Opinion
04-20-00389-CV
03-02-2022
THE CINCINNATI INSURANCE COMPANY, Appellant v. Ronnie VILLANUEVA, Appellee
From the 293rd Judicial District Court, Maverick County, Texas Trial Court No. 18-10-36490-MCV Honorable Maribel Flores, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Irene Rios, Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Rebeca C. Martinez, Chief Justice
AFFIRMED
Cincinnati Insurance Company appeals the trial court's entry of a $1,000,000 judgment against it following a jury trial. Cincinnati raises four issues on appeal, contending (1) the trial court erred by allowing appellee Ronnie Villanueva to call Brennan Lowry, Cincinnati's corporate representative and claims adjuster, to testify at trial; (2) the trial court erred by permitting Villanueva's experts to testify and striking Cincinnati's experts; (3) the evidence is legally and factually insufficient to support Villanueva's future medical damages award; and (4) the trial court erred by failing to transfer venue to Bexar County. We affirm the trial court's judgment.
Background
This case arose from an automobile accident that occurred between Villanueva and Ronnie Lee in Bexar County. At the time of the accident, Villanueva was insured by Cincinnati under a policy that provided underinsured/uninsured motorist ("UM/UIM") coverage. The accident allegedly occurred when Villanueva came to a sudden stop because of another accident caused by a third driver, Juan Fernandez, who was driving a vehicle owned by Roberto Verduzco. When Villanueva stopped suddenly, he was rear-ended by Lee's vehicle.
In October 2018, Villanueva filed suit in Maverick County against Fernandez, Verduzco, and Cincinnati. In his petition, Villanueva claimed that Fernandez was an underinsured motorist whose negligence caused the accident, and that Villanueva was therefore entitled to recover UIM benefits under his policy with Cincinnati. In February 2020, the trial court severed and abated Villanueva's extra-contractual claims from his contractual claims for UIM benefits.
Villanueva and Cincinnati proceeded to trial, and a jury returned a verdict in Villanueva's favor, awarding him $1,400,000 in damages resulting from the accident. Specifically, the jury awarded Villanueva $1,250,000 for future medical expenses, $50,000 for physical pain and mental anguish sustained in the past, $50,000 for physical pain and mental anguish that Villanueva will sustain in the future, $25,000 for physical impairment sustained in the past, and $25,000 for physical impairment that Villanueva will sustain in the future. The jury awarded Villanueva $0 for loss of earning capacity that Villanueva will sustain in the future and $0 for loss of wages sustained in the past. The trial court signed a judgment awarding Villanueva Cincinnati's policy limit of $1,000,000 plus pre-judgment interest, post-judgment interest, and court costs. Cincinnati moved for a new trial, which the trial court denied. Cincinnati appealed.
Venue
In its final issue, Cincinnati argues the trial court abused its discretion by failing to transfer venue to Bexar County. We disagree.
A. Standard of Review
An appellate court reviews a trial court's denial of a motion to transfer venue de novo. Wilson v. Tex. Parks & Wildlife Dep't, 886 S.W.2d 259, 260-62 (Tex. 1994). We, therefore, conduct an independent review of the entire record. Tex. Civ. Prac. & Rem. Code Ann. § 15.064(b); Wilson, 886 S.W.2d at 260-62. If there is any probative evidence in the record demonstrating venue was proper in the county where judgment was rendered, we must uphold the trial court's ruling. Rosales v. H.E. Butt Grocery Co., 905 S.W.2d 745, 748 (Tex. App.-San Antonio 1995, writ denied).
B. Applicable Law
Venue may be proper in more than one county under general, mandatory, or permissive venue rules. See GeoChem Tech Corp. v. Verseckes, 962 S.W.2d 541, 544 (Tex. 1998). Generally, all lawsuits shall be brought in: (1) the county in which all or a substantial part of the events or omissions giving rise to the claim occurred; (2) in the county of the defendant's residence at the time the cause of action accrued, if the defendant is a natural person; (3) in the county of the defendant's principal office in this state, if the defendant is not a natural person; or (4) if none of the preceding three rules apply, in the county in which the plaintiff resided at the time of the accrual of the cause of action. See Tex. Civ. Prac. & Rem. Code Ann. § 15.002(a). Because venue may be proper in a variety of counties under the venue rules, a plaintiff is given the first choice of venue in the filing of a lawsuit. In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding). The defendant may challenge the venue selection, and a court must "transfer an action to another county of proper venue if . . . the county in which the action is pending is not a proper county." Tex. Civ. Prac. & Rem. Code Ann. § 15.063(1); see Tex. R. Civ. P. 87; Killeen v. Lighthouse Elec. Contractors, L.P., 248 S.W.3d 343, 347 (Tex. App.-San Antonio 2007, pet. denied). The party who seeks to transfer venue "has the burden to make proof . . . that venue is maintainable in the county to which transfer is sought." Tex.R.Civ.P. 87(2). Additionally, "[a] party who seeks to transfer venue of the action to another specified county . . . on the basis that a mandatory venue provision is applicable and controlling has the burden to make proof . . . that venue is maintainable in the county to which transfer is sought by virtue of one or more mandatory venue exceptions." Id.
Unlike subject-matter jurisdiction, which may be challenged at any time, venue may be waived if not challenged in due order and on a timely basis. Scott v. Gallagher, 209 S.W.3d 262, 264 (Tex. App.-Houston [1st Dist.] 2006, no pet.). This is true, even if venue was mandatory in another county. See Scott v. Wichita Cty., 248 S.W.3d 324, 326 (Tex. App.-Houston [1st Dist.] 2007, no pet.). An objection to improper venue is waived if it is not made by written motion filed prior to or concurrently with any other plea, pleading or motion except for a special appearance. Tex.R.Civ.P. 86(1). Thus, while venue may be improper, the defendant can submit to the location by failing to raise the matter with the trial court. Jackson v. Biotectronics, Inc., 937 S.W.2d 38, 43 (Tex. App.-Houston [14th Dist.] 1996, no writ).
A motion to transfer venue, "and any amendments to it, shall state that the action should be transferred to another specified county of proper venue because: (a) [t]he county where the action is pending is not a proper county; or (b) [m]andatory venue of the action in another county is prescribed by one or more specific statutory provisions which shall be clearly designated or indicated." Tex.R.Civ.P. 86(3). "The motion shall state the legal and factual basis for the transfer of the action and request transfer of the action to a specific county of mandatory or proper venue." Id.
"The court shall determine the motion to transfer venue on the basis of the pleadings, any stipulations made by and between the parties and such affidavits and attachments as may be filed by the parties" in accordance with the applicable rules. Id. R. 87(3)(b). The trial court must base its venue determination on the last pleading that was timely filed. See Nabors Loffland Drilling Co. v. Martinez, 894 S.W.2d 70, 73 (Tex. App.-San Antonio 1995, writ denied) (holding that plaintiffs were within their rights to amend petition prior to venue hearing); see also Tex. R. Civ. P. 87(1). An original timely motion to transfer venue may be amended to cure defects in the original motion if the amended motion is filed before the trial court rules on the original motion, and the properly filed amended motion relates back to and supersedes the original motion to transfer venue. See In re Pepsico, Inc., 87 S.W.3d 787, 794 (Tex. App.-Texarkana 2002, orig. proceeding).
Rule 87 also prohibits a second motion to transfer venue in one case unless certain specified exceptions apply. Tex.R.Civ.P. 87(5); see In re Hardwick, 426 S.W.3d 151, 157 (Tex. App.-Houston [1st Dist.] 2012, orig. proceeding) ("If the trial court initially denies a motion to transfer venue, a subsequent motion to transfer venue resulting in a different venue determination violates Rule 87(5), and the second determination is void."). The rule states:
If venue has been sustained as against a motion to transfer, or if an action has been transferred to a proper county in response to a motion to transfer, then no further motions to transfer shall be considered regardless of whether the movant was a party to the prior proceedings or was added as a party subsequent to the venue proceedings, unless the motion to transfer is based on the grounds that an impartial trial cannot be had under Rules 257-259 or on the ground of mandatory venue, provided that such claim was not available to the other movant or movants.Tex. R. Civ. P. 87.
Section 15.032 of the Texas Civil Practice and Remedies Code, which pertains to insurance, states that a suit against an insurance company may be brought in the county in which the company's principal office is located, the county in which the loss occurred, or the county in which the policyholder resided at the time the cause of action accrued. Tex. Civ. Prac. & Rem. Code Ann. § 15.032. The Texas Civil Practice and Remedies Code expressly identifies Section 15.032 as a permissive venue statute. See id.; see also Chiriboga v. State Farm Mut. Auto. Ins. Co., 96 S.W.3d 673, 682 n.5 (Tex. App.-Austin 2003, no pet.). Under the Texas Insurance Code, "[n]otwithstanding Section 15.032," an action against an insurer in relation to uninsured motorist coverage "may be brought only" in the county in which the accident occurred or the policy holder resided at the time of the accident involving the uninsured motor vehicle. Tex. Ins. Code Ann. § 1952.110 (emphasis added). Unlike Section 15.032, Section 1952.110 is a mandatory venue provision. In re Metro. Prop. & Cas. Ins. Co., No. 12-18-00100-CV, 2018 WL 2440461, at *3 (Tex. App.-Tyler May 31, 2018, orig. proceeding) (mem. op.).
C. Analysis
The record shows that Villanueva filed his petition on October 9, 2018 in Maverick County and stated venue was proper in Maverick County because it is the county of residence of then-defendant, Fernandez. See Tex. Civ. Prac. & Rem. Code Ann. § 15.002(a) (lawsuit may be brought in the county of defendant's residence at the time the cause of action accrued). On December 20, 2018, Cincinnati filed an answer subject to its motion to transfer venue, arguing the court should transfer venue to Bexar County where the incident occurred, where the defendant resided, and where any witnesses will likely reside "for the convenience of the parties and witnesses and in the interest of justice."
On March 6, 2019, the trial court heard this motion to transfer venue. At the hearing, Cincinnati clarified "[t]he case has been pled under just the general venue rules" and "there is no mandatory rule requiring it to be in Maverick County." Villanueva responded, "[w]ithout any mandatory venue statutes that are in our-that are dictating to the court where it needs to be, I'd ask that the Court allow the plaintiff to choose venue as the legislature has allowed us to do." The trial court denied Cincinnati's motion to transfer venue at the hearing.
In May 2019, Cincinnati filed an amended answer subject to its motion to transfer venue, again asserting the general venue rules. In October 2019, Cincinnati filed an amended motion to transfer venue to Bexar County, and for the first time asserted the mandatory venue statute under Section 1952.110. See Tex. Ins. Code Ann. § 1952.110. Villanueva responded that the trial court had already denied Cincinnati's original motion to transfer venue and could not consider a subsequent motion to transfer venue. On November 12, 2019, the trial court denied Cincinnati's amended motion to transfer venue, and its subsequent motion for reconsideration.
We hold the trial court did not abuse its discretion in denying Cincinnati's motions to transfer venue. Villanueva brought forth sufficient facts to support venue in Maverick County at the time the lawsuit was filed because Fernandez, one of the defendants at the time the suit was filed, resided in Maverick County. See Tex. Civ. Prac. & Rem. Code Ann. § 15.002(a). Cincinnati only asserted, at first, a more convenient forum outside Maverick County, not that Maverick County was an improper venue or that a mandatory venue provision otherwise applied. The trial court held a hearing, and denied Cincinnati's motion. Only later did Cincinnati assert in a further motion, disallowed by Rule 87(5), an additional ground for a transfer of venue. See Tex. R. Civ. P. 87(5). On this record, we hold the trial court did not abuse its discretion in denying Cincinnati's motions to transfer venue and motion for reconsideration, having waived the mandatory venue provision under the Texas Insurance Code. See id. R. 87. We overrule Cincinnati's final issue.
Villanueva's Experts' Testimony
Cincinnati complains that the trial court erred in allowing specific testimony from several of Villanueva's experts, Dr. Raheel Bengali, Dr. Carlos Jaramillo, and Dr. John Swiger.
A. Dr. Jaramillo
Cincinnati argues the trial court erred in allowing Dr. Jaramillo's opinions and testimony at trial because his opinions materially deviated from his previously disclosed opinions. Villanueva responds that his testimony merely expanded on his disclosed opinions.
When a party fails to supplement a discovery response in a timely manner, the evidence may be excluded. Tex.R.Civ.P. 193.6(a); see Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex. 1992). The remedy is mandatory and automatic unless the court finds there was good cause for the failure to amend or supplement, or the failure will not unfairly surprise or prejudice the other party. Tex.R.Civ.P. 193.6(a); Morrow v. H.E.B., Inc., 714 S.W.2d 297, 297-98 (Tex. 1986). The trial court has discretion to determine whether the offering party has met its burden of showing good cause or lack of unfair surprise, and the record must support its findings. Aluminum Co. of Am. v. Bullock, 870 S.W.2d 2, 3 (Tex. 1994); Tex.R.Civ.P. 193.6(b).
In some instances, the change in an expert's opinion does not require supplementation. See Norfolk Southern Ry. Co. v. Bailey, 92 S.W.3d 577, 581 (Tex. App.-Austin 2002, no pet.). For example, an expert may refine calculations or perfect a report through the time of trial. Exxon Corp. v. W. Tex. Gathering Co., 868 S.W.2d 299, 304 (Tex. 1993); Foust v. Estate of Walters ex rel. Walters, 21 S.W.3d 495, 504 (Tex. App.-San Antonio 2000, pet. denied). An expert may also change an opinion without supplementation if the opinion is an "expansion on an already disclosed subject." Navistar Int'l Transp. Corp. v. Crim. Truck & Tractor Co., 883 S.W.2d 687, 691 (Tex. App.-Texarkana 1994, writ denied). An appellate court must uphold the trial court's evidentiary ruling if there is any legitimate basis in the record for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). Whether abused discretion warrants reversal depends upon whether it "probably caused the rendition of an improper judgment" or "probably prevented the appellant from properly presenting the case to the court of appeals." Tex.R.App.P. 44.1(a).
In August 2019, in his first supplemental disclosures, Villanueva designated Dr. Jaramillo as his medical cost analyst and provided that he was "expected to testify regarding the services provided to [Villanueva], the reasonableness and necessity of the charges incurred, [Villanueva]'s medical conditions, prognosis, diagnosis and the injuries [Villanueva] sustained due to the incident which has been made the basis of this lawsuit." Villanueva attached a report for Dr. Jaramillo which contained summaries of Villanueva's projected future medical requirements and costs.
On appeal, Cincinnati complains that Dr. Jaramillo's trial testimony relating to Villanueva's future medical care was a material deviation from his timely disclosed opinions, offering a higher amount for Villanueva's life care plan and using different information and methodology than what was previously used in his disclosed report. Villanueva's disclosure stated that Dr. Jaramillo would testify regarding Villanueva's "medical conditions, prognosis, diagnosis and the injuries [Villanueva] sustained due to the incident which has been made the basis of this lawsuit." The subject of Dr. Dr. Jaramillo's objected-to testimony at trial relates to Villanueva's recommended future pain management and associated future medical costs, which would include Dr. Jaramillo's testimony regarding Villanueva's life plan. This is all part of Villanueva's "medical conditions, prognosis, diagnosis and the injuries [he] sustained." See JLG Trucking, LLC v. Garza, 461 S.W.3d 554, 559 (Tex. App.-San Antonio 2013), rev'd on other grounds, 466 S.W.3d 157 (Tex. 2015) (stating plaintiff's "need for future surgery is part of her prognosis."); see also Koko Motel, Inc. v. Mayo, 91 S.W.3d 41, 51 (Tex. App.-Amarillo 2002, pet. denied) (expert "simply appl[ied] different data appearing of record into old methodology or formulas to voice an alternate opinion" and therefore expert did not materially change "his previous opinions but rather expand[ed] on a subject already broached via discovery and the presentation of evidence through other witnesses."). Even assuming error, Dr. Jaramillo did not make "the kinds of fundamental alterations that would constitute a surprise attack on the opposing side." Lubbock County v. Strube, 953 S.W.2d 847, 856 (Tex. App.-Austin 1997, pet. denied).
Therefore, the trial court did not abuse its discretion in allowing Dr. Jaramillo's trial testimony and opinions relating to Villanueva's future medical expenses.
Cincinnati also contends that "Dr. Jaramillo's subsequent testimony regarding the reasonableness and necessity of past medical expenses was likewise not previously disclosed and constituted a material variance from the opinion Villanueva disclosed to Cincinnati." However, Cincinnati fails to provide any analysis as to this contention. Therefore, we do not consider this argument. See Tex. R. App. P. 38.1(i); see also ERI Consulting Eng'rs, Inc. v. Swinnea, 318 S.W.3d 867, 880 (Tex. 2010).
B. Dr. Swiger
Cincinnati similarly argues the trial court erred in allowing Dr. Swiger's testimony at trial about Villanueva's future medical expenses because (1) it was a material deviation from his prior opinions, and (2) he did not reduce the future medical expenses to present value.
Villanueva initially disclosed Dr. Swiger as his economic analysis expert who was "expected to testify regarding loss of earnings valuation, cost of future medical care adjusted present loss of human day value, loss of household services and economic capital." Dr. Swiger's report provided estimates of the present value of lost future earnings/earnings capacity and the life care plan for Villanueva, along with the methodology used. In his report, Dr. Swiger concludes "the present value of estimated future costs under this Life Care Plan amounts to $628,140[.]" The report provides that "[t]hese future costs were . . . discounted at a 3.0% discount rate, discussed in the section under present value." At trial, Dr. Swiger estimated Villanueva's future medical costs to be $2,442,661 based on his own analysis along with the testimony of Villanueva's other experts at trial. He further testified that (1) the discount to present day dollars for Villanueva's estimate of $2,500,000 in future medical costs would depend on when the cost was incurred; (2) if the surgery would be "next year, you wouldn't discount at all[;]" and (3) if it was an "incremental cost over [Villanueva's] lifetime, then you would have to discount it."
Cincinnati complains that Dr. Swiger's testimony at trial employed a different calculation to reduce the future medical expenses to present value. For the same reasons, we hold the testimony was not a material deviation from his previously disclosed opinions, but an "expansion on an already disclosed subject" which did not require supplementation. See Navistar, 883 S.W.2d at 691; see also Foust, 21 S.W.3d at 504. Therefore, the trial court did not abuse its discretion in allowing Dr. Swiger's trial testimony.
Cincinnati also complains of Dr. Bengali's testimony at trial relating to Villanueva's future medical treatment and related costs. We assume without deciding that the trial court erred in allowing Dr. Bengali's testimony at trial, but hold that such error was harmless because the jury heard the same evidence from other witnesses and as discussed below, the evidence from these other witnesses was sufficient to support the jury's award for future medical expenses. See Pitman v. Lightfoot, 937 S.W.2d 496, 518 (Tex. App.-San Antonio 1996, writ denied) ("The exclusion of evidence is harmless if it is cumulative of other evidence that was admitted on the same issue." (citing Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989)); see also Tex. R. App. P. 44.1(a) ("No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of . . . probably caused the rendition of an improper judgment.").
Sufficiency of the Evidence
Cincinnati challenges the legal and factual sufficiency of the evidence to support the jury's award for future medical expenses.
Cincinnati's argument that Villanueva offered no evidence for past medical expenses is inadequately briefed and thus waived. See Tex. R. App. P. 38.1(i)..
A. Legal Sufficiency
We review a legal sufficiency or "no evidence" challenge under the well-established principles set forth in City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005). Reviewing the evidence in the light most favorable to the finding and indulging every inference that would support it, we sustain a no-evidence challenge only if: (1) the record reveals a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. Id. at 810, 822. The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Id. at 819. In considering the legal sufficiency of the evidence to support an award of future medical expenses, we must examine the entire record for any probative evidence and disregard all evidence to the contrary. City of San Antonio v. Vela, 762 S.W.2d 314, 320 (Tex. App.-San Antonio 1988, writ denied).
Texas follows the "reasonable probability" rule for damages for future medical expenses. Aguirre v. Soto, No. 04-16-00028-CV, 2016 WL 5922777, at *6 (Tex. App.-San Antonio Oct. 12, 2016, no pet.) (mem. op.). "To recover future medical expenses, a plaintiff must show there is a 'reasonable probability' that such expenses will be incurred in the future." Saeco Elec. & Util., Ltd. v. Gonzales, 392 S.W.3d 803, 808 (Tex. App.-San Antonio 2012, pet. granted, judgm't vacated w.r.m.). Although the preferred practice to establish future medical expenses is through expert medical testimony, no rule exists requiring that the plaintiff establish such expenses through expert testimony. Columbia Med. Ctr. of Las Colinas v. Bush ex rel. Bush, 122 S.W.3d 835, 863 (Tex. App.-Fort Worth 2003, pet. denied). A jury may choose to be guided by expert testimony as to future medical damages but is not bound by it. Novosad v. Mid-Century Ins. Co., 881 S.W.2d 546, 550 (Tex. App.-San Antonio 1994, no writ), abrogated on other grounds by Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809 (Tex. 2006).
A jury may assess damages for future medical expenses "based on the nature of the plaintiff's injuries, medical care rendered to a plaintiff before trial, and the condition of the plaintiff at the time of trial." Aguirre, 2016 WL 5922777, at *6. "Furthermore, a jury's award of future medical expenses lies mostly within the jury's discretion." Saeco, 392 S.W.3d at 808. "No precise evidence is required." Vela, 762 S.W.2d at 321. "Because issues such as life expectancy, medical advances, and the future costs of products and services are, by their very nature, uncertain, appellate courts are particularly reluctant to disturb a jury's award of these damages." Aguirre, 2016 WL 5922777, at *6. "[T]he jury has discretion to award damages within the range of evidence presented at trial." Gulf States Utils., Co. v. Low, 79 S.W.3d 561, 566 (Tex. 2002). "The jury's findings may not be set aside merely because its reasoning in arriving at the amount of damages is unclear." Vela v. Wagner & Brown, Ltd., 203 S.W.3d 37, 49 (Tex. App.-San Antonio 2006, no pet.); Potter v. GMP, L.L.C., 141 S.W.3d 698, 703 (Tex. App.-San Antonio 2004, pet. dism'd). When the trial evidence supports a range of damages, an award within that range is an appropriate exercise of the jury's discretion, and a reviewing court is not permitted to speculate on how the jury actually arrived at its award. See Potter, 141 S.W.3d at 704; see also Vela, 203 S.W.3d at 49.
In this case, the jury awarded Villanueva $1,250,000 for "[r]easonable expenses of necessary medical care that, in reasonable probability, . . . Villanueva will incur in the future." Cincinnati filed a "Motion for Judgment Notwithstanding the Verdict, or in the Alternative Motion to Disregard Jury Findings," arguing the evidence did not support the jury's findings and even if it did, the damages award should be limited to the $1,000,000 policy limits. The trial court entered a final judgment ordering that Villanueva recover $1,000,000 from Cincinnati "based upon the contracted for applicable policy limit of the applicable underinsured motorist contract."
Because we hold there was no error admitting the testimony of Villanueva's expert witnesses, Cincinnati's contention that there was no competent evidence to support a finding of future medical expenses is without merit. The jury heard properly admitted testimony from several experts regarding Villanueva's future medical needs. Dr. Swiger estimated Villanueva's future medical costs to be $628,410 and Dr. Swiger testified that after considering the testimony of the other experts, he estimated Villanueva's future medical expenses to be $2,442,661.
Dr. Michael Leonard, a neurosurgeon and Villanueva's physician, testified that Villanueva would likely incur between $440,000 and $460,000 in surgical costs for his cervical spine. He also testified that Villanueva would need future surgery on his lower back, at a cost between $100,000 and $200,000. This testimony is unchallenged on appeal and constitutes some evidence to support the future medical damages award. Based on the foregoing testimony, the jury could have determined a reasonable medical probability exists that Villanueva will incur medical expenses in the future based on his injuries, which could include additional surgeries, amounting to $1,250,000.
Cincinnati also argues the evidence was legally insufficient to support the damages awarded for future medical expenses because there was no evidence presented to the jury to reduce future medical expenses to present value. Texas law does not require specific evidence of the discount rate, and parties are not always "required to introduce . . . evidence [of present value] because the jury [is] qualified to make the calculation based on its common knowledge of interest rates." Gen. Motors Corp. v. Burry, 203 S.W.3d 514, 553 (Tex. App.-Fort Worth 2006, pet. denied); Rangel v. Robinson, No. 01-05-00318-CV, 2007 WL 625042, at *2 (Tex. App.-Houston [1st Dist.] Mar. 1, 2007, pet. denied) (mem op.). The trier of fact is qualified to make a discount calculation. See Rangel, 2007 WL 625042, at *2.
Here, the trial court instructed the jury to calculate all of the damage awards as a sum "if paid now in cash." For the question on future medical expenses, the jury answered $1,250,000. As evidenced above, the jury had expert witness evidence which it could use to calculate the present value. First, Dr. Jaramillo's report contained a projected life care plan with the cost of $620,936.88, in which he "quantified[d] the value of future medical requirements" in "nominal value, or 'today's dollars.'" See Morrell v. Finke, 184 S.W.3d 257, 289 (Tex. App.-Fort Worth 2005, pet. denied) (holding expert's testimony, "provided in terms of 'today's dollars,' does constitute a reduction to present value.'"). Second, Dr. Swiger's report, titled "Present Value of Lost Future Earnings/Earnings Capacity and Life Care Plan of Mr. Ronnie Villanueva" uses Dr. Jaramillo's figure and provides "the present value of estimated future costs under this Life Care Plan amounts to $628,140[.]" The report provides that "[t]hese future costs were . . . discounted at a 3.0% discount rate, discussed in the section under present value." Two tables attached to this report contain a breakdown of the estimate with a discounted column for present value of lifetime costs.
At trial, Dr. Swiger estimated Villanueva's future medical costs to be $2,442,661 based on his own analysis along with the testimony of Villanueva's other experts at trial. He testified that the discount to present day dollars for Villanueva's estimate of $2,500,000 in future medical costs would depend on when the cost was incurred. He stated if the surgery would be "next year, you wouldn't discount at all," and if it was an "incremental cost over [Villanueva's] lifetime, then you would have to discount it." Dr. Swiger testified that in the life-care plan, he used 3.0% to discount it to the present-day dollar, which was also identified in his report. He also testified that in his experience, "in life-care plans, . . . the doctor usually gives the cost in today's dollar."
We must presume the jury used this evidence it had before it and followed the trial court's instructions to calculate "[w]hat sum of money, if paid now in cash" Villanueva was entitled to for future damages. See Rangel, 2007 WL 625042, at *2 (presuming jury followed trial court's instructions in calculating damages "if paid now in cash" and stating jury was qualified to make calculation of future medical care in present value, even though appellees' medical expense expert testified he had not attempted to discount his estimate of $6 million to present value). We conclude there is more than a scintilla of evidence to support the jury's award of $1,250,000 in damages for future medical expenses. See City of Keller, 168 S.W.3d at 824.
B. Factual Sufficiency
Cincinnati contends that the evidence was factually insufficient to support the future medical expenses because Villanueva failed to offer any additional evidence relating to future medical expenses other than the evidence proffered by his experts.
Cincinnati generally asserts that damages were "manifestly excessive" and that "the jury award of future medical expenses was manifestly unjust and likely the result of the erroneously admitted testimony and evidence." We construe this as a factual sufficiency challenge to the jury's future medical expenses award because "[t]he standard of review for an excessive damages complaint is factual sufficiency of the evidence." Burry, 203 S.W.3d at 549 (citing Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1998)).
In reviewing a factual sufficiency point, we will not substitute our opinion for that of the trier of fact. Hollander v. Capon, 853 S.W.2d 723, 726 (Tex. App.-Houston [1st Dist.] 1993, writ denied). We weigh all of the evidence in support of the jury's finding and will set aside the verdict only if the evidence is so weak or the finding so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).
As discussed above, we hold that the testimony of Villanueva's experts was properly admitted. Dr. Leonard, who is not challenged on appeal, testified as to cervical spine surgeries Villanueva would need which would cost between $440,000 and $460,000 and surgery on his back which would cost between $100,000 and $200,000. Dr. Jaramillo also testified about a future life plan for Villanueva and estimated the cost to be $382,601 "without the interventional and surgical cost." Finally, at trial, Dr. Swiger estimated Villanueva's future medical costs to be $628,410.
From this evidence, we cannot say the jury's award for damages for future medical expenses is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Tagle v. Galvan, 155 S.W.3d 510, 520-21 (Tex. App.-San Antonio 2004, no pet.) (expert's testimony regarding the need for surgical procedures and reasonable and necessary costs was legally and factually sufficient to support the damage award, including future medical damages). Accordingly, the evidence is legally and factually sufficient to support the jury's future medical damages award. We overrule Cincinnati's third issue.
Cincinnati's Experts
Cincinnati argues the trial court abused its discretion in striking its experts, Dr. Brian Sullivan, Marc Chapman, Dr. Dwight Steward, and Donna Johnson, as untimely designated.
We review a trial court's exclusion of an expert witness for abuse of discretion. See Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718-19 (Tex. 1998). To establish reversible error based on the erroneous exclusion of evidence, the complaining party must prove three things: (1) the trial court erroneously excluded the evidence; (2) the excluded evidence was controlling on a material issue and not cumulative of other evidence; and (3) the error probably caused the rendition of an improper judgment. Coterill-Jenkins v. Tex. Med. Ass'n Health Care Liab. Claim Trust, 383 S.W.3d 581, 593 (Tex. App.-Houston [14th Dist.] 2012, pet. denied); see Tex. R. App. P. 44.1; Tex. Dep't of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000). "[A] successful challenge to evidentiary rulings usually requires the complaining party to show that the judgment turns on the particular evidence excluded or admitted." Able, 35 S.W.3d at 617. In determining if the exclusion was harmful, we review the entire record. See id.
Error is not preserved with regard to the exclusion of evidence unless the substance of the evidence is made known to the court by offer or was apparent from the context within the questions that were asked. Tex. R. Evid. 103(a)(2). The failure to make an offer of proof containing a summary of the excluded witness' intended testimony waives any complaint about the exclusion of the evidence on appeal. See Akin v. Santa Clara Land Co., Ltd., 34 S.W.3d 334, 339 (Tex. App.-San Antonio 2000, pet. denied).
In September 2019, Cincinnati designated Dr. Sullivan, Chapman, Dr. Steward, and Johnson as experts under Texas Rule of Civil Procedure 192.3(e). Cincinnati moved to compel a Rule 204.1 examination of Villanueva, which the trial court granted. Villanueva then filed a motion for rehearing of this ruling and a motion to strike Cincinnati's experts. Villanueva argued Cincinnati failed to give a sufficient description of their experts' mental impressions. The trial court granted Villanueva's motion to strike Cincinnati's experts and, in its order, stated that Cincinnati's "testifying experts are excluded from testifying because of improper or failure to properly designate them." Cincinnati then filed a motion for rehearing of Villanueva's motion to strike its experts, which the trial court denied.
Assuming, without deciding, that the trial court erred in striking Cincinnati's experts, we conclude Cincinnati has failed to show harm. See Tex. R. App. P. 44.1(a). Cincinnati argues that the trial court's error in striking its experts "more than likely resulted in the rendition of an improper verdict because Cincinnati was not allowed to put on any testimony to counter the damages model presented by Villanueva." However, the offer of proof Cincinnati provided for its excluded experts does not demonstrate that the exclusion of such evidence probably caused the rendition of an improper judgment. See Coterill-Jenkins, 383 S.W.3d at 593.
At the offer of proof, Dr. Steward testified that he disagreed with Dr. Swiger's calculations about Villanueva's loss of earning capacity. Because the jury awarded $0 for loss of earning capacity in the future, Dr. Steward's testimony would not have influenced the judgment. Dr. Sullivan testified that Villanueva had several "underlying musculoskeletal conditions" prior to the accident. She also testified that "as a result of this motor vehicle accident, [Villanueva] sustained a strain of the cervical and lumbar spine." Even if permitted to testify, Cincinnati does not show how this evidence is "controlling on a material issue dispositive to the case." See Able, 35 S.W.3d at 617; Gunn v. McCoy, 554 S.W.3d 645, 668-71 (Tex. 2018). Next, the jury awarded $0 to
Villanueva for loss of earning capacity and $0 for loss of wages sustained in the past, so Johnson's report concluding no loss of future wage-earning capacity would not have had an effect on the judgment. Finally, Cincinnati made no offer of proof as to Chapman and has waived any complaint about the exclusion of his evidence. See Akin, 34 S.W.3d at 339.
Based on our review of all the evidence, admitted and excluded, we conclude that Cincinnati has failed to make the requisite showing of harm by the trial court's ruling.
We overrule the remainder of Cincinnati's second issue.
Lowry's Testimony
In its first issue, Cincinnati argues that the trial court erred by allowing Villanueva to call Lowry, Cincinnati's corporate representative and claims adjuster, to testify at trial, and by denying Cincinnati's objections to specific statements made by Lowry at trial.
A. Standard of Review and Applicable Law
A trial court's decision on whether to quash a trial subpoena is reviewed for an abuse of discretion. See Grunauer v. Difilippo, No. 07-03-0149-CV, 2004 WL 111462, at *1 (Tex. App.- Amarillo Jan. 22, 2004, no pet.) (mem. op.). We also review the improper admission of evidence under an abuse of discretion standard. Liberty Mut. Ins. Co. v. Sims, No. 12-14-00123-CV, 2015 WL 7770166, at *7 (Tex. App.-Tyler Dec. 3, 2015, pet. denied) (mem. op.). The test for determining an abuse of discretion is whether the trial court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A trial court has no discretion in determining what the law is or in applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). The appellate court should uphold the trial court's ruling if the record shows any legitimate basis supporting that ruling. Enbridge Pipelines (E. Tex.) L.P. v. Avinger Timber, LLC, 386 S.W.3d 256, 264 (Tex. 2012). Error is reversible only if it probably caused the rendition of an improper judgment or prevented the appellant from properly presenting his case to the appellate court. See Tex. R. App. P. 44.1(a); Romero v. KPH Consol., Inc., 166 S.W.3d 212, 225 (Tex. 2005).
The mention of UIM coverage limits before a jury is not always reversible error. Univ. of Tex. at Austin v. Hinton, 822 S.W.2d 197, 201 (Tex. App.-Austin 1991, no writ). To demonstrate reversible error, the party appealing must show (1) that the reference to insurance probably caused the rendition of an improper judgment in the case; and (2) that the probability that the mention of insurance caused harm exceeds the probability that the verdict was grounded on proper proceedings and evidence. Id. The record must show harm to the complaining party. See Canyon Vista Prop. Owners Ass'n, Inc. v. Laubach, No. 03-11-00404-CV, 2014 WL 411646, at *8 (Tex. App.-Austin Jan. 31, 2014, no pet.) (mem. op.). "A reviewing court must 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.'" Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 871 (Tex. 2008) (citing Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 841 (Tex. 1979)).
B. Analysis
Here, Villanueva called Cincinnati's claims adjuster to testify as Cincinnati's corporate representative on various matters. Cincinnati's pre-trial efforts to quash or exclude Lowry's testimony were unsuccessful. At trial, Villanueva called Lowry as a witness and asked questions relating to Cincinnati's coverage, settlement negotiations with Lee, the policy limits of Lee's insurance, and how Cincinnati handled the claim. Villanueva's counsel asked Lowry the following question about the release on file related to Lee and his insurance policy:
Q. Would it surprise you to know, based upon what we reviewed, that the reason we didn't sue Mr. Lee is because his insurance company did the right thing and paid this claim to the limits of their insurance?
Cincinnati objected to the question and the trial court overruled the objection, stating that it would allow the question. Villanueva then proceeded to inquire about the release on file as follows:
Q. And in this case your review of the file and your investigation reflect that a release was signed for the limits of the Progressive policy that was applicable to this accident, correct?
A. Correct. I believe they had a $30,007 limit that they paid.
Q. Okay. And the whole point of a release is once it's signed, the case is over as to that person that's released, correct?
Cincinnati's objections to Lowry's testimony were overruled and its motion for mistrial was denied. Assuming without deciding whether there was error, we hold that such error was harmless. See Tex. R. App. P. 44.1(a); Romero, 166 S.W.3d at 225. Cincinnati argues that evidence of Lee's $30,0007 policy limit already being paid out along with testimony suggesting that Cincinnati breached its contractual obligations affected the jury's $1,400,000 verdict by "inciting anger at Cincinnati among the jurors." However, we cannot say that the record bears out this contention.
Over the course of a four-day trial, Lowry was one of eight witnesses who testified and the complained-of testimony regarding Lee's policy limits comprised just several minutes. Villanueva's counsel did not highlight the testimony at closing argument, but instead argued for an award based, in large part, on the testimony of Villanueva's experts. See Sevcik, 267 S.W.3d at 873 ("In harmless-error review, we have also looked to efforts by counsel to emphasize the erroneous evidence."). As described above, the evidence is legally and factually sufficient to support the jury's award, including the bulk of its award for $1,250,000 in future medical expenses, supported by Villanueva's experts' testimony. For the reasons discussed above, the award is not excessive. See Hinton, 822 S.W.2d at 201 (holding appellants failed to show harm when trial court allowed appellee's counsel to state the effect of insurance subrogation rights because the damages awarded in the case were not excessive considering the evidence presented, the trial court instructed the jury to disregard the existence of insurance, and appellee's counsel discussed insurance to correct an erroneous impression that appellee sought double recovery). Ultimately, Cincinnati has not shown "that the probability that the mention of insurance caused harm exceeds the probability that the verdict was grounded on proper proceedings and evidence." Id.; cf. Aultman v. Dallas Ry. & Terminal Co., 260 S.W.2d 596, 600 (Tex. 1953) (discussing the meaning of "probably" and recognizing that error can be harmless when it has no bearing on the issue of liability, could have influenced only the amount of damages, and the record contains ample support for the damages award).
Cincinnati's first issue is overruled.
Conclusion
We affirm the judgment of the trial court.