Court of Appeals of Texas, Houston (14th Dist.).
KATY SPRINGS & MANUFACTURING, INC., Appellant
Joseph FAVALORA, Appellee
Opinion filed August 27, 2015
Rehearing and Rehearing En Banc Overruled November 3, 2015
*586 On Appeal from the 133rd District Court, Harris County, Texas, Trial Court Cause No. 2011–15658
Attorneys & Firms
Alan N. Magenheim, Houston, TX, for appellant.
William Kyle Adams, Katy, TX, for appellee.
Panel consists of Justices Wise.
Marc W. Brown, Justice
This is a personal-injury case involving a worker’s compensation nonsubscriber. A *587 jury found appellant Katy Springs & Manufacturing, Inc. liable for negligence and awarded appellee Joseph Favalora $779,627.02 in compensatory damages. Katy Springs appeals the judgment in eight main issues and a number of sub-issues. We modify the trial court’s judgment to delete the $100,000 award for future mental anguish and affirm the judgment as modified.
I. SUMMARY FACTUAL & PROCEDURAL BACKGROUND
On October 5, 2010, Favalora was working by himself on a manufacturing line producing industrial springs at Katy Springs’ facility in Katy, Texas. During his shift, a bundle of large-gauge wire used to make the springs jammed in a payoff reel that was fabricated by employees at Katy Springs. As Favalora bent down to free the jammed wire, the wire began to escape through a three-inch gap at the top of the reel. The escaping wire hit Favalora in the chest, causing him to fall. Favalora started to feel pain in his chest and neck. He went to an urgent care facility and was later transferred to Memorial Hermann Katy Hospital where a doctor diagnosed him with a cervical radiculopathy. Following the October 5, 2010 accident, Favalora endured long-term chronic neck pain and numbness in his arm. In 2012, he relocated to Louisiana and began consulting with Dr. Bradley Bartholomew, a neurosurgeon. Eventually, after exhausting conservative pain treatments, including epidural steroid injections and prescription pain medications, Dr. Bartholomew recommended spinal surgery. In March 2013, Favalora had the surgery, which fused his C3–4 and C5–6 vertebrae.
Favalora sued Katy Springs for negligence. The case went to trial, and the jury returned a verdict in favor of Favalora. The jury awarded Favalora $204,627.02 for past medical expenses; $25,000 for lost earning capacity in the past; $81,000 in past physical pain and suffering; $100,000 for future physical pain and suffering; $19,000 for past physical impairment; $100,000 for future physical impairment; $150,000 for past mental anguish; and $100,000 for future mental anguish. The judgment was signed on December 16, 2013. Katy Springs filed a motion for new trial, which was denied by the trial court in an order dated February 24, 2014. Katy Springs timely appealed. Katy Springs appeals the judgment in eight main issues and a number of sub-issues, which we summarize here:
1. The evidence is legally and factually insufficient to sustain the jury’s finding on negligence.
2. The evidence shows that Favalora was the sole cause of his injuries.
3. The evidence is (1) legally insufficient to sustain the jury’s award for past medical expenses; (2) legally insufficient to sustain the jury’s awards for past and future mental anguish; and (3) legally and factually insufficient to sustain the jury’s awards for past and future physical impairment.
4. The trial court erred in admitting evidence of Favalora’s damages because (1) the admission of the full amounts of Favalora’s medical bills rather than the amounts received by the providers from a third party violated Civil Practice and Remedies Code section 18.001; and (3) the trial court should have allowed additional pretrial discovery on the damage amounts. Katy Springs further contends (4) the trial court allowed Favalora to *588 submit duplicative evidence of medical bills; and (5) the trial court erred in striking Katy Springs’ counter-affidavit.
5. Favalora’s counsel engaged in improper jury argument that was incurable.
6. The trial court erred in excluding evidence of Favalora’s prior illegal drug use.
7. The jury charge was “fraught with errors of inclusion and exclusion.”
8. The trial court erred in denying Katy Springs’ motion to reopen evidence and motion for new trial.
We consider each issue and the related sub-issues in turn.
II. SUFFICIENCY OF THE EVIDENCE TO SUPPORT JURY’S FINDING OF NEGLIGENCE
In its first issue Katy Springs contends the evidence is legally and factually insufficient to support the jury’s finding of negligence. Katy Springs specifically challenges the jury’s findings on the duty, breach, and causation elements.
A. Standard of Review
When an appellant challenges the legal sufficiency of the evidence on a matter for which he did not have the burden of proof, he must demonstrate on appeal that there is no evidence to support the adverse findings. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004).
When we evaluate a factual sufficiency challenge, we must consider and weigh all the evidence; we can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003).
B. Duty & Breach
In order to establish negligence, the plaintiff must produce evidence to establish the existence of a duty and a breach of that duty. Nat’l Convenience Stores, Inc. v. Matherne, 987 S.W.2d 145, 149 (Tex.App.—Houston [14th Dist.] 1999, no pet.).
*589 Under Texas law, an employer has a well-established non-delegable and continuous duty to furnish reasonably safe instrumentalities with which its employees are to work. Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 215 (Tex.2015). Therefore, Katy Springs, as Favalora’s employer, had a duty to furnish Favalora with reasonably safe machinery.
To establish a breach of this duty, Favalora had to prove either that Katy Springs did something an ordinarily prudent employer exercising ordinary care would not have done under the circumstances, or that Katy Springs did not do that which an ordinarily prudent employer would have done in the exercise of ordinary care. Id.
The evidence is legally and factually sufficient to support the jury’s finding that Katy Springs breached its duty to furnish Favalora with reasonably safe machinery. At the time of the accident, Katy Springs owned two pay-off reels—the company-made reel and a “yellow reel” made by Spectral Systems. The company-made reel lacked two safety mechanisms that the yellow reel had: (1) a safety brake intended to prevent creeping of the basket when the machine is stopped, and (2) containment arms designed to allow wire to escape only from a particular area, known as the “escapement area.” The steel support arms of the company-made reel had deep gouges that trapped the wire and caused it to build tension with each revolution. Instead of containment arms to prevent wire from escaping, the top of the company-made reel had a three-inch gap that allowed the tensioned wire to escape in a 360–degree pattern.
The jury heard testimony from several of Katy Springs’ employees. These employees generally agreed that Favalora should “run away” if the wire started escaping from the three-inch gap after having become trapped by the gouges. The employees confirmed that wire had escaped from the reel in the past. Favalora testified that wire escaped from the company-made reel twice during his shift on October 4, 2010. Despite these concerns, Katy Springs made no effort to repair or change the design of the company-made reel.
Based on the testimony and evidence, reasonable jurors could have concluded that Katy Springs did not act as a reasonable employer when it allowed Favalora to work on the company-made reel that lacked any safety features and was recognized as being unsafe by several Katy Springs employees. The evidence furnishes some reasonable basis for fair-minded people to reach the conclusion that Katy Springs breached its duty to provide Favalora with reasonably safe machinery. Furthermore, based on our review of the entire record, the evidence supporting the jury’s finding that Katy Springs breached its duty is not so weak, and the evidence to the contrary is not so overwhelming, that the finding should be set aside. Therefore, the evidence was legally and factually sufficient to support the jury’s finding that Katy Springs breached its duty to provide Favalora with reasonably safe machinery. See LMC Complete Auto., Inc. v. Burke, 229 S.W.3d 469, 477 (Tex.App.—Houston [1st Dist.] 2007, pet. denied).
*590 C. Proximate Cause
A plaintiff must prove that the defendant’s negligence was the proximate cause of his injuries. Id.
The test for cause in fact is whether the negligent act or omission was a substantial factor in bringing about the injury, without which the harm would not have occurred. Id.
Generally, the issue of proximate cause is a question of fact. McClure v. Allied Stores of Tex., Inc., 608 S.W.2d 901, 903 (Tex.1980).
The cause-in-fact element is satisfied in this case. Katy Springs built the company-made reel from which the wire escaped. The wire escaped because of the gouges in the support arms, which trapped the wire and allowed it to build tension, and the three-inch gap at the top of the reel, which allowed the tensioned wire to escape the confines of the company-made reel. When the wire escaped on October 5, 2010, it impacted Favalora and caused him to fall. The jury could have concluded from this evidence that Katy Springs’ failure to provide Favalora with reasonably safe machinery was a substantial factor in his fall, one without which his fall would not have occurred. See, e.g., Nw. Mall, Inc. v. Lubri–Lon Int’l, Inc., 681 S.W.2d 797, 803 (Tex.App.—Houston [ 14th Dist.] 1984, writ ref’d n.r.e.).
The evidence also supports a conclusion that Favalora’s injuries were foreseeable. Katy Springs was aware that the company-made reel posed a safety hazard. The company’s training program included the instruction to “run away” if the wire began to escape from the company-made reel. The company-made reel had deep gouges that caused the wire to build tension during operation. An employee testified that wire had escaped from the gap on at least two prior occasions. Favalora testified that wire had escaped twice since he started working at Katy Springs. The jury could have concluded from this evidence that Katy Springs should have anticipated the dangers that its company-made reel posed. See, e.g., Lubri–Lon, 681 S.W.2d at 803.
To the extent Katy Springs argues that expert testimony was necessary to establish causation, we disagree. “[N]on-expert evidence alone is sufficient to support a finding of causation in limited circumstances where both the occurrence and conditions complained of are such that the general experience and common sense of laypersons are sufficient to evaluate the conditions and whether they were probably caused by the occurrence.” Morgan v. Compugraphic Corp., 675 S.W.2d 729, 732 (Tex.1984).
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:
[Favalora’s counsel]: Do you believe that Joseph [Favalora], based on what he’s told you, was injured at that time?
[Dr. Bartholomew]: Yes, sir.
[Favalora’s counsel]: 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]?
[Dr. Bartholomew]: 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. See, e.g., 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).
Katy Springs also emphasizes that Dr. Bartholomew characterized Favalora’s injuries as a worsening of a preexisting condition. It is axiomatic that a tortfeasor takes a plaintiff as he finds him. Thompson, 297 S.W.2d at 329.1
In sum, the evidence of causation furnishes some reasonable basis for fairminded people to reach the conclusion that Katy Springs’ negligence proximately caused Favalora’s injuries. The evidence supporting the jury’s finding that Favalora’s injury was caused by Katy Springs’ negligence is not so weak, and the evidence to the contrary is not so overwhelming, that the finding should be set aside. Therefore, the evidence was legally and factually sufficient to support the jury’s finding that Katy Springs’ breach proximately caused Favalora’s injuries.
III. WHETHER FAVALORA’S CONDUCT WAS THE SOLE CAUSE OF HIS INJURIES
In its second issue, Katy Springs contends that Favalora was the sole cause of his injuries. It asserts that had Favalora turned the lathe off before approaching the reel, the incident would not have happened. Katy Springs further argues that Favalora’s testimony was conflicting on this issue.
In an action by an employee against a nonsubscriber employer, “it is not a defense that: (1) the employee was guilty of contributory negligence; (2) the employee assumed the risk of injury or death; or (3) the injury or death was caused by the negligence of a fellow employee.” Hall v. Timmons, 987 S.W.2d 248, 254–55 (Tex.App.—Beaumont 1999, no pet.).
It is the province of the jury to resolve the conflicts in the evidence. Tex. Lab. Code Ann. § 406.033(a). We overrule Katy Springs’ second issue.
IV. SUFFICIENCY OF THE EVIDENCE TO SUPPORT JURY’S DAMAGE AWARDS
In its third issue, Katy Springs challenges the sufficiency of the evidence to support the jury’s award of damages. In three sub-issues, Katy Springs contends:
(1) the evidence is legally insufficient to justify the award for past medical expenses;
(2) the evidence is legally insufficient to justify the award for past and future mental anguish; and
(3) the evidence is legally and factually insufficient to justify the award for past and future physical impairment.
We consider each sub-issue in turn.
A. Past Medical Expenses
In its first sub-issue, Katy Springs argues the evidence supporting the jury’s award of past medical expenses is legally insufficient. Katy Springs’ argument focuses on the existence of a causal nexus between the event sued upon and the plaintiff’s injuries. Katy Springs claims that the only evidence of a compensable injury consists of the medical records submitted by Favalora. According to Katy Springs, the medical records are no substitute for expert testimony on causation because laymen lack the requisite knowledge to understand the intricacies of neck injuries and surgeries. Katy Springs does not claim on appeal that the medical expenses were not reasonable and necessary, and, except to the extent Katy Springs raises an issue regarding the erroneous admission of duplicative medical bills (an issue we consider in Section V.D below), it has not challenged the amount the jury awarded for past medical expenses. We therefore consider only whether a causal nexus existed between the event sued upon and Favalora’s injuries.
A plaintiff can recover only for injuries caused by the event made the basis of suit. Id.
Applying these principles, we conclude there is some evidence to support the jury’s award. The evidence shows that Favalora was in good health prior to beginning his employment at Katy Springs. Favalora 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 several weeks of working at Katy Springs, Favalora’s supervisors assigned him to work on a production line with the company-made reel. During Favalora’s shift, wire escaped from the company-made reel at a high velocity and struck Favalora in the chest. After the accident, *594 Favalora suffered excruciating pain and had to undergo spinal surgery that fused several of his vertebrae. Dr. Bartholomew stated that the fusion surgery would permanently affect Favalora’s ability to participate in certain physical activities and that Favalora’s mobility would be permanently limited.
This evidence establishes a sequence of events from which the trier of fact may infer that the wire escaping from the company-made reel caused Favalora to suffer injury. And, as discussed in Section II.C above, there is ample evidence supporting the jury’s finding that Katy Springs’ negligence aggravated Favalora’s earlier injuries and caused him additional injuries. See Morgan, 675 S.W.2d at 733. We overrule this sub-issue.
B. Past and Future Mental Anguish
In the second sub-issue, Katy Springs contends the evidence is legally insufficient to support the jury’s award for past and future mental anguish. Question 2 of the trial court’s charge asked what sum of money would fairly and reasonably compensate Favalora for his injures, if any, that resulted from the occurrence in question. For mental anguish sustained in the past, the jury’s answer was $150,000. For future mental anguish, the jury awarded Favalora $100,000.
1. Applicable Law
Under Texas law, mental anguish damages are recoverable in virtually all personal-injury actions, including negligence actions. Hancock, 400 S.W.3d at 68 (internal quotation and editorial marks omitted).
Direct evidence can take the form of the claimant’s own testimony or that of a third party or expert witness. Gunn Infiniti, Inc. v. O’Byrne, 996 S.W.2d 854, 861 (Tex.1999).
Mental anguish includes the mental sensation of pain resulting from such emotions as grief, severe disappointment, indignation, 383 S.W.3d 146 (Tex.2012).
Recovery is warranted in such cases where the plaintiff’s mental pain has risen to such a level that it has rendered him or her incapable of dealing with certain everyday activities. For instance, as a result of the mental pain, the plaintiff suffers from a myriad of negative emotions; some of these emotions may manifest themselves in such a way as to make it difficult for the plaintiff to eat, sleep, work, socially interact, or carry on any other activity which, until the time of the alleged injury, he or she could accomplish on a day-to-day basis without difficulty.
Comstock Silversmiths, Inc. v. Carey, 894 S.W.2d 56, 58 (Tex.App.—San Antonio 1995, no writ).
A jury cannot automatically infer mental anguish once any physical injury is sustained. SunBridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 251–52 (Tex.App.—Texarkana 2005, no pet.).
To support an award for future mental anguish, a plaintiff must demonstrate a reasonable probability that he would suffer compensable mental anguish in the future. N.N. v. Inst. for Rehab. & Research, 234 S.W.3d 1, 10 (Tex.App.—Houston [1st Dist.] 2006, no pet.).
2. Related to Favalora’s Mental Anguish
As an initial matter, our review of the evidence is limited. Because the jury provided separate awards for physical pain and suffering, physical impairment, and mental anguish, evidence related to Favalora’s physical pain and suffering and *596 physical impairment is not relevant to the jury’s award of mental anguish. See, e.g., Rice Food Mkts., Inc. v. Williams, 47 S.W.3d 734, 739 (Tex.App.—Houston [1st Dist.] 2001, pet. denied) (where jury made separate awards for pain and mental anguish, evidence of plaintiff’s pain was not relevant to the defendant’s challenge of the award for mental anguish).
Favalora testified regarding the personal struggles he faced after the injury. Many of these struggles were associated with the financial effect of being physically unable to work and incurring medical expenses. In response to a question about his experiences during the first few weeks after the accident, Favalora stated:
I’m not able to do anything.... I didn’t leave my apartment. I didn’t do anything. First of all, I wasn’t making any money, so I was slowly losing everything I owned by the day. Starts off slow and you sell a piece of furniture here and there. I sold my car. You know, eventually you get to the point where you’re going to Plato’s Closet selling your clothes just to feed yourself and then eventually I lost my apartment.
He further testified:
I was living with my aunt. Thank God she was there to take me in because at this point several months after the accident, I basically lost everything. I think I touched on it earlier, I had to sell my car. I had to—I slowly started selling off pieces of my furniture, my TVs, all that kind of stuff. Eventually I was literally left with a couch and a small TV in my living room. And I could no longer afford to pay the rent.
After he relocated to Louisiana, Favalora started consulting with Dr. Bartholomew. It became apparent to Favalora that he might have to have another surgery. When discussing this possibility at trial, Favalora stated, “I was not happy about it.” In response to a question about his outlook when he started visiting Dr. Bartholomew, Favalora stated:
Well, I already knew I needed surgery. So at this point I was willing—I had lost the job at G–2 [Partners], lost my apartment once again and lost all of my belongings. At that point I really looked at the surgery in a different way that it was now to me more something that I had to do to be able to get on with my life. Because it was just becoming like a detour, like lingering. And the pain wasn’t going away, all of the alternative treatments had failed.
Katie Vollmer, Favalora’s then-girlfriend, also testified about Favalora’s emotional state. Vollmer described Favalora’s mental state prior to the accident as “always smiling” and “always happy.” He was never stressed out even when the couple had financial problems. Favalora was someone she could go to with a problem. After the accident, however, Favalora was “not in a good place” emotionally. Vollmer described Favalora as “quiet and sad” and “not himself.” Vollmer noted that “it was so unlike him to just lay [sic] down or sit down.” “He couldn’t get up and do the things he used to do, and I think that really got to him.”
On the subject of Favalora’s decision to have surgery, Vollmer testified that Favalora was “very optimistic” about the surgery. He was “ready to just feel better.” And after the surgery, “he was still, I mean, very optimistic about, you know, the outcome and hoping, you know, it will finally make him feel better.” Vollmer noted that Favalora was improving emotionally after the surgery. “He just seems like he’s more up and going and ready to go do *597 things.” He was “getting back to himself, you know. He wants to move back here [to the Houston area] and finish school, and he just seems to joke around more and just has more life about him, you know.”
In contrast to Vollmer’s relatively optimistic perspective of Favalora’s mental state, Dr. Bartholomew described Favalora as depressed and recommended that Favalora seek psychiatric treatment. Responding to a question about how Favalora has done since the fusion surgery, Dr. Bartholomew stated, “I recommend—physical therapy is common after a surgery, psychiatric because he’s obviously depressed. And, unfortunately, he’s not done very well. He’s had continuing neck pain and getting very depressed with it.” Dr. Bartholomew continued:
He’s depressed, obviously depressed. And we know that pain and depression go hand in hand. And the longer people have pain, the more likely they are to be depressed and the less likely they are to recover without some treatment for their depression.
Explaining how he knew Favalora was depressed, Dr. Bartholomew stated, “I think he even cried in the office. I mean, he tells me he’s depressed. You can just look at him and talk to him and—I’m pretty sure he cried in the office.” Later in his testimony, the doctor added, “Yeah. I noted in my note of May 30th, 2013, ‘Even almost crying in the office.’ ” Doctor Bartholomew explained that depression is common for people experiencing chronic pain. Discussing Favalora’s future prognosis, Doctor Bartholomew testified:
I think we need to get him, as I recommended, in physical therapy and psychiatric treatment, otherwise he’s going to have a miserable future. He’s already developed depression, basically crying in the office. He’s told me he’s been to the emergency room, not because he had an increase in his pain, just he couldn’t deal with it [the pain], so tired of living with it [the pain]. So I think that, you know, he’s going to become a long-term chronic pain patient. And especially with a psychological overlay from the depression, it’s not a very bright future. That’s why we need to get him into [physical] therapy and get him to a psychiatrist.
With regard to past mental anguish damages, the evidence does show that, as a result of the accident, Favalora experienced some level of mental pain separate and apart from the physical pain and physical impairment. Whereas before the accident, Favalora was “always smiling” and “always happy,” after the accident, he was “quiet and sad” and “very depressed.” This evidence shows that Favalora’s attitude changed after the incident. Favalora also experienced relationship and financial struggles after the accident. He and his girlfriend broke up. He was compelled to move in with an aunt because he could no longer pay his bills. He ultimately had to return to Louisiana as a result of the financial strain. The jury could have inferred from Favalora’s attitudinal changes and the attendant hardships that Favalora had suffered a high degree of mental pain and distress beyond mere worry, vexation, embarrassment, or anger. Therefore, the evidence is legally sufficient to support the jury’s finding of past mental anguish.
With regard to future mental anguish, the evidence does not demonstrate a reasonable probability that Favalora will suffer compensable mental anguish in the future. The severity of Favalora’s injury and the evidence of his mental pain simply do not rise to the level of the severity of the injury and the evidence propounded in other personal-injury cases. For instance, *598 in Id. at 797–98.2
In contrast, the only evidence in the record concerning Favalora’s future mental anguish—separate and apart from the evidence related to Favalora’s pain and suffering and physical impairment—was Dr. Bartholomew’s testimony that Favalora was “very depressed.” Although the words “very depressed” can imply more than mere worry, anxiety, embarrassment, or anger, we must look at the totality of the circumstances as well as the words used. See Gonzalez v. Temple–Inland Mortg. Corp., 28 S.W.3d 622, 626 (Tex.App.—San Antonio 2000, no pet.) (“Testimony in support of mental anguish damages must provide specific details of the nature, duration, and severity of the mental anguish. Conclusory statements are not sufficient.”). We conclude the evidence *599 is legally insufficient to support the jury’s award of future mental anguish damages.
In sum, the evidence was legally sufficient to support the jury’s finding of past mental anguish. However, the evidence was not sufficient to demonstrate a reasonable probability that Favalora would suffer compensable mental anguish in the future. Accordingly, we overrule Katy Springs’ sub-issue challenging the jury’s finding of past mental anguish. We sustain Katy Springs’ sub-issue challenging the jury’s finding of future mental anguish. See Lubbock Cnty. v. Strube, 953 S.W.2d 847, 857 (Tex.App.—Austin 1997, pet. denied).
C. Past and Future Physical Impairment
The jury awarded Favalora $19,000 for past physical impairment and $100,000 for future physical impairment. Katy Springs contends the evidence was legally and factually insufficient to support the jury’s finding of past and future physical impairment.
Physical impairment, sometimes called loss of enjoyment of life, encompasses the loss of the injured party’s former lifestyle. Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 824 (Tex.App.—Houston [1st Dist.] 1999, pet. denied).
Here, Favalora testified that after his injury he could not help care for his ex-girlfriend’s daughter. He explained that he could no longer work out or engage in other physical activities he had enjoyed in the past. Dr. Bartholomew testified that as a result of the double-fusion surgery, Favalora would lose between fifteen and thirty percent of the range of motion in his neck. According to the doctor, this loss of range of motion would make simple tasks, such as descending a staircase, difficult because Favalora will not be able to move his head enough to see his feet. Additionally, Favalora will be unable to lift heavy weights, which will necessarily curtail his ability to work out, an activity he enjoyed before the accident. After reviewing the entire record and given the lack of evidence to the contrary, we conclude this evidence is legally and factually sufficient to support the jury’s finding of past and future physical impairment. See, e.g., Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21, 39 (Tex.App.—Tyler 2003, pet. denied) (upholding award for future physical impairment where evidence showed plaintiff’s injuries impeded his ability to sleep, run, bicycle, participate in triathlons, *600 and play with his children).3
We sustain Katy Springs’ sub-issue relating future mental anguish damages. We overrule the remaining sub-issues in Katy Springs’ third issue.
V. ADMISSION OF MEDICAL BILLING AFFIDAVITS
In its fourth issue, which pertains to the trial court’s admission of medical billing affidavits, Katy Springs raises the following sub-issues:
(1) The trial court erroneously admitted evidence of the full amounts charged by Favalora’s medical providers rather than the discounted amounts the medical providers received from MedStar Funding.
(2) The affidavits submitted by Favalora do not comply with section 18.001 of the Texas Civil Practice and Remedies Code.
(3) The trial court erred in refusing to allow Katy Springs to conduct pretrial discovery for the purpose ascertaining the accuracy of the amounts stated in the billing records.
(4) The trial court erred in allowing Favalora to submit duplicative evidence of his medical bills.
(5) The trial court erred in striking Katy Springs’ section 18.001 counter-affidavit.
We consider each of Katy Springs’ sub-issues in turn.
A. Medical Bills “Actually Paid or Incurred”
During the pretrial and trial stages of this case, the parties engaged in an ongoing dispute concerning the evidence of Favalora’s medical bills. During the discovery process, Katy Springs learned that several of Favalora’s medical providers had sold, at a discount, accounts receivable to MedStar Funding, a company engaged *601 in the business of accounts receivable financing, also known as “factoring.”4 Katy Springs now claims the trial court erred in admitting invoices showing the full amounts charged by the medical providers rather than the amounts the medical providers received in return for selling their accounts receivable to MedStar. Citing Metropolitan Transit Authority v. McChristian, 449 S.W.3d 846 (Tex.App.—Houston [14th Dist.] 2014, no pet.), Katy Springs contends that a plaintiff’s recovery is limited to the amount that the medical providers have a right to be paid, which, in this case, is the amount for which MedStar purchased the accounts receivable from the providers.
In response, Favalora argues that McChristian have no effect on his recovery. Favalora posits that he incurred the full amount of expenses billed by his medical providers because MedStar, which purchased the accounts receivable, is legally entitled to recover the full amount of the charges billed, and he is contractually obligated to pay the full amount to MedStar. Favalora contends MedStar is a contractual assignee that stands in the shoes of its assignor—in this case, the medical providers.
Id. at 398–399.
The factual situation before us does not fit neatly into Id. at 175–76. The evidence therefore indicated that the plaintiff would be required to pay if he were to obtain a recovery in a lawsuit or otherwise acquire the funds.
The Dallas court distinguished Id.
The facts of this case are similar to those of Gallegos, there is no evidence of any contract that prohibited the health care providers from charging *603 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.
The fact that the indigent plaintiff in Haygood, 356 S.W.3d at 399.
Katy Springs has pointed out the following sentence from this court’s opinion in McChristian is misplaced because those cases involved distinguishable circumstances.
The circumstances here involve a factoring arrangement; Haygood, 356 S.W.3d at 391). This case does not require us to address the disparity between higher charges set by medical providers and lower “reasonable” reimbursement rates set by insurers.
This situation, in contrast, involves medical expenses that Favalora is contractually *604 obligated to pay in full. MedStar is the contractual assignee of Favalora’s medical providers. Katy Springs’ position ignores the longstanding principle that “an assignee under Texas common law stands in the shoes of his assignor.” See Haygood.
In a factoring case, where the record 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. Accordingly, we overrule this sub-issue.
B. Compliance with section 18.001, Civil Practice & Remedies Code
Katy Springs next contends Favalora’s Exhibits 39, 41, 43, 49, 51, 52, 53, and 60 do not comply with section 18.001 of the Civil Practice and Remedies Code.
Haygood, 356 S.W.3d at 397.
[A]n affidavit that the amount a person charged for a service was reasonable at the time and place that the service was provided and that the service was necessary is sufficient evidence to support a finding of fact by judge or jury that the amount charged was reasonable or that the service was necessary.
Tex. Civ. Prac. & Rem. Code Ann. § 18.001(b) (West 2015).
The affidavit must:
(1) be taken before an officer with authority to administer oaths;
(2) be made by:
(A) the person who provided the service; or
(B) the person in charge of records showing the service provided and charge made; and
(3) include an itemized statement of the service and charge.
Id. § 18.001(c). In other words, to comply with section 18.001, an affidavit must: (1) state that the amount charged was reasonable; (2) state that the service was necessary; (3) be taken before an officer with authority to administer oaths; (4) be made by the provider or the person in charge of the records showing the service provided; and (5) include an itemized statement of the service and charge. See id. § 18.001; see also id. § 18.002 (West 2015) (sample affidavit forms).
Here, the challenged exhibits contain affidavits that comply with all of the section 18.001, which contains the disjunctive “or” between the phrase, “the person who provided the service,” and *605 the phrase, “the person in charge of records showing the service provided and charge made.” Katy Springs has not identified, and we have not found in the record, any evidence suggesting that Christensen is not the person in charge of the records showing the services provided. In fact, the evidence considered by the court in making its evidentiary rulings suggests the opposite. The contracts between MedStar and the service providers explicitly made MedStar the custodian of the pertinent records.
We overrule this sub-issue.
C. Refusal to Permit Pretrial Discovery on MedStar
Katy Springs contends the trial court erred in “refusing to allow pretrial discovery necessary for [it] to verify the accuracy of amounts stated in medical billing affidavits submitted by [Favalora.]” This statement constitutes the entirety of Katy Springs’ argument regarding the trial court’s decision on Katy Springs’ request for additional discovery. Katy Springs has not cited to any legal authority for the appropriate standards on discovery error. Nor has it cited to authority or explained how the trial court’s error, if any, was harmful. Accordingly, we conclude this issue is inadequately briefed. See Canton–Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 931–32 (Tex.App.—Houston [14th Dist.] 2008, no pet.). By failing to adequately brief this sub-issue, Katy Springs has waived it on appeal. We overrule this sub-issue.
D. Admission of Duplicative Affidavits and Medical Bills
Katy Springs contends the trial court erred by admitting multiple affidavits for the same medical expenses. Specifically, Katy Springs claims that some charges are covered by both an affidavit from the medical provider and the affidavit submitted by MedStar’s Christensen. Our review of the record confirms Katy Springs’ claim that some of the medical bills were submitted twice. For example, in Exhibit 39, Nicole Lilly testified by affidavit on behalf of TOPS Surgical Hospital that Favalora still owed $11,482.97. Lilly attached an itemized bill to her affidavit. Christensen attached the same itemized bill to the MedStar affidavit, which was admitted as Exhibit 60. We conclude, however, that the trial court’s error, if any, was harmless.
The admission and exclusion of evidence are within the sound discretion of the trial court. Id.
The evidence in this case indicates that the jury did not consider the duplicated bills when it determined the amount of past medical expenses to award Favalora. The jury awarded Favalora $204,627.02 for past medical expenses. The following table shows the total amounts Favalora owed for medical services and excludes the amount attested to by Christensen in the MedStar affidavit:
Based on our calculations, the evidence was sufficient to support an award of $207,901.59. The jury awarded only *607 $204,627.02. Because the jury’s damages award is supported by a calculation and evidence not related to the medical bills attached to Christensen’s affidavit, we conclude the trial court’s error, if any, in admitting duplicative medical bills was harmless. See Gulftide Gas Corp. v. Cox, 699 S.W.2d 239, 244 (Tex.App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.). Accordingly, we overrule this sub-issue.
E. Counter-affidavit of Dr. Steiner
In footnote five of its appellant’s brief, buried within its assertions about the trial court’s failure to permit additional discovery, Katy Springs states:
By filing a CPRC 18.001 controverting affidavit of Martin Roth Steiner, MD challenging the necessity of the surgery performed on Plaintiff by Dr. Bartholomew. (SCR–Vol.13, pg.5139). Plaintiff filed a Motion to Strike Counter–Affidavits of Martin Steiner, M.D. on November 5, 2013. (SCR–Vo. 13, pg. 5253). The court granted Plaintiff’s motion. (RR–Vol.5, pgs.131:19–135:22). This issue was preserved for appeal as it was raised in Defendant’s Motion for Judgment Notwithstanding the Verdict. (CR–Vol.l, pg. 110).
To the extent Katy Springs raises an issue here, it is inadequately briefed. Katy Springs has the burden to present and discuss its assertions of error in compliance with the appellate briefing rules. Canton–Carter, 271 S.W.3d at 931.
Even if this issue were adequately briefed, Katy Springs waived any error for appellate review. If a party does not challenge all possible grounds for a trial court’s ruling that sustains an objection to evidence, then the party waives any error for appellate review. See id. Accordingly, we overrule this sub-issue.
Having overruled each of the sub-issues, we overrule Katy Springs’ fourth issue in its entirety.
VI. IMPROPER JURY ARGUMENT
In its fifth issue, Katy Springs complains that Favalora’s counsel’s jury argument was improper.
Katy Springs first argues that counsel’s statements calling for the jury to punish the defendant, and ostensibly to award punitive damages, were improper. Katy Springs identifies two instances of this type of argument. In the first, Favalora’s counsel stated, “You have to decide whether that’s what we want in our workplace, especially industrial—”. Katy Springs objected, and the court sustained the objection. Favalora’s counsel then changed the subject of his argument. In the second instance, Favalora’s counsel stated:
Imagine yourself walking past the Katy Spring factory and you look in the window and you see a worker having trouble with a dangerous machinery. You watch his supervisor tell his supervisor the worker is not picking it up. You watch the shop superintendent see the same thing. Imagine you see the coil come out, before the time it happened with Joseph, in a dangerous way. Imagine that you see Joseph in a meeting with his boss, telling him, I understand what you’re saying. I’m trying. I don’t get it. Imagine that the boss says, Do it, or you’re fired. If you’ve got to run to the bathroom, you run to the bathroom and back. Imagine those things are true. What do you do? Do you give him a pass and walk past the door? Do you knock on the door lightly and ask for a donation, hoping that they learned something from it? Or do you kick in the door and you take it, hoping that it acts as a symbol for what they have done?
Katy Springs complains about the last sentence referring to “kick[ing] in the door.” At trial, Katy Springs objected to these statements and asked the trial judge for a limiting instruction. The trial court complied, sustaining the objection and instructing the jury as requested.
Katy Springs also complains about argument referring to the lack of evidence of Favalora’s drug abuse problems. The thrust of the argument here is that Katy Springs had evidence of Favalora’s drug abuse; the court just failed to admit it. Katy Springs objected. Then, in violation of a motion in limine and in front of the jury, Katy Springs’ counsel referred to the heroin evidence that the trial court had previously excluded. The court then held a bench conference off the record. After the bench conference, Favalora’s counsel continued his argument but did not mention the drug issue again.
Finally, Katy Springs complains about Favalora’s counsel’s reference to a trial setting that took place several months before the trial. Katy Springs argues that this gave the jury the impression another trial had taken place. The reference occurred in close temporal proximity to the argument regarding Favalora’s drug problems. An off-the-record conference was held after Katy Springs’ counsel objected. After the conference, Favalora’s counsel continued his argument but did not mention the previous trial setting.
*609 On appeal, Katy Springs contends only that the complained-of jury arguments were incurable. A jury argument is “incurable” when it is so prejudicial or inflammatory that an instruction to disregard cannot eliminate the harm. Id.
Improper jury argument results in incurable harm only in rare instances, such as an appeal to racial prejudice, calling someone a liar or a fraud, or by making an unsupported charge of perjury. 4Front Eng’red Solutions, Inc. v. Rosales, ––– S.W.3d ––––, –––– – ––––, No. 13–13–00655–CV, 2015 WL 1182462, at *25–26 (Tex.App.—Corpus Christi Mar. 12, 2015, pet. filed).
None of the arguments made by Favalora’s counsel involve appeals to racial prejudice, extreme or personal attacks on the opposing party, unsupported charges of perjury, or inflammatory epithets. The alleged improprieties do not rise to the level of incurable argument. See McChristian, 449 S.W.3d at 855–56 (reference to “snake oil” was not incurable). Accordingly, we overrule Katy Springs’ fifth issue.
VII. EXCLUSION OF DRUG EVIDENCE & DENIAL OF MOTIONS TO REOPEN EVIDENCE & FOR MISTRIAL
Because they both relate to the trial court’s decision to exclude evidence of Favalora’s past drug use, we consider Katy Springs’ sixth and eighth issues together. Katy Springs complains in its sixth issue that the trial court erred in excluding evidence of Favalora’s past heroin use. Katy Springs offered hospital reports as evidence of specific instances *610 when Favalora was taken to the hospital after allegedly overdosing on heroin. According to Katy Springs, if the court had admitted the evidence, then Katy Springs could have used the evidence to impeach Favalora’s credibility.
We review the trial court’s decision to admit or exclude evidence under an abuse of discretion standard. rule 608(b)). The trial court did not abuse its discretion in excluding the evidence.
In its eighth issue, Katy Springs asserts that the trial court erred in denying its Motion to Reopen Evidence and its Motion for Mistrial. Katy Springs’ argument on appeal is based on the trial court’s improper exclusion of evidence pertaining to Favalora’s past abuse of illegal drugs. The question of reopening a case for the purpose of admitting additional evidence is within the sound discretion of the judge. Tex. Turnpike Auth. v. McCraw, 458 S.W.2d 911, 913 (Tex.1970).
Here, Katy Springs sought to introduce the evidence at issue for the purpose of impeaching Favalora. The evidence was not admissible for this purpose. Therefore, we cannot conclude that the trial court abused its discretion in denying Katy Springs’ motions. Accordingly, we overrule Katy Springs’ sixth and eighth issues.
VIII. JURY CHARGE ERROR
In its seventh issue, Katy Springs complains that the trial court improperly included instructions that were not supported by evidence and excluded requested instructions. Katy Springs presents its arguments in six sub-issues.
The entirety of Katy Springs’ contentions on the first sub-issue consists of the following:
The Court improperly excluded the instruction “A corporation and all other persons are equal before the law and must be treated as equals in a court of justice. [sic] Appellant timely objected and presented the Court with the proper instruction[.]
The entirety of Katy Springs’ contentions on the third sub-issue consists of the following:
The Court improperly segregated damage elements in Question No. 2 and should have listed physical pain and mental anguish as one element and not separate elements of damage[.]
The entirety of Katy Springs’ contentions on the fourth sub-issue consists of the following:
The Court improperly excluded Appellant’s Requested Instruction No. 1 that the mere occurrence of an even causing injury is not evidence of negligence. Appellant provided case law in support *611 of the inclusion of this instruction and it was particularly important given the multiple questionable versions of the alleged incident given by Appellee[.]
The entirety of Katy Springs’ contentions on the fifth sub-issue consists of the following:
The Court improperly excluded Appellant’s Requested Instruction No. 2, which was appropriate as the evidence showed that Appellee was performing the same character of work that he had always done and that other employees were required to do[.9]
The entirety of Katy Springs’ contentions on the sixth and final sub-issue consists of the following:
The Court improperly excluded Appellant’s Requested Instruction No. 3 on mitigation. The evidence at trial supported the inclusion of this instruction and Appellant had preserved the defense.10
Katy Springs does not cite any cases in support of its positions on these sub-issues. Nor does Katy Springs analyze how the trial court’s error, if any, was harmful. These sub-issues are therefore inadequately briefed. See Tex.R.App. P. 38. 1(i); Haas v. George, 71 S.W.3d 904, 914 (Tex.App.—Texarkana 2002, no pet.). By failing to adequately brief these sub-issues, Katy Springs has waived them on appeal. Accordingly, we overrule these sub-issues. We turn now to the second sub-issue.
Katy Springs asserts in the second sub-issue that the trial court erred when it included the following instruction:
You are further instructed that Katy Springs & Manufacturing, Inc. also owed duties to provide rules and regulations for an employee’s safety, to furnish safe policies and procedures and to enforce safe policies and procedures.
Katy Springs argues on appeal that the evidence was insufficient to support the inclusion of this instruction:
[Favalora] provided no evidentiary or legal support the inclusion [sic] of this instruction and there was no evidence adduced at trial that any rule, regulation, policy or procedure was involved in the circumstances surrounding [Favalora’s] alleged incident[.]
However, at trial, Katy Springs objected to this instruction on different grounds—namely, that the instruction misstated the law and was a comment on the weight of the evidence:
Judge, in terms of the instruction, it looks like it’s going to be Page 4 on the Charge of the Court where there is your instruction to Katy Springs, also duties to provide rules and regulations for an employee safety to furnish said policy and procedures, to enforce—and to enforce safe policies and procedures, I don’t think that’s the law. And I think it’s a comment on the weight of the evidence, and we would object to that instruction being included.
To preserve error for appeal, the argument made below must match the argument *612 made on appeal. id. at 618.
Having overruled each of its six sub-issues challenging the jury charge, we overrule Katy Springs’ seventh issue in its entirety.
Because the evidence was insufficient to support the jury’s award for future mental anguish, we modify the judgment to delete the $100,000 award for future mental anguish and affirm the trial court’s judgment as modified.
|1||To the extent Katy Springs’ argument has any bearing on the jury’s award for past medical expenses, the jury was instructed: “Do not include any amount for any condition that existed before the occurrence in question, except to the extent, if any, that such other condition was aggravated by any injuries that resulted from the occurrence in question.” The jury is presumed to have followed the court’s instructions. Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 862 (Tex.2009). Katy Springs did not argue and did not point to any evidence in the record suggesting that the jury did not follow the instruction. Therefore, we presume the jury took Favalora’s prior injury into account when it awarded damages for past medical expenses.|
|2||See also Roberts v. Williamson, 111 S.W.3d 113 (Tex.2003).|
|3||Allen v. Whisenhunt, 603 S.W.2d 242, 244 (Tex.Civ.App.—Houston [14th Dist.] 1980, writ dism’d) (upholding award for physical impairment where evidence showed plaintiff could no longer mow the lawn, play basketball, or engage in manual labor, thus affecting his future employment prospects as well as his ability to engage in activities for his own enjoyment).|
|4||Factoring is a process by which a business sells to another business (the “factor”), at a discount, its right to collect money before the money is paid. Policing Accounts Receivable & Inventory Under Modern Factor’s Legislation, 101 U. Pa. L.Rev. 392, 392 (1952) (explaining typical factoring scenarios).|
|5||Exhibit 56 contains multiple affidavits with attached documentation showing the price Favalora paid for prescriptions. Katy Springs has not asserted any challenge to these affidavits or the amounts charged for the prescriptions.|
|6||The charges in Exhibit 56[E] are identical to the charges in Exhibit 56[D].|
|7||The charges in Exhibit 56[F] are identical to the charges in Exhibit 56[D].|
|8||Exhibit 56[H] was supported by three prescription billing reports. The second report contained charges that occurred before the accident. The first and third reports were generated on different dates but showed identical charges. Therefore, we counted only the first billing report.|
|9||The requested instruction reads as follows: “When, at the time of his injury, the employee was doing the same character of work that he had always done and that other employees were required to do the employer was not negligent.”|
|10||The requested instruction reads as follows: “Do not include any amount for any condition resulting from the failure, if any, of Joseph Favalora to have acted as a person of ordinary prudence would have done under the same or similar circumstances in caring for and treating his injuries, if any, that resulted from the occurrence in question.”|