exact amount ($23,299.50) of all of

Edwards’ medical billing affidavits, including the two improperly admitted affidavits. Thus, the

award of past medical expenses turned on this particular erroneously admitted evidence.

Consequently, the admission of Dr. Khan’s and Richardson Injury Clinic’s affidavits probably

caused the rendition of an improper verdict because without that evidence, Edwards failed to

meet her burden of proof that all of her past medical expenses were reasonable and necessary.

Accordingly, the trial court’s error was harmful. See TEX. R. APP. P. 44.1; see also Henderson v.

Spann, 367 S.W.3d 301, 304 (Tex. App.—Amarillo 2012, pet. denied) (“[W]hen, as a

consequence of the trial court’s evidentiary rulings, there is no evidence of past medical

expenses, a judgment awarding past medical damages is improper.”). We sustain Liang’s first

issue. We need not address Liang’s alternative argument in which she asserts the record contains

no competent evidence establishing that her negligence proximately caused all of Edwards’

injuries and past medical expenses. TEX. R. APP. P. 47.1.

       Although we have concluded the record cannot support the jury’s entire award of past

medical expenses, the judgment is supported by some evidence in the record—specifically, the

section 18.001 affidavits Edwards introduced into evidence and Liang has not challenged on

                                              –10–
appeal. Thus, the proper remedy is to reverse the judgment and remand this case for a new trial.

See Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 682 (Tex. 2000) (concluding remand for

a new trial was appropriate remedy when there was evidence of some fraud damages but there

was no evidence to support the full damage amount found by jury); Adley v. Privett, No. 05-12-

01581-CV, 2014 WL 3371920, at *3 (Tex. App.—Dallas July 9, 2014, no pet.) (mem. op.).

                                           Conclusion

       Because the trial court committed harmful error by admitting the section 18.001

affidavits of Dr. Khan and Richardson Injury Clinic and Edwards provided no evidence through

expert testimony to support the jury’s full award of past medical expenses totaling $23,299.50,

we reverse the trial court’s judgment and remand this cause for a new trial.




                                                   /David L. Bridges/
                                                   DAVID L. BRIDGES
                                                   JUSTICE


151038F.P05




                                              –11–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

KARLA C. LIANG, Appellant                            On Appeal from the County Court at Law
                                                     No. 4, Collin County, Texas
No. 05-15-01038-CV         V.                        Trial Court Cause No. 004-00315-2014.
                                                     Opinion delivered by Justice Bridges.
SHAWANNA EDWARDS, Appellee                           Justices Lang-Miers and Schenck
                                                     participating.

    In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for a new trial.

       It is ORDERED that appellant KARLA C. LIANG recover her costs of this appeal from
appellee SHAWANNA EDWARDS.

       The obligations of Employers Insurance Company of Wausau as surety on appellant’s
supersedeas bond are DISCHARGED.


Judgment entered November 23, 2016.




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