Opinion
05-23-00245-CV
12-30-2024
On Appeal from the 429th Judicial District Court Collin County, Texas Trial Court Cause No. 429-00847-2019
Before Justices Molberg, Nowell, and Kennedy
MEMORANDUM OPINION
KEN MOLBERG JUSTICE
In this personal injury suit, appellants Esteban Villalobos and his wife, Rosalinda Elizondo, appeal a take-nothing judgment, following a jury trial, on their negligence claims against appellees Robert Tvrs and his employer, Texas Star Commercial Maintenance, Inc. (Texas Star). Appellants argue the trial court reversibly erred by admitting evidence of Tvrs' cancer, admitting evidence of Villalobos's workers' compensation benefits, and providing an insufficient curative instruction and denying related motions for mistrial after appellees' counsel asked about attorneys' fees under the Texas Labor Code. We affirm the judgment.
I. Background
On March 26, 2018, as Tvrs drove a Dodge Ram pickup with an attached tree-limb-filled trailer for his employer, Texas Star, Tvrs rear-ended a street sweeper driven by Villalobos. The collision ejected Villalobos from the street sweeper, causing him serious injuries and requiring emergency medical personnel to transport Villalobos from the scene by helicopter. Villalobos was in a coma for about six weeks and was hospitalized for about six months afterwards.
In 2019, Villalobos and Elizondo sued Tvrs and Texas Star's owner, Chase Walker, asserting negligence claims and seeking damages. Villalobos and Elizondo twice amended their petition, and in their latest pleading, they asserted claims against Tvrs and Texas Star, but not against Walker. In response, Tvrs and Texas Star filed a pleading that generally denied appellants' claims and asserted various affirmative defenses, including contributory negligence by Villalobos.
The case was tried to a jury in January 2023. Presiding over the trial was a visiting judge, sitting by assignment. Trial lasted four days. More than 100 exhibits were admitted into evidence, including the 9-1-1 call recording, a certified copy of the Texas Peace Officer's Crash Report, a brochure for the Kubota street sweeper, photographs and a video of the scene, a video from a later inspection of the scene, cell phone records for Tvrs, curricula vitae from the various expert witnesses who testified, and various medical bills and records for Villalobos.
Eleven witnesses testified, some by video deposition excerpts. Testifying live were a lost-earning-capacity expert, a family nurse practitioner, Elizondo, a neuropsychologist, a police officer, two accident reconstructionists, and Walker, as a corporate representative for Texas Star. Witnesses whose video deposition excerpts were admitted into evidence included an eyewitness who called 9-1-1, a medical expert, and Tvrs.
During trial, the parties disputed particular evidence and questions, including, as are pertinent to this appeal, Tvrs's testimony regarding his cancer diagnosis and what he referred to as "chemo brain," evidence of Villalobos's receipt of workers' compensation benefits, and a question regarding appellants' counsel's alleged entitlement to attorneys' fees under the Texas Labor Code.
Liability was sharply contested. As to the events that led up to the collision, the jury heard from Tvrs but not from Villalobos or Elizondo. When asked if he could describe in his own words how the crash occurred, Tvrs answered:
Villalobos did not testify. Elizondo testified, but not as to any of the events leading to the collision.
Yes. I was traveling . . . on Preston Parkway, I believe is the name of it, and I was in the left lane of the two-lane road there - actually four-lane road there. And I was driving 55 miles an hour, and there were two vehicles in the right-hand lane alongside of me. I looked in my mirror to check the situation between myself and the other vehicles, and the overall check that you do when you're towing a vehicle. And when I looked back to the left, there was a street sweeper in front of me. And I applied my brakes as quickly and as much as I could and there was not enough room to get stopped. And I didn't want to hit the vehicles that were alongside of me, so I was limited in my choices, and I struck the street sweeper.
Tvrs denied using his cell phone while driving and did not feel he had any responsibility for the accident. However, Tvrs's cell phone records from the day of the accident were admitted into evidence, and appellants' counsel used that information to argue that Tvrs was on a call lasting two minutes and fifty-one seconds in the minutes before the crash.
The jury also heard about the events preceding the collision from Sandra Yansky, an eyewitness who called 9-1-1. Yansky had been traveling behind Tvrs's truck and trailer before the crash. She did not see the accident happen but heard brakes screeching, saw a lot of smoke, and saw Villalobos's body up in the air and drop to the ground. She parked her car, got out to check on Villalobos, who was unconscious, went back to her car to get her phone, and called 9-1-1. Though she was not sure at the time what he was doing, she testified that before the collision occurred, and from 800 feet back from the intersection, she saw Villalobos operating the street sweeper in the median, not in the road.
The police officer who testified, Lieutenant Kyle Peck, testified about his investigation of the scene after the collision and the crash report he completed, which was admitted into evidence as defense exhibit one. Peck testified, in part:
[APPELLEES' COUNSEL]: Yes, sir. Who did you find to be the primary cause of the accident?
[LT. PECK]: Mr. Esteban.
[APPELLEES' COUNSEL] Villalobos?
[LT. PECK]: Yes.
[APPELLEES' COUNSEL]: Okay. And did you also find a factor that may have contributed to the accident?
[LT. PECK]: That is correct.
[APPELLEES' COUNSEL]: And what did you find as a factor that may have [contributed] to the accident?
[LT. PECK]: Driver inattention.
[APPELLEES' COUNSEL]: And that would have been on who?
[LT. PECK]: Mr. Tvrs.
The parties' accident reconstructionists provided differing opinions to the jury. Appellants' expert, Jeff Vick, estimated the sweeper had been in Tvrs's lane for approximately 6.8 to 8.5 seconds at the time of impact, which, in his view, was enough time for Tvrs to apply the brakes and stop his vehicle without hitting the sweeper. Vick opined that if Tvrs had been looking ahead of him, Tvrs should have been able to stop without hitting the sweeper from the distance depicted in the animation presented to the jury. And he testified it was not reasonable for a person to look behind and check on his load while approaching an intersection with a vehicle entering that person's lane. In contrast, appellees' expert, Chandler Benton Randle, testified there was no way for Tvrs to avoid the impact based on the speed he was traveling and the information he had, explaining that the sweeper's maximum speed of eight miles per hour presented a unique condition. In Randle's opinion, given the circumstances, it was not prudent for Villalobos to pull out into the roadway, and there was a high probability that there would have been an impact between the truck, trailer, and sweeper even if one assumed that Tvrs never turned his head. Randle did not fault Tvrs for checking his load and opined that the identifiable cause of the accident was that Villalobos pulled out, turned left when Tvrs was very close, and thereby created a hazard on the road that day.
After both sides rested and closed, the jury returned a verdict finding that the collision was proximately caused by the negligence of Tvrs, Texas Star, and Villalobos, and finding their percentages of responsibility for the collision to be twenty-five percent, five percent, and seventy percent, respectively. The verdict was not unanimous, as only ten of the twelve jurors agreed with the answers.
Following the jury's verdict, the trial court signed the take-nothing judgment on Villalobos's and Elizondo's claims on February 21, 2023. This appeal followed.
II. Issues & Applicable Standards
A. Issues on Appeal
Appellants argue the trial court committed reversible error by (1) admitting evidence regarding Tvrs's cancer and (2) admitting evidence of Villalobos's worker's compensation benefits, providing an insufficient curative instruction and denying their related motions for mistrial after appellees' counsel asked about appellants' counsel's entitlement to attorneys' fees under the Texas Labor Code.
B. Applicable Standards
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Fleming v. Wilson, 610 S.W.3d 18, 21 (Tex. 2020) (per curiam).
We also review a trial court's denial of a motion for mistrial for an abuse of discretion. Deese v. Combined Specialty Ins. Co., 352 S.W.3d 864, 866 (Tex. App.-Dallas 2011, no pet.).
A trial court abuses its discretion if it acts without reference to any guiding rules and principles such that the ruling is arbitrary or unreasonable. Pressley v. Casar, 567 S.W.3d 327, 333 (Tex. 2019) (per curiam); see Deese, 352 S.W.3d at 866. The trial judge has no discretion in determining what the law is or in applying law to the facts. Pressley, 567 S.W.3d at 333.
Erroneous admission of evidence requires reversal only if the error probably (though not necessarily) resulted in an improper judgment. Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 871 (Tex. 2008); Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004); see Tex. R. App. P. 44.1(a).Erroneous admission of evidence is harmless if it is merely cumulative, "[b]ut beyond that, whether erroneous admission is harmful is more a matter of judgment than precise measurement." Armstrong, 145 S.W.3d at 144; see Sevcik, 267 S.W.3d at 871. When determining whether an erroneous admission of evidence was harmful error, the appellate court may consider the amount of emphasis placed on the erroneous evidence and whether the admission was calculated or inadvertent. Sevcik, 267 S.W.3d at 873-74; Armstrong, 145 S.W.3d at 144. We are to "evaluate the whole case from voir dire to closing argument, considering the 'state of the evidence, the strength and weakness of the case, and the verdict.'" Sevcik, 267 S.W.3d at 871, n.14 (quoting Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 841 (Tex. 1979)); see Armstrong, 145 S.W.3d at 144 (stating reviewing court is to review entire record and require the complaining party to demonstrate the judgment turns on the particular evidence admitted); see also Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 883 (Tex. 2014) (making same point, citing Armstrong, in part).
Similarly, a party complaining of the erroneous exclusion of evidence is not required to prove that "but for" the erroneous exclusion of evidence, a different judgment would necessarily have resulted. JBS Carriers, Inc. v. Washington, 564 S.W.3d 830, 836 (Tex. 2018). In Washington, id., the court stated:
[I]f erroneously excluded evidence was "crucial to a key issue," then the error was likely harmful-that is, it probably caused the rendition of an improper judgment-unless the evidence was cumulative or the rest of the evidence was so one-sided that the error likely made no difference in the judgment.
In Bohmfalk v. Linwood, 742 S.W.2d 518, 521 (Tex. App.-Dallas 1987, no writ), which involved alleged error in the exclusion of certain evidence, we stated, "[T]he fact that another witness may have given the same or substantially the same testimony is not the decisive factor" in assessing harm. Instead, "[t]he decisive factor is whether the excluded testimony would have added substantial weight to the complainant's case. If so, it is error, and quite possibly harmful error, to exclude the testimony."
Curative instructions "typically consist of 'sustain[ing] the objection . . . and instruct[ing] the jury to disregard.'" In re Rudolph Automotive, LLC, 674 S.W.3d 289, 311 (Tex. 2023) (original proceeding) (quoting Miller v. Bock Laundry Mach. Co., 568 S.W.2d 648, 652 (Tex. 1977)). 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), and that presumption is not to be disregarded without powerful reason. In re Rudolph Automotive, LLC, 674 S.W.3d at 312 (stating, "The presumption . . . is not a featherweight to be disregarded without some powerful reason. Our judicial system's confidence in jurors' ability to make weighty decisions rests on our confidence that they follow all the requests we impose on them, including curative instructions.").
Mistrial "halts trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile" and "is an appropriate remedy only in 'extreme circumstances' for 'a narrow class of highly prejudicial and incurable errors.'" In re D.R.P., No. 04-21-00112-CV, 2021 WL 4555818, at *3 (Tex. App.-San Antonio Oct. 6, 2021, pet. denied) (mem. op.) (quoting F.C. v. Tex. Dep't of Family & Protective Servs., No. 03-19-00625-CV, 2020 WL 101998, at *8 (Tex. App.-Austin Jan. 9, 2020, no pet.) (mem. op.)); see Givens v. Anderson Columbia Co., 608 S.W.3d 65, 71 (Tex. App.-San Antonio 2020, pet. denied) ("Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required.") (quoting In re E.O.E., 508 S.W.3d 613, 624 (Tex. App.-El Paso 2016, no pet.)).
III. Tvrs's Cancer
We first consider whether the trial court committed reversible error by admitting evidence regarding Tvrs's cancer.
Before voir dire, during a discussion regarding various motions in limine that had not yet been ruled on, appellees' counsel informed the trial court that Tvrs had stage three cancer. Counsel indicated he wanted to explain why Tvrs was not going to be at the trial by telling the jury in voir dire that Tvrs "is undergoing chemotherapy and is immunocompromised" and to ask the jury if that would affect their judgment in the case. Counsel for Villalobos and Elizondo opposed this, arguing that this would violate the instruction to the jury to not let prejudice, bias, or sympathy play any role in its deliberations. At that point, the following exchange occurred:
THE COURT: Hold on - hold on one second. I have no objection to you telling the jury or the panel during voir dire or even during opening statement, if you want to, that he's ill, but not the reason.
[APPELLEES' COUNSEL]: Fair enough.
During voir dire, counsel for Villalobos and Elizondo did not refer to the fact that Tvrs was ill or explore the venire members' possible sympathies in that regard. Near the end of appellees' questioning of the venire, appellees' counsel made statements consistent with the court's earlier discussion, stating:
Mr. Tvrs is ill and will not be with us in this trial, but you will see him because we have taken - in anticipation, we took his deposition and it's on video. So you'll be able to see him and hear his story.
But is anybody here going to hold it against me or either of my clients that Mr. Tvrs cannot be here throughout this trial and that we are and that y'all are? Is anybody here going to hold that against me?
Because I can assure you, if he could be here, he would be here. Does anybody have an issue with Mr. Tvrs not being here?
The record does not include any response to those comments by any venire members. After the jury and alternates were seated and the remainder of the panel was released, counsel for both sides provided opening statements. Tvrs's cancer was not mentioned during opening statements.
After opening statements, but before Tvrs's deposition testimony excerpts were read to the jury, appellees' counsel again raised the topic of Tvrs's cancer, once again in a discussion over motions in limine. The following exchange occurred:
[APPELLEES' COUNSEL]: [Villalobos and Elizondo's motion in limine] [n]umber 35 . . . says that defense counsel not be allowed to explain to the jury why [Tvrs] is not present in the courtroom or otherwise mention anything about [his] health condition and issues. I concur with what the Court constructed earlier, and I think I stuck to that in terms of saying he's ill, he's not going to be here.
But now we have a different issue because when he was deposed on April 15, 2022, that was after we had learned that Mr. Tvrs had cancer Stage 3, that he had, in his testimony, been undergoing chemotherapy.
And I asked him very specifically, [d]o you have any appreciation whether that chemotherapy has any effect on your memory? And in his deposition he said, [w]ell, I understand that there's a thing called "chemo brain," which affects your ability to remember or recall things.
And then he went on to talk about some of the things that he's not able to recall and has difficulty with his memory because of that treatment.
So while we are not looking to create a sympathy issue in front of the jury, the fact that they're going to play this deposition of Mr. Tvrs where he testifies and they ask him a whole lot of questions about the accident and his memory and what happened and the phone, I think it's relevant that the jury hear that this is a man that, at the time he's giving his deposition, has this condition and has issues with memory. . . .
THE COURT: I understand. Response, quickly, please.
[APPELLANTS' COUNSEL]: Your Honor, I took his deposition - his trial deposition and he didn't have a memory issue. He looked fine. And you will see in the videos - there's two depositions of him. One . . . earlier in the case and then a second one was a trial deposition.
Now, after seeing the video that we are going to play to the jury, the defendant has their opportunity to put on their portion of that same deposition. Now, in between there, Your Honor can see and make a
ruling on whether or not he really had chemo brain or not. He did not, Your Honor. He came across just fine.
THE COURT: All right. Well, I suppose I will wait and listen to it.
[APPELLEES' COUNSEL]: Fair enough.
Before appellees' counsel introduced Tvrs's deposition excerpts, the parties again argued about whether or not appellees could introduce evidence referring to Tvrs's cancer. The trial court allowed the testimony over Villalobos and Elizondo's objections regarding relevance and unfair prejudice.
The jury then heard the following excerpt from Tvrs's deposition:
[APPELLEES' COUNSEL]: And, Mr. Tvrs, we're here at my office this morning to take your deposition for the trial of this case. Do you currently have any medical condition that would prevent you from participating in the trial of this case?
[TVRS]: Yes. I'm Stage 3 multiple melanoma cancer.
[APPELLEES' COUNSEL]: And tell us a little bit about that. What effects does that condition have on your ability to recall events or to testify in this case? So, Mr. Tvrs, can you tell us what effect your medical condition has on your recall?
[TVRS]: I'm currently under[going] chemotherapy, and there's a condition - I didn't learn of until I got it - called chemo brain.
[APPELLEES' COUNSEL]: And what is your understanding of chemo brain?
[TVRS]: It wipes out your memory terribly. I - I can stand up and walk across the room, and before I get to the door, I don't remember why I walked across the room.
[APPELLEES' COUNSEL]: All right. Now, Mr. Tvrs, are you under - about to undergo any type of medical treatment?
[TVRS]: Yes.
[APPELLEES' COUNSEL]: And what type of medical treatment are you about to undergo?
[TVRS]: Stem cell transfer.
In total, this testimony took under two minutes and comprised about one page of a voluminous record.
Later, outside the presence of the jury, Villalobos and Elizondo's counsel asked the trial court to instruct the jury to disregard any of the testimony that was put on by appellees as to the stage three cancer and "chemo brain" Tvrs testified to and alternatively asked for a mistrial. The trial court denied both requests.
After this ruling, no other reference was made to Tvrs's cancer, aside from a brief reference to it by Villalobos and Elizondo's counsel during final argument. In the court's charge, the first instruction to the jury stated, "Do not let bias, prejudice or sympathy play any part in your deliberations."
Villalobos and Elizondo's counsel stated:
I want to talk about this cancer thing, this chemo brain. I just want you to know that deposition, first deposition, he didn't have cancer. They didn't tell you that. There's no chemo brain.
If he says it's a thousand feet and that's where he started looking to the right, looking for his load, these three football fields, he cannot explain . . . [the] 12 seconds of travel why he's not looking forward.
Even if we assume, as Villalobos and Elizondo argue, that evidence of Tvrs's cancer was irrelevant, unduly prejudicial, and erroneously admitted, see Tex. R. Evid. 401-403, we conclude the trial court did not commit reversible error regarding this evidence because, based on the record before us, we cannot conclude any error in admitting the evidence of Tvrs's cancer probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a) (prohibiting reversal unless the error complained of (1) probably caused the rendition of an improper judgment or (2) probably prevented the appellant from properly presenting the case to this Court).
During oral argument, appellees' counsel argued that Villalobos and Elizondo waived their relevance and unfair prejudice objections at trial by failing to state, "Objection, form" during the cancer-related portion of Tvrs's deposition. We reject that argument. Civil procedure rule 199.5(e) states, "Objections to questions during the oral deposition are limited to "Objection, leading" and "Objection, form" and "[a]ll other objections need not be made or recorded during the oral deposition to be later raised with the court." Tex.R.Civ.P. 199.5(e). Comment four to the 1999 amendments to rule 199.5 states, "An objection to the form of a question includes objections that the question calls for speculation, calls for a narrative answer, is vague, is confusing, or is ambiguous."
Appellants have not argued the trial court's alleged errors were harmful under Tex.R.App.P. 44.1(a)(2).
We overrule appellants' first issue.
IV. Worker's Compensation Benefits & Attorneys' Fees
In their second issue, appellants argue the trial court committed reversible error by admitting evidence of Villalobos's worker's compensation benefits, providing an insufficient curative instruction, and denying their related motions for mistrial after appellees' counsel asked about appellants' counsel's entitlement to attorneys' fees under the Texas Labor Code, both matters appellants argue violated the collateral source rule.
A. Collateral Source Rule
"The collateral source rule bars a wrongdoer from offsetting his liability by insurance benefits independently procured by the injured party." Sky View at Las Palmas, LLC v. Mendez, 555 S.W.3d 101, 114 (Tex. 2018) (quoting Mid-Century Ins. Co. v. Kidd, 997 S.W.2d 265, 274 (Tex. 1999)). Stated another way, the rule "precludes any reduction in a tortfeasor's liability because of benefits received by the plaintiff from someone else-a collateral source[,]" and "insurance payments to or for a plaintiff are not credited to damages awarded against the defendant." Haygood v. De Escabedo, 356 S.W.3d 390, 394-95 (Tex. 2011). The collateral source rule is both a rule of evidence and damages. Taylor v. Am. Fabritech, Inc., 132 S.W.3d 613, 626 (Tex. App.-Houston [14th Dist.] 2004, pet. denied). In other words, a defendant is not entitled to present evidence of, or obtain an offset for, funds received by a plaintiff from a collateral source. Id. "The theory behind the rule is that 'a wrongdoer should not have the benefit of insurance independently procured by the injured party, and to which the wrongdoer was not privy.'" Mendez, 555 S.W.3d at 114 (quoting Brown v. Am. Transfer & Storage Co., 601 S.W.2d 931, 934 (Tex. 1980)).
The Texas Supreme Court has recognized the harmful effect the admission of collateral source evidence in the form of worker's compensation benefits can have, describing the effect as "becloud[ing] the issues in the case, divert[ing] the minds of the jury[,]" and "misleading . . . the jury[,]" stating:
We agree . . . that the only effect of such evidence 'was to becloud the issues in the case and divert the minds of the jury.' It can hardly be gainsaid . . . that 'any supposed value that the fact of [a workers' compensation] settlement, or the amount of it, or the negotiations leading up to it, could have as proof would be more than offset by the
misleading effect it would likely have upon the jury.' Especially is this true since the general relevancy of evidence of that character upon the general issues involved is not only very slight but wholly indirect. Certainly it has no direct relevancy to the issues upon which the jury decides whether the third party defendants are negligent, or upon the amount of damages, if any, to be assessed against them.Myers v. Thomas, 186 S.W.2d 811, 813 (Tex. 1945) (citations omitted) (stating this in the context of a compensation recoupment suit).
We have noted similar harmful effects, stating:
Generally, information concerning workers' compensation benefits is inadmissible in a suit against a third-party tortfeasor because it is not material. Pattison v. Highway Insurance Underwriters, 278 S.W.2d 207, 210 (Tex. Civ. App.-Galveston 1955, writ ref'd n.r.e.). Moreover, evidence regarding workers' compensation benefits "would tend to confuse and mislead the jury in trying the issues of the third-party's liability." Pattison, 278 S.W.2d at 210. Exceptions to this rule have been made for impeachment purposes, but only when a witness has given testimony inconsistent with receipt of the benefits.J.R. Beadel and Co. v. De La Garza, 690 S.W.2d 71, 74 (Tex. App.-Dallas 1985, writ ref'd n.r.e.).
Thus, "It is well settled that, as a general rule, evidence concerning worker's compensation benefits is inadmissible in a suit against a third-party tortfeasor because it is immaterial and it has a tendency to confuse the jury." Macias v. Ramos, 917 S.W.2d 371, 374 (Tex. App.-San Antonio 1996, no pet.) (citing Myers, De La Garza, and other cases as support).
B. Evidence of Workers' Compensation Benefits
The first live witness the jury heard testify was appellants' lost-earning-capacity expert, Dr. William Casenave. After a fifteen-minute break, appellees' counsel continued his cross-examination of Dr. Casenave as follows:
[APPELLEES' COUNSEL]: Dr. Casenave, in your analysis, did you take into account any offsets for income that Mr. Villalobos may be receiving?
[DR. CASENAVE]: Any what?
[APPELLEES' COUNSEL]: Offsets. Any credits, any money that he may have been receiving. Are you aware of whether he's receiving any money or not?
[DR. CASENAVE]: Now?
[APPELLEES' COUNSEL]: Yes, sir.
[DR. CASENAVE]: Oh, I'm not aware whether or not.
[APPELLEES' COUNSEL]: All right. I'd like to take a look at -
[APPELLEES' COUNSEL]: Judge, this is Exhibit Number 37 that the plaintiffs admitted into evidence.
[APPELLEES' COUNSEL]: If we look here on the first page, do you see here where Dr. Mercau, I think it is, Dr. Ana Mercau has -
[DR. CASENAVE]: I know her.
[APPELLEES' COUNSEL]: You know Dr. Mercau?
[DR. CASENAVE]: Yeah.
[APPELLEES' COUNSEL]: Okay. And do you see here where she's got Mr. Villalobos, January 3rd, 1960, Ana Mercau, and it's dated 2/10/2020? Do you see that?
[DR. CASENAVE]: Yes.
[APPELLEES' COUNSEL]: All right. Read that narrative there on problem number one.
[DR. CASENAVE]: Patient is a worker's compensation patient who worked driving a cleaning -
[APPELLANTS' COUNSEL]: Your Honor -
. . . .
[APPELLANTS' COUNSEL]: We are getting into a collateral source here, Your Honor.
[APPELLEES' COUNSEL]: It's a document that they admitted into evidence, Judge. It's in evidence.
[APPELLANTS' COUNSEL]: Collateral source.
[APPELLANTS' COUNSEL]: Judge, you made a specific ruling that [appellees' counsel] can't get into this and he again has violated your rulings and your orders to not get into this.
THE COURT: Overruled.
[APPELLEES' COUNSEL]: All right. Go ahead and read that.
[DR. CASENAVE]: Problem one?
[APPELLEES' COUNSEL]: Yes, sir.
[DR. CASENAVE]: Patient is a worker's compensation patient who worked driving a cleaning truck and was struck by another car while his driver's door was open. The patient was expelled from his truck and suffered a traumatic brain injury.
[APPELLEES' COUNSEL]: All right. Have you taken into account at all any of the worker's compensation payments that this gentleman has received over the course of his time after this accident?
[DR. CASENAVE]: No. That is not my practice.
[APPELLEES' COUNSEL]: Gotcha. But if he's receiving benefits now from worker's comp, that would certainly reduce these numbers that you gave?
[DR. CASENAVE]: No, because what I'm dealing with are earning capacity. Worker's comp or insurance, that's not - not getting paid for work.
[APPELLEES' COUNSEL]: Understood. But he is getting paid income, is he not?
[DR. CASENAVE]: That's not an income. I mean, he's getting - he's got a - it's an insurance benefit.
[APPELLEES' COUNSEL]: Right. And are you aware of in this case how much he is receiving from worker's comp for this accident?
[DR. CASENAVE]: No.
[APPELLEES' COUNSEL]: You haven't read that in his deposition?
[DR. CASENAVE]: No.
[APPELLEES' COUNSEL]: And are you aware, sir, that his medical is paid for by the worker's comp?
[DR. CASENAVE]: I would expect that.
Later, when appellants' counsel conducted a re-direct examination, the following exchange occurred:
[APPELLANTS' COUNSEL]: Worker's comp has paid almost $900,000 of medical bills that we introduced. Do you understand that?
[DR. CASENAVE]: I couldn't hear you.
[APPELLANTS' COUNSEL]: Okay. Worker's comp has paid about $900,000 dollars in medical bills in this case. Now, do you understand that after this case, whatever this jury awards, worker's comp has to be paid back? Do you understand that?
[DR. CASENAVE]: Yeah, I understand that in general, yes.
[APPELLANTS' COUNSEL]: Worker's comp has been paying Mr. Villalobos weekly checks since the injury. Do you understand that after this case is over, and if this jury awards him any money, that money goes back to worker's comp? Do you understand that?
[DR. CASENAVE]: That's true. But over the 20-something years I've done this, I've never counted worker's comp payments in, and no other expert I've ever worked with or seen does that. That does not take in - it's not taken into account.
[APPELLANTS' COUNSEL]: Whatever this jury gives Mr. Villalobos, if anything, do you understand that we have to pay worker's comp about $1.4 million off the top? Do you understand that?
[DR. CASENAVE]: I understand that.
Both sides' counsel discussed workers' compensation during closing arguments. In appellants' opening argument, appellants' counsel argued that "workers' comp" would get the $800,000 in past medical and would "get a piece" of the $800,000 in future lost earnings.
Near the end of appellees' closing argument, appellees' counsel stated, in part:
I don't dispute this gentleman was seriously injured. No dispute at all. The good thing is that Lacy Construction provided him with worker's compensation coverage. It took care of him. It took care of his bills at the best facilities. It took care of the treatment that he's had since then; will continue to take care of him. But that doesn't get you a big iceberg of money.
What gets you a big iceberg of money is hiring Ms. Vinton, who does all her work for plaintiffs. Dr. Joyce, who says, oh, he's going to need all of these various things. Well, we saw Dr. De La Plata, who was not a hired expert, who saw Mr. Villalobos after he completed all of his rehabilitation and says, you need a planner. You need an organizer. You need some counseling. Doesn't go into all these various things. But let's give it to him. Let's assume they're going to get all of that treatment. Comp is going to take care of it.
In response, appellants' counsel began final argument by stating, "Except that's not true, what he just told you. Worker[s'] comp is not taking care of it."
C. Question Regarding Attorneys' Fees
Additional references were made to workers' compensation payments during the re-direct examination of the neuropsychologist, Dr. Arthur Warren Joyce. On re-cross, appellees' counsel then asked Dr. Joyce about workers' compensation attorneys' fees under the Texas Labor Code, which prompted appellants' counsel to (1) make objections that were not initially ruled upon but were ultimately sustained, (2) request a curative instruction that was given, although not in the form requested; and (3) twice request a mistrial, which the trial court denied both times.
The additional references were made in the following exchange:
[APPELLANTS' COUNSEL]: Now, regarding these doctors that treated [Villalobos], Pate Rehab, Baylor [H]ospital, and various other very skilled and qualified physicians, they did a good job on him, didn't they?
[DR. JOYCE]: Yes.
[APPELLANTS' COUNSEL]: And is it your understanding that worker's compensation paid them?
A. Yes, I believe that's correct.
[APPELLANTS' COUNSEL]: And is it your understanding that if this jury gives Mr. Villalobos any money for any reason, worker's comp gets first dollar? Do you understand that?
[DR. JOYCE]: I didn't understand that fully, no, but I do now.
Specifically, appellees' counsel asked, "Under the Texas Labor Code, the attorneys representing the plaintiffs seeking recovery are entitled to 25 percent of that recovery. Are you aware of that?" The question was not answered by the witness, and was followed by this exchange:
THE COURT: Okay. Your objection?
[APPELLANTS' COUNSEL]: Yes, sir.
[APPELLANTS' COUNSEL]: Lacks foundation, Your Honor. He just testified. I mean, he might as well just enter - he's already - he's already testified and he's testified to attorneys' fees, so now I'm going to ask him about his attorneys' fees. . . .
THE COURT: Stop. Stop. All I want to know is what your objection is. I don't want to hear
[APPELLANTS' COUNSEL]: Well, Your Honor, I objected before he asked the question for the very reason that he was going to testify with his question. That's exactly what he did.
[APPELLANTS' COUNSEL]: What is your objection?
[APPELLANTS' COUNSEL]: He's throwing attorneys' fees into the case. He's saying that we're entitled to 25 percent of
THE COURT: I need to know your legal objection to the question.
[APPELLANTS' COUNSEL]: Relevance. Lacks foundation.
THE COURT: Sustained.
Appellants' counsel requested an instruction "to disregard what [appellees' counsel] said, that we are not worker's comp lawyers and that we're not getting 25 percent in attorneys' fees." The trial court stated:
Ladies and gentlemen, before we get started with the next witness, there was some testimony just prior to the break we took this morning about worker's comp and attorneys' fees on worker's comp. I'm going to instruct you to disregard any statements about that. There's no evidence in this case about that. So please disregard that.
We are to analyze the alleged improper question in the same way we would analyze alleged improper jury argument. See Luna v. N. Star Dodge Sales, Inc., 667 S.W.2d 115, 120 (Tex. 1984). In Luna, the court stated:
In Standard Fire Insurance Company v. Reese, 584 S.W.2d 835 (Tex. 1979), we set out the factors necessary to show reversible error. Reese applies to all cases in which alleged improper jury argument or improper questioning of a witness takes place.Id. Reese states, in pertinent part:
In the case of improper jury argument, the complainant must prove a number of things. He has the burden to prove (1) an error (2) that was not invited or provoked, (3) that was preserved by the proper trial predicate, such as an objection, a motion to instruct, or a motion for mistrial, and (4) was not curable by an instruction, a prompt withdrawal of the statement, or a reprimand by the judge. 3 McDonald, Texas Civil Practice § 13.17.2 (1970). There are only rare instances of incurable harm from improper argument. The complainant has the further burden to prove (5) that the argument by its nature, degree and extent constituted reversibly harmful error. How long the argument continued, whether it was repeated or abandoned and whether there was
cumulative error are proper inquiries. All of the evidence must be closely examined to determine (6) the argument's probable effect on a material finding. (7) Importantly, a reversal must come from an evaluation of the whole case, which begins with the voir dire and ends with the closing argument. The record may show that the cause is weak, strong, or very close. From all of these factors, the complainant must show 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. Aultman v. Dallas Ry. & Term. Co., 152 Tex. 509, 260 S.W.2d 596 (1953). Rules 434, 503, Tex. R. Civ. P.Reese, 584 S.W.2d at 840.
D. Resolution of Second Issue
We have grave concerns regarding the admission of Villalobos's workers' compensation benefits and the likely prejudicial impact such evidence had in this case, as such evidence was immaterial and tended to becloud the issues and confuse and mislead the jury in trying the issues of appellees' liability. See Myers, 186 S.W.2d at 813; De La Garza, 690 S.W.2d 74; Macias, 917 S.W.2d at 374. We find this especially true because of the calculated, and not inadvertent, manner in which appellees' counsel used this evidence during questioning and in closing argument.
The problem, however, is that despite their timely initial objection, appellants failed to preserve error on their complaints about Villalobos's workers' compensation benefits. While we agree with appellants that they did not open the door to questions or evidence about worker's compensation benefits simply by introducing medical records that referred to Villalobos as a workers' compensation patient, the record shows appellants failed to preserve error by failing to continue to object to evidence of Villalobos's workers' compensation benefits each time appellees' counsel asked about the topic, when appellants had not already secured a running objection to questions on that topic. See Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004) (stating, "The general rule is error in the admission of testimony is deemed harmless and is waived if the objecting party subsequently permits the same or similar evidence to be introduced without objection" but concluding the objection was not waived in that case because appellant had obtained a running objection); see also Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 235-36 (Tex. 2007) (citing Ramirez and concluding complainants failed to preserve error regarding the admission of certain evidence when they objected to the first question by opposing counsel, did not object to multiple subsequent questions by opposing counsel, and did not obtain a running objection on the complained-of evidence).
See Tex. R. App. P. 33.1(a). Error preservation in the trial court is a "threshold to appellate review," In re M.S., 115 S.W.3d 534, 547 (Tex. 2003), and a court of appeals should "[o]rdinarily . . . review preservation of error on its own motion." See In re E.R.C., 496 S.W.3d 270, 276-77 (Tex. App.- Texarkana 2016, pet. denied) (stating, "Preservation of error is a systemic requirement on appeal" and "[o]rdinarily, a court of appeals should review preservation of error on its own motion.") (quoting Ford v. State, 305 S.W.3d 530, 532-33 (Tex. Crim. App. 2009)).
See In re DCP Operating Co., No. 07-18-00416-CV, 2019 WL 1908147, *4 (Tex. App.-Amarillo Apr. 29, 2019, no pet.) (mem. op.) (finding that the plaintiff did not waive his objection to collateral source evidence when he did not indicate he received any funds or payments from a collateral source as compensation for his losses).
We are unpersuaded by appellees' argument that no reversible error could occur because Villalobos "introduced evidence of the collateral source over and over again." "It is a longstanding rule that a party may not complain on appeal that the opposing side's evidence was improperly admitted if the party introduced the same or similar evidence first." Merrill v. Sprint Waste Servs. LP, 527 S.W.3d 663, 668 (Tex. App.-Dallas 2017, no pet.) (citing Harris Cnty. Flood Control Dist. v. Taub, 502 S.W.3d 320, 326 (Tex. App.-Houston [14th Dist.] 2016, pet. denied). "Once the opposing party has referred to the contested evidence, however, the party objecting to the evidence, without waiving his objection, may thereafter 'defend [him]self by explaining, rebutting, or demonstrating the untruthfulness.'" Id. (quoting Taub, 502 S.W.3d at 327). Thus, our conclusion that Villalobos failed to preserve error on his objection to the admission of evidence of his workers' compensation benefits is not based on Villalobos's own questioning about that topic after the trial court overruled Villalobos's initial objection and is instead based on Villalobos's failure to continue to object to evidence of Villalobos's workers' compensation benefits each time appellees asked about it, when he had not secured a running objection on that topic from the trial court.
As to appellants' remaining complaint regarding appellees' question about appellants' counsel's alleged entitlement to attorneys' fees under the Texas Labor Code, the related curative instruction, and denial of appellants' motion for mistrial, even if we assume the trial court erred, we cannot conclude, based on the record before us, the error regarding the question about appellants' counsel's alleged entitlement to attorneys' fees under the Texas Labor Code probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a).
We overrule appellants' second issue.
V. Conclusion
We affirm the trial court's judgment.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee ROBERT TVRS; TEXAS STAR COMMERCIAL MAINTENANCE, INC. recover their costs of this appeal from appellant ESTEBAN VILLALOBOS AND ROSALINDA ELIZONDO.