## In th e Cour t of Appeals Second Appe llate District of Texas at Fort Worth

___________________________ No. 02

- 21

- 00441

- CV

___________________________

On Appeal from the 348th District Court Tarrant County, Texas Trial Court No

. 348

- 295536

- 17 

### R

ANDALL 

### M C 

### D ANIEL 

### , Appellant

V


### . F ARLAND 

### M ONROE 

### D INDY AND 

### C ORE 

### -M ARK 

### M IDCONTINENT 

### , I NC


### . , Appellees2 B efore Kerr and Bir dwell, JJ. 1

Opinion by Justice Birdwell

1 Justice W allach o riginally was a member of the panel. After oral argument it was determined that although he made no rulings in the trial court relevant to this appeal, he had previously been the pre s iding judge of the district court from which the appeal arises wh ile the case was p ending in the that court. Once this information came to his atten tion, he recused himself , and the case was decided by the remaining two justices of the panel. See Tex. R. A pp. P. 41.1(b).3 O PINION
T his is a per sonal injury case. Randall McDaniel was injured when a three

thousand

- pound dolly dislodged from a tractor

- trailer rig being dri ven b y Farland
Monroe Dindy and cra s hed into McDani el ’ s vehicl e . McDanie l sued Dindy and his employer, Core

- Mar k Midcontinent, Inc. ( Core

- Mark ) , sometimes referr ed to jointly

as Cross

- A ppellants

. The jury found : ( 1) Dindy and Core

- Mark n egligent in causing
the occurrenc e , ( 2) $ 3 50, 000 in compensa tor y damages for McD a niel , including $95,000 in future medical expenses , ( 3) Dindy gro ss ly negligent and assessed $7,5 00 in punitive damages against him , and ( 4) Core

- Mark grossly negligent a n d a ssessed $400,000 in puniti ve dama ges against it

. The trial court rendered final ju dgment jointl y and severally against Dindy and Core

- Mark for $350,000 in compensatory damages
and awarded $7,500 in punitive da mages against Dindy , plus pre ju dgme nt i nterest , post j udgment inter est , a nd taxable court costs. The trial court granted, in part, Cross

Appellants ’ motion for ju dgment notwithstanding the v erdict (JNOV) , den ying recovery to McDaniel for punitive damages agains t Core

- Mark. The t rial court den ied
th ose portions of C r o ss
- Appellants ’ JNOV that sought to deny McDaniel his recovery
of com pensatory damages in toto , f uture medical ex penses of $95,000 in particular , and recovery of punitive damages agains t Dindy.
McDan i el appeals the gr an ting of the JNOV , which d eprive d him of his recovery of punitive damages against Core

- Mark. We will affirm the part of the trial

court ’ s judgment denying recovery of punitive damages against Core

- Mark

.4 Dindy and Core

- Mark cross

- appeal th e partial d en ial of the ir JNOV , raising
thr ee issues : ( 1) legally insufficient evidence to support the negligence verdict aga inst
them because there was no probative expert testimony regarding the standard of care applicable to them , ( 2) l e gally insufficien t ev idenc e to su pport a gross negligence verdict against Dindy because there was no evidence to show that Dindy had actual o r subjective awareness of the risk involved but nevertheless proceeded in conscious
indifference to the rights, saf ety, or welfare of o thers , and ( 3 ) legally insufficient

e vidence to support an award of future medical damages to McDaniel

. Although w e will overrule Cross

- A pp el lants ’ first two issues , w e will sustain C ross

- A ppellants ’ third
issu e and modify the ju dgment to delete the award of future med i cal ex penses . As
modifi ed, the j udg ment will be affirmed.
I. Factual Background
T his lawsuit ar ose out of an O ctober 9, 20 15 motor

- vehicle collision tha t occurred while Dindy, who was in the course and scope of employment fo r Core

Mark, was driving a t ru ck a nd towi ng a trailer wit h a conve rte r dolly. While Dindy was driving on Interstate 35, the converter doll y di slodged from the trailer , struck a tow truck, and then struck the vehicle being driven by McD aniel , causing injuries to
McDani el

. McDaniel filed su it again st D i ndy and Core

- Mark claiming that both were negligent in causing the collision an d resulting inju r i es and that both were grossly negligent and should be assessed punitive damages.5 The eviden ce at t rial wi ll be de scribed in more detai l below a s necessary to address the points raised on appeal

. By way of overview, Core

- Mark ’ s national transportation mana ger testified that he conducted a post

- accident investig ation wh i ch
led him and Core

- Ma rk to concl ude t hat D indy had failed to properly secu re the dolly
before le aving on hi s trip

— which Dindy denied

— leading to the dolly ’ s dislodging
from the trailer and c o lli ding w ith McDaniel ’ s vehi c le

. Dindy testified that he did not know why the dolly disl odged. Dindy was required by company policy and federal regulations to do a pre

- tri p inspection before leaving on the trip in question , which inspection required check i ng , among other things, whether the dolly was secure . The evidence is disputed as to whether Dindy performed the inspection. The Core

- Mark transpor tation director also testified that Dindy was terminated for his failure to follow methods for securing the d o lly , as docum ented in Core

- Mark ’ s records

. However , Dindy testified that he was terminated for hav ing an accident within the
first nine t y days of his employment with Core

- Mark

. Th e re was evidence that Cor e
- Mark utilized a n electronic driver loggin g syste m

ca lled PeopleNet and that Din dy sho uld have us ed this system to docume nt the require d pre

- trip inspectio n of his equipment before leaving on this trip ; that the inspecti on , if done, sh ould have caused D indy to real ize he had not secured the dolly ; and th a t no pre

- trip inspection was recorded by Dindy i n t he PeopleNet system
before th is accident

. Further, the P e opleNet records reflected that Dindy had failed to6 document a p re

- trip in spection the day before the accident, as well as other potential irregular i tie s for the preceding two we eks.
Who w a s to review the electronic reports , and when , is ambiguous in the
record. M att hew Beard , the Core

- Mark corporat e representative , testified that at the
end of each day the “ supervi sor ” or “ somebody ” was supposed to r e view the
electron ic repo rts “ as soon as he [ c ould]

. ” He al so testified that “ somebody in the company who [w a s ] receiving these r eports shoul d [have] note [d] imme diately ” if a driver left the yard without doing a report

. Further, he testified that ideally C ore

- Mark

want ed the da ily electronic repo rts to be reviewed as frequently as they c ould be and
th at daily wo u ld have b e en ideal. However, o ther than a vague reference to a

“ supervisor ” or “ leadership te am ” being responsible for making r eviews, there was n o evidence as to who exactly was suppos ed to be mon itoring this reporting sys tem , what monitoring had been don e or not done regarding Dindy, and why , or what the corporate job responsibilities were for those who were supposed to have be en monitoring the sy s tem , for purpose s of assessing their status as “ vice prin cip al s. ”
McDaniel an d his now e x
- wife testified abo ut his chronic pain pro ble ms and
how his i njuries had negatively affected his work and personal life and their
relatio nship

. Voluminous records fro m multiple health

- care providers were introduced

. Two treatin g pain

- manageme nt doc tor s te stif ied that M cDa ni e l had developed a cervical facet joint syn drome as a result of th is collision , and they described the treatment that he had received, including chi r opractic car e, medical care7 and medications, pain in ject ions, nerve

- pain b l ocks , and a rhi zotomy. The doc to r s testified that his c ondition is probably permanent and that he will lik ely need nerve

pain blocks and a rhizotomy once every year or two for the r est of h is life. N o expert testimony of the reasonablen ess of past or futur e me dical charges was introduced

. A l though a ffidavits regarding the reasona bleness of the cost and necessity of past medical care were filed prior to trial pursuant to Tex as Civ il P ra c tice and Rem edies
Code Section 18.001 and preadmitted at trial , the y were later voluntarily w ithdraw n , and no jury questio n r egarding pas t me dical expenses was tendered or submitted to the jury

. Th e jury verdict , JNOV , and judgment resulted as describe d above.
II. Standards of Review /Legal P rincip les
A tr ial court may disr e gard a jury verdict and r ender a JNOV if no evid ence

s upports the jury finding on an issue necessary to liability or if a directed verdict
would have been proper. Se e Tex. R. Civ. P. 301; Tiller v. McLure , 121 S.W.3d 709,
7 13 (Tex. 2003) ; Edwards v. Chevr o let , 605 S.W.3d 219, 222 (Tex. App.

— Fort W orth 2020, n o pet.). A directed verdic t is proper only u nder limited circumstances: (1) when
the evi dence conclusively es tablishes the movant ’ s r i ght to judgment or negates the
oppo nent ’ s right or (2) when the evi d ence is insufficient to raise a material f act issue.
P r udential Ins. Co. of Am. v. Fin. Rev

. Ser vs., Inc. , 29 S.W.3d 74, 77 (Tex. 2000); Edw ards , 605 S.W.3d at 2 22.8 W e review the granting or deni al of a motion for judgment notwithst anding the
verdict und e r a legal sufficiency standard. Tanner v . Nationw i de M ut. Fire Ins. , 289 S.W.3 d 828, 830 (Tex. 2 009) ; City of Keller v. Wilson , 168 S.W.3d 8 02, 809

– 28 (Tex.
20 05) ; B & W. Su pply, Inc. v. B e ckman , 305 S.W.3d 10, 21 (Tex. App

. — Ho uston [1 st Dist.] 2009, pet. denied)

. We view the evidence i n the light most favo ra ble to t he
verdict. Ingram v. Deere , 288 S.W.3d 886, 8 93 (Tex. 2009) ; Edwards , 605 S.W. 3d at 222.
W e credit evidence f avoring the jur y verdict if reasonable jurors coul d and must disregard c ontrary ev i dence unless reasonable jurors co uld not. See Tanner , 289 S.W

. 3d

at 830 ; C ent. Ready Mix C oncrete Co. v. Isl as , 228 S.W.3d 649, 651 (Tex. 2007). We will uphold the tria l cou rt ’ s JNOV if no evidence supports the jury ’ s findi ng on a vital fact

or if the evi d ence conclusively establishes t he opposite of a vita l fact. Ci ty of Keller , 168 S.W.3d at 810 . “[E]very reas onable inference deducible from the evidence is to be indulged in ” support of th e jury ’ s finding. Bustamante v. Pon te , 529 S.W.3d 447,
45 6 (Tex. 20 1 7) (quoting Merrel l Dow Pharm., I nc. v. Havner , 953 S. W.2d 706 , 711 (Tex. 1997)). W e may s ustain a legal suf ficiency challenge only when (1) the record discloses a complete absence of evid e nce of a vital fact, (2) the court is barred by rules of law or
of evidence from giving weight to th e only evidence off er ed to pr ove a vital fact, (3 ) the ev idence offered to prove a vital fact is no more than a mere sc intilla, or (4) the

e vidence establi s hes conclusively the opposite of a vital fact. Ford Moto r Co. v. C a stillo , 444 S.W.3d 616, 620 (Te x. 2014) ; Norhill Ene rg y LLC v. McDaniel , 5 17 S.W.3d 910,
9 16 ( Tex. App.

— Fort Worth 2017, pet. denied). When a trial cour t specifies the9 groun d upon which it grant s a JNOV , an appellant need o nly challenge the grou nd
relied u pon by the trial court. Pitts & Collard, L. L .P. v. Sch echter , 36 9 S.W.3d 301,
323 (Tex. A pp.

— Houston [1 st Dist.] 2011, no pet.) ; Edascio, L.L.C. v. NextiraOn e L.L.C. , 264 S.W.3d 7 86, 795 ( T ex. Ap p.

— Hou ston [1st Di st.] 2008, pet. denied)

. Additi onally, w e are bo und by a h eighte ned standa rd of review on th e jury ’ s gross negligence findings because gross negligence must be pr oven by clear and
convi ncing evidence. Columbia Med. Ctr. o f L as Coli n as v. Hogue , 271 S.W.3d 238 , 248 (Tex. 2008) (c iting Diamond Sham r o ck Ref. Co., L.P. v

. Ha ll , 16 8 S.W.3d 164 , 170 (Tex. 200 5) , an d quoting In r e J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002) ) . T h e Hogue

court has described this heightened standard:
In a [clear

- a n d

- convincing] legal sufficiency r eview, a court should look at all the evidence i n the l i ght most favorable to the findin g to determine whether a re asonab l e trier of fact could have for med a firm beli ef or conviction that its finding was true. To give app r opriate d efe rence to the factfind er ’ s conclusions and the role of a court conduct ing a l e gal sufficiency review, looking at t he evidence in the ligh t most favorable t o the judgment mean s that a review ing court must assume that the factfinder re solved disp u ted facts in favor of its finding if a reasonable factfinder could do so. A corol lary to this requirement is that a court sho uld disregard all e vide nce th a t a reasona ble factfinder coul d have disbelie ved or found to have been incredible. This d oes not mea n that a
c our t must disregard all evidence that does not support th e finding. Disr egardin g undisputed facts that do not su ppor t the finding could ske w the a nalysis of whether there is cl ear and convinc ing evidence. 271 S.W. 3d at 248. “ ‘ Clear an d convincin g ’ evidence means the measure or degree of proof that will produce in the mind of the tr ier of fact a firm belief or con victio n as to10 the truth o f the alle gat ions soug ht to be established.” T ex . C iv . P rac. & R em . C ode
Ann. § 41.001(2) ; U

- Haul Int ’ l , Inc. v

. Waldrip , 380 S.W.3d 118, 137 (T ex. 2012). Gross negligence consi sts of both objec tive and subjective elements

. See Lee
Lewis Constr., Inc. v. Ha rrison , 70 S. W. 3d 778, 785 (Tex. 2001). Plaintiffs mu st prove by clear and convincing evidence that ( 1) when v ie wed objectively from the defend ant ’ s standpoint at the time of t he event, the act or o mission involved an extre me degr ee of
ri sk, considering the probabili ty and magni tude of the potential harm to o the rs and ( 2) the defendant had actual, subjecti ve aware ne ss of the risk involved b ut

nev ertheless proceeded with consciou s indifference to the rights, safety, or welfar e of

o thers. Se e id. ; see also T ex . C iv . P r ac . & R em . C ode Ann. § 41.0 01(11) ; U

- Haul Int ’ l , Inc. , 380 S.W.3d at 1 37. Regarding the objective co mp onent, the act or omission mus t involve “an extreme degree of r isk, considering the p robabili ty and magnitu de of the potentia l
harm to others. ” Medina v. Zuniga , 593 S.W .3d 238, 2 47 ( Tex. 201 9) (quoting Harrison , 70 S.W.3d at 785) . “[A]n extreme risk is ‘n ot a re m ote possibility of injury or even a high pr obability of min or harm, but rather the likelihoo d of serious injury to the pla intiff.’ ” Id. (quoting Mobil Oil Co rp. v. Ellender , 96 8 S.W.2d 9 17, 921 (Tex . 1998)).
“An act or omission that is merely tho ug htless, careless, or not ino rdinately risky cannot be grossly negli gent.” Id. at 249 (quoting Transp . Ins. v. Moriel , 879 S.W. 2d 10, 22 (Tex. 1994 )).11 To raise a fac t issue on th e subject ive component, there must be legal ly
sufficient evidence that the ac to r had ac tual, subjective awareness of the risk involved
but neverth eless was consciously indifferent to the rights, safety , or welfare of others. Suarez v. Ci ty of Tex as City , 465 S. W.3d 623, 633

– 3 4 (Tex. 2015). Circumstantia l evidence can be used to pro ve actual knowl edge , but it must “either directly or by
reasonable in feren ce support that conclusion.” Id. at 634 (quoting City of Corsicana v.
Stewart , 249 S.W.3d 412, 415 (Tex. 2008)) . “An infer ence is not reasona ble if it is

susce p tible to m ult iple, equ al ly probable inferences, requirin g the factfinder to guess
in order to reach a conclusion.” Id. “The defendant need not have anticipate d the precise manner of harm or to who m the injury would bef all t o have had awa reness of
the extr e me risk.” Zun iga , 593 S. W.3d at 248.
III. Analysis (a) McDaniel ’ s Appeal
McDaniel ’ s is sue on appeal is that the trial cou rt erred in granting Cross

Appellants ’ JNOV motion on jury question 5

. We will o ver rule McDa niel ’ s issue

. McDaniel ’ s challenge to the jury ’ s answer to question 6 (th e amount of punitive damages) is rendered moot by our decision. Corporations may be liable for punitive damages but onl y when the act or omi ssion is that of the corporation , not its ordinary agen ts or servants. Ha mmerly
Oa k s, Inc. v. Edwards , 958 S.W.2d 3 8 7 , 3 91 (Tex. 1997). I n adopting R esta tement o f
T orts § 909 (1939) , in King v. McGuff , 234 S.W.2d 403, 405 ( Tex. 1950) , the Supreme12 Court hel d that punitive damages may prope rly be awa rded against a master or o the r principal bec ause of the act of an agent i f, but only if, (a) the princip al authorize d the doing and the manner of the act, or (b) the agent was unfit , and the p rincipal was reckle ss in employing him, or (c) the agent was employed in a manager ial capa city and wa s acting in the scope of e mploym ent, o r (d) the employe r or a manag er of the employer ratified or approved the act. Id. ; s ee also Hammerly Oaks, Inc. , 958 S.W.2d at 391.
The classes of agents or servants considered to be in a man agerial capacit y are tho se characterized as vice pri nci pals. Ha mm erly Oaks, Inc. , 9 58 S.W.2d at 391

. These people consist of four classes of agents or servants: (a) [c] o rporate officer s; (b) those who have authority to employ, di rect, and discharge se rvants of t he master; (c) those enga ged in the performance of nond el eg able or absolute duties o f the master ; and (d) those to whom a master has confided the management of the whole or a dep artment or d ivision of his business. Id. at 391. The emp loyee ’ s t itle is n ot dispositive of his sta tus as a corporate office r , bu t the ca tegory includes one who repre sents the co rpo ra tion in its corporate capacity. Id

. at 391. Acts of lower le vel supervisory employe es who are not vice principals ar e not legally sufficie nt to su pport a finding of g ross negligence. Qwest Int ’ l Comm c ’ n s Inc. v . AT&T Corp

. , 167 S.W.3d 324, 326 (Tex. 2005). The burden of proof to est ablish the
basis o f corporate liabili ty for gross neglig ence of a servant or agent , i

. e . , vice principal, rests wit h the plaint if

f. Id.13 Jury question 5 aske d if , by c lear and convin ci ng evidence, t he harm to McDani el resulted from the gross negligence of C ore

- Mark. Clear and convin cing evidence was pro perly defined. “ Gross negligence ” was properly defined using th e obj e ctive and subjecti ve e lements. Ther e w ere , however, no instruct io ns for the jury regarding whose conduct they could consider in an swering this question other than
Core

- Mark ’ s . Although it was uncontroverted th at Dindy was in the co urse and scope of his employment with Core

- Mar k during the time i n question , it is eq u ally c lear that he was an ordi nary servant , and his conduct could no t form the ba sis for a gross negligence claim a gainst Core

- Mark. See i d

. at 326. The only other condu ct that could arg uably support a claim for gross negligence of Co re

- Mark , and tha t to which M cDaniel points in his briefing, is Core

Mark ’ s “ leadership team ” or “ supervi sor ” that was supposed to be mon itoring the PeopleNet logging sys tem
. 2 However, there w as no evidence o f the identity of the
per sons who were supposed t o be monitoring the P eople Ne t sys tem or their corporat e resp onsibilities that might qualify them as vice pri n cipals

. Without such
eviden ce, w e are left to sp eculat e as t o whether the “ leaders hi p team ” or “ sup ervisor ”

were vice pr incipals or ordinary empl oyees . Since a gross neglige nc e fin ding must be

2 There i s no evidence t hat Core

- Mark vi ce princi p a l s auth orized or ratified Dind y ’ s c onduct in question.14 supported by clear and convincing evide nce, such speculation cannot support a gross neglig ence verdict. 3 We overrule McDani el ’ s issue. (b ) Dindy and Cor e
- Mark ’ s Cross

- Appeal Dindy and C ore

- Mark present le gal suff ic iency ch allenges to th e judgment as
follows:
1. T here was legally insuffic ient evidence to s up port a negligen ce verdict against Dindy a nd C ore

- Mark because there was no probative exper t testimon y r egarding the applicable stan dard of care for either Dindy or
Core

- Mark

. 2. T here was le ga lly insufficient evidence to support a gross ne gligence verdi c t

a ga inst Dindy beca use the re was no evidence to s how that D indy h ad ac tual

or subjective aware ness of th e r isk invol ved but neverthele ss proceeded in
consciou s indiff erence to the right s, saf et

y, or welfare of others

.

3 Additionally, Core

- Mark con tends that there was no evidence to support a gross ne gligence finding against it because there was no pro b ative expert testi m ony t hat established its sta ndard of care of m o nitorin g . See FFE Transp. Servs., Inc. v. Fulgham , 154 S. W.3d 84, 91 (Tex. 2004)

. We ag ree. The standard of c are for monitoring of driver s ’ electronic logging practices is not something w it h in the knowledge of lay perso ns , and the Su preme Court held in FF E th at a defen dant company ’ s pr actices or poli cies are not s ufficient to su pport a neglig ence finding when expert testimony is required. L ikewise, “ [ t ] he mere existence of federal regulati on s does not establish the stand ard of care or establish g ross negli g enc e pe r se. ” U

- H aul Int ’ l , Inc. , 380 S.W .3d at 139. Viewi ng the evidence even in its m ost favorable light in support of the verdict , c om pany policy a nd government regulation was all that M c Daniel arguably had to rely o n in this regard. We canno t s a y that th is re cor d m eets t he heighte ned standard of review to support a gross neg ligence finding against Core

- Mark.15 3. T here was legally ins ufficient evidence t o support an aw ard of future medical damag es o f $95,000. (i

) Lega lly Insuff icient Evidence to Support Negli gence (Cr oss
Appellants ’ Issue 1) Cross

- Appellants ’ fir st issue is th at there was l egally insuffici ent evidence to support a neglige nce verdict agains t them because th ere was no probative ex pert testimony regardin g the appl i cable standard of care . W e will address only the legal
sufficien cy of the evidence rega rding Dindy because Core

- M ar k conceded that if Dindy ’ s negl igence was properl y supported by the evidence, it wou ld be imp uted to
Core

- M ark for purposes of ord i nary negl igence , which w ou ld support the judgment agai nst Core

- Mark for compen satory d amages. Cross

- Appel lants contend that “ t he FFE Court firmly established t hat

. . . expert t estimony is neces sa ry to establish a truck ing company’s standard of care

. ” FFE Transp. Servs

. , 154 S. W.3d at 91

. We bel ieve that Cross

- Appell ants are stretching the holding in FFE too far.
I n FFE , the c o u rt noted that the question o f whether exper t te stimony is

nec essary to est a blis h the standard of care i n a g iven case is reviewed de n ovo by the reviewing court

. 154 S.W.3d at 90. It then desc ribed the t est for determining whether expert testimony is req ui red to establish a stan d ard of ca re, u sing somewhat diff erent termino logy i n tw o places. The c ourt first quo ted its earlier opinion in R oar k v. Allen , 633 S.W.2 d 804, 809 (Tex

. 1982) , a medica l

- malpractic e case : “ E xpert testimony is16 necessary when t he al le

ged negligence is of s u ch a natu re as not to be within the experienc e of th e la yman.” Id. at 90 (emphasis ad ded)

. It then described th e t est as “ whether the

con duct at issue involves the use o f specialized equipment and techniques unfamiliar to the
ordi n ar y person. ” Id. at 91 (emphasis adde d)

. However, the c o urt did not r ule so b road ly as to requi re expert testi mony to establish the stan dard of care in all trucki ng

company ca ses . The test s w ere applied to the specific facts of th at case. Therefore, we mus t e xamine de nov o t he circum stances of this case to
determine wh ether expert test imony was re quired to establi sh a s tandard of care

. McD aniel alleged in part

— a nd there wa s evidence from Core

- Mark ’ s national transportation manager , Michael Terry, to suppor t

— t hat Dindy ’ s d olly disl odged and
crashed into McDaniel ’ s tra iler because D i ndy had failed to secure the doll y

— he did
not connect the s afety chains, he did not attach the coupling device onto the trailer, and he did not secure the pintle hook or c lose the la tch. 4 Terry testified that the use of the connecting e quip ment w as “ commo n sense ” and use of the saf ety chai ns is “ just
like sa fety chains on a trailer you pull behind your car . They ’ re the re to

— if it d oes

— d oe s come

— come detached, it ’ s s upposed t o keep the

— the equipment together so it
d oesn ’ t fly off the side o f the road. ” Given this testimony, a n d the ph otographic
evid enc e in the record, we hold that expert test imony was not required to establish the

4 As Core

- Mark ’ s transportation manager , Terry was respo ns ib l e for o ve rseeing all dr i ver functions, including sa fety and accidents. At t h e time of the occu rrence in question, he was the Fort Worth r eg ion manage r for Core

- Mark

.17 s tandard of care of this allegati on of failure to pro per ly secure the dolly

. See AKIB
Con st. Inc. v. Sh ipwash , 582 S.W .3d 791, 804

– 05 (Tex. App.

— Hou ston [1 st Dist.] 2019,
no pe t.) ( holding “ i n this case, a fac tfind er applying a ‘ commonsense under standing ’
could consi der the before and after pictures of the s tee l building and, with reaso nab le
p roba bility, reach a co nclusion th at t he building was damage d during the dismantling
process , ” and thus th at no expert witness tes timon y was necessa ry to support a judgment of liability ) ; MEMC Pasadena, Inc. v. Ri ddle Pow er, LLC , 472 S.W.3d 379,
404 (Te x. A pp . — H ouston [14 th Dist.] 2015, no pet.) ( stating failu re to install protective device on machine which would h ave prevented accident afte r pro mising to
ins tall one does not require expert testimo ny to establish negligenc e); Alza Corp. v. Thompson , No. 13

- 0 7

- 00 090

- CV , 2 010 WL 1254 610 , at * 28

– 29 (Tex. App.

— Corp us Ch risti

– Edinburg Apr

. 1, 2010, no pet.) (mem. op.) ( holding testimony o f corporate represent atives of de fendant regarding problems with producti on of defective
Dur age sic pain patches and handling of comp laints were suf ficient to exe mpt case fro m requirement of expert testimony in negligence claim) ; Ching Enters., I nc. v. Barahona , No. 01

- 07

- 00454

- CV, 2008 WL 4006758, at *6

– 8 (Tex. App.

— Houston [1s t Dist.] Aug. 28, 2 008 , n o pet.) (mem. op.) ( considerin g pl aintiff ’ s lay testi mony t hat grating machine “lacked a plate device that would have prevented her hands from
g etting near the blades” was sufficient to suppo rt defendant ’ s negligence without expert testimony)

. Having de termined that expert testimony wa s n o t required to establish the18 s ta ndard of care regardi n g Dindy ’ s negligence in failing to secure the dolly, we
overrule Cross

- A ppellants ’ first issue. 5 (ii) Le g ally Insufficient Evi dence to Support Dindy ’ s Gross N eglig enc e (Cross

- Appellants ’ Issue 2) Cr oss
- Appellants’ Issue 2 contends that “[ t ]here was legally insuffic ient evidence to support a gross negligence verdict against Dindy bec au se there was no
evidence to sh ow that Dindy had actual or subjective awareness of t he risk involved,
but nevertheless p roc eeded in conscious indifferen ce to the rights, safety, or welfa re of others.” They argue that because of the following evidence , “th ere is legally insufficient evid ence that Dindy was aware of a specific peril, or tha t D indy was aware
that the converter dol ly w as not properly secured and j ust didn’t care”:

• Dindy ha d been a commercial truck driver for 30 years ;

• Core

- Mark had trai ned Dindy ;

• Core

- Mark g ave Dindy written instructions on how to secure the converter dolly ;

• D ind y had att ached converter dollies over the ye ars ;

• Dind y had never before had a converter dolly come loo se from a truck or
trailer h e was driving/pulling ;

5 Cross

- Appellants have not chall enged the legal sufficiency of the evidence under a n ordi nary negli gence standard o f care not requ iring e xpert tes timon y .19 • Dindy believed he had attached the converter dolly properly on October 9,
2015 ;

• Dindy be lieved that he h ad p erformed a proper pre

- trip inspection on October 9, 2015 ;

• Dindy d id not know why the converter dolly came loose ;

• Dindy wo uld not have left the yard if he did not think he had hooked the safety chains fr om t he converter dol ly to the tra iler ; and

• Din dy atta ched the converter dolly the s ame way he did every other time
that he attached conve rter dollies

. This ar gument, however, is inconsistent with our standard of review on a leg al
insuffici ency review of a gross negligence finding : I n a legal suff i cien cy review, a court should look at all the evidence in the light most favorable to the finding to determine whet her a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. To give ap propriate deference to the fact fin der ’ s conclusions and the role of a court conducting a legal sufficiency rev iew, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume tha t the factfin der resolved dis puted facts in favor of it s fin din g if a reasonable factfinder could do so. Hogue , 271 S.W.3d at 248 (emphas is added) (quoting Hall , 168 S.W.3d at 170)

. We
must therefore als o review the evidence in support of the jury’s v erdict of gross negligence. Terry tes tified that

• hooking up trail e rs was probably the most i mp ortant part of Dindy’s job;20 • securing the dolly is common sense;

• the knowledge required to sec ure the dolly was required fo r Dindy’s
commercial driver ’ s license ;

• the kno wledge to secure the dolly wa s part of Dindy’s trainin g to pul l double loads like this;

• Terry inspected the tractor, tra iler , and dolly after the accident , and he determined that the dolly had not been properly connected;

• Dindy fai led to hook up the safety cha ins, attach the coupling d evice onto
the trailer , and s ecu re the pintle hook or close the latch;

• Dindy was terminated for no t following methods to hook up the dolly , and Dindy “ [ a ] bsolutely” did n o t do wha t he should have done; and

• it is dangerous to dri ve without safety chains attached

. Dindy testified that

• h e h ad been a comme r cial truck driver for 30 years ;

• Core

- Mark had trained him ;

• Core

- Mark gave him written ins truc tio ns on how to secure the co nverter dolly;

• he had attached converter dollies over the years;

• the collision occurred because the dolly came loos e f r om his trailer , but he did not know why it came loose;21 • he did ever ythi n g that he was supposed to do before he left on his tri p, including inspecting the dolly;

• he knew that if the do lly w ere to become disengaged , it cou ld cause serious injury or death and that it would even take an “ act of God ” fo r it not t o cause serious injury if it came loose;

• he knew that a reasonable and prudent truck driver would make sure that
the d oll y would not come off ;

• he was supposed to do a pre

- trip inspection and record it in the PeopleNet
syst em;

• doing a pre

- trip i nspection i s required by C ore

- Mark policy and federal regulation;

• pre

- trip inspection included c heck ing to see that the dolly i s sec ured;

• pre

- trip inspection i s a safeguard to make sure everything h a s b een done

c orr ectly;

• pre

- trip inspecti on i s d esigned to determine if there is a safety issue or hazard;

• pre

- trip in spectio n will reveal if the chains are not properly connected;

• he understood , without anyone having to ex plai n it to him, the importance

o f documenting ev e rything ;

• h e always logs hi s pre

- trip inspection in the PeopleNet system ;22 • fa ilure to do a pre

- trip inspectio n is possibly consciously putting other s at risk of serious harm or injury; and

• there is no pr e
- tri p inspection documented in the PeopleNet log be for e he left the yard and was involved in the collision in question

. This evidence const itutes legally sufficient evidence to support the gross negligence finding ag ains t Dindy. He was consci ously a ware of the need to secure his dolly be fore leaving on the tr ip, he knew how to secure his dolly, he knew that the
failure to secure the dolly wou ld put others on the road at serious risk of serious injury or death, he knew tha t he had a duty under company policy and federal regula tions to
do a pre

- trip inspectio n t hat was designed to detect safety hazards in the conn ections
of the dolly , and he kne w that he was required to document his pre

- trip inspection in the PeopleNet s yste m. Although there is a disput e in the testimony about w hether he
did s ecure the dolly a nd do a pre

- trip inspection, we are required to presume that the jury resolved these fac tual disputes in accordance with its verdict. See J.F.C. , 96 S.W.3d

at 266 ; R ayne r v. D illon , 501 S.W.3d 143, 148 (Tex. App.

— Texarkana 2 016, pet. d ism ’ d by agr. ). From thi s evi dence, the jury could have reasonably infer red that Di ndy chose
to drive his vehicle without sec uring his dolly , doing a pre

- trip inspection , or both and
that doing so w ould expose other s on the roa d to a risk that would req uire an “a ct of
God” to pre vent serious harm. This evidence is legally sufficient to s upport the ju ry’s finding of the objective

- an d

- subjective

- awareness prongs of the gross negligence test.23 See Ra yner , 501 S.W.3d at 150

– 5 2 ; s ee a lso USA Truck, Inc. v. Wes t , 189 S.W.3d 904,
909 ( Tex . App

. — Texarkana 2006, pet. denied) ( “ Given that [the driver] testified he

w as aware his actions posed a ris k, and given the extreme circumstances surrounding
his actions , th e jury could have reas onably concluded that [the driver] was n ot only
aware h is ac tions created a risk, but that he was also aware of the magnitude of that
risk. ” )

. We overrule Cross

- Appellants ’ Is sue 2. (iii) L egally Insufficient Evidence to Su pp ort F uture M edic al Expenses (C ross

- Appellants ’ Issu e 3) Cross

- A ppella n ts contend that th e d amage s evide nce and t estimony eli c ited at trial was legal ly in sufficient to support an award of $95,000 in future medic al expenses. Part of Cross

- A ppellants ’ argum ent is that ther e is no probative evidence of
the r easonable costs of p a st or future medic al expen ses up o n which a judgment fo r future medical exp enses could be based. Because our disposition of this argument is dispositive of this point, we need not a ddress Cross

- A pp ella nts ’ other arguments
unde r th is issue.
Th e case law reg ar ding l egal suffic ien c y of the evi dence for awards for f uture medical expenses has e ssentially been develope d by the various courts of appea l s within the general parameters of legal suf f iciency re view established by the Supreme
C ou rt. Co lumbia Med

. C t r . o f L as Col inas v. Bu sh ex re l. B ush , 122 S.W.3d 835, 8 42,
863 ( Tex. App.

— Fort Wort h 2003, pet. denied) . Certain propositions are generally
cite d by the various courts of appeal s , fo r e xample :24 • the pl aint iff must show that there is a r easonable probability th at medical expense s wi ll be in curred in the future , id. at 862

– 63 ; s ee also Brownsville Pediatric Ass ’ n v. Reye s , 68 S.W.3d 184, 191 (Tex. App.

— Corpu s Christi

– Edinburg 2002 , no pet.) ; City of San A nton io v. Vela , 762 S.W.2d 314, 3 21 (Tex. App.

— San Antonio 1988, wr it denied); Hu ghett v . Dwyre , 624 S.W.2d 401, 405 (Tex. A pp.

— Amarillo 1981, writ ref ’ d n.r.e.) ;

• the pl aint iff is not required to estab lish the ne e d for future medical conseque nces of his i njur y by expert testim ony based o n re as onab le medical proba bilit y , Bush , 122 S. W. 3 d at 863 ; s e e also Whole Foods M k t

. S w . , L.P. v. Tijerina , 979 S.W.2 d 768, 781 (Tex. App

. — Houston [14 th Dist.] 1998 , pet
. deni e d); Furr ’ s, I nc. v. Logan , 893 S.W.2d 187, 194 (Tex

. App.

— El Pas o 1995, no writ) ; Gla dewater Mun. Hosp. v. Daniel , 694 S.W.2d 6 19 , 621 (Tex

. App.

— Texa rkana 1985, n o wri t) ; but, to sustain an award of future medical ex penses, “ the plaintiff must pres ent evi dence to esta b lish that in all reasonable proba bili ty, futu re med ical care will be req uired and the reason a ble cost of that ca re , ” Gun n v. McCoy , 554 S.W. 3d 645, 671 (Tex. 2018) (emphasis a dded) ( quoting Rosenboom Mac h. & Tool, Inc. v . Machala , 995 S.W.2d 817 , 828 (Tex. Ap p.

— Houston [1st Dist.] 1999, p et. denied) ) ; see also Bill M ille r Bar

- B

-

Q E nt ers ., Ltd

. v . Gonzales , N o. 04

- 04

- 00 747

- C V , 2005 WL 2176079 , at *2 (Tex. A pp.

— S an Anto nio Aug. 24, 2005, pe t
. de nied) (mem. op.) ;

• t he r easonable value of f u ture medical care may be establis hed by ev idence of t h e r easonable value of pa st me dic al treatment , Perez v. Wil liams , No. 02

- 21

- 0039 5

- C V , 20 22 WL 17351581 , at *9, *10 (Te x. A pp.

— Fort W orth Dec. 1, 2022, no pet. ) (mem. op.) ; s e e also Harvey v. Culpepper , 801 S.W.2d 596, 599 (Tex. App.

— C orpus Chr isti 199 0, n o writ) ; City of Rosenbe r g v. Renken , 616 S.W.2d 29 2, 293 ( Tex. App.

— Hou ston [14 th D ist.] 1981, no writ) ; Thate v. Tex

. & Pac . Ry. , 595 S.W.2d 591, 601 (Tex. App

. — Dall as 1980, writ dism ’ d ) ;

• “ [a]n awa rd of future damages in a persona l i njury cas e is always [some what] specul ative , ” Perez , 2022 WL 173 51581 , at *9 ( citing Pipgras v . Hart , 832 S.W.2d 360, 365 (Tex. App.

— Fort Worth 1992, wr i t denied) ) ; “ [l] ife expecta ncy, medical advances, and the f ut ure co st of products, servi ces[,] and money are not matters of certai nty , ” i d. ( quoting Pi pgras ) , and thus

“ [t]h e j ury is instead asked to de termin e what medical expenses are

‘ reasonabl[y] probab[le] ’ ” to be incurred in th e futur e , i d. (first quoting Ant onov v. Walters , 168 S.W.3d 901, 908 (Tex. App.

— F ort Worth 2005, pet. denied) , and then citing Bush , 122 S.W .3d at 86 2

– 6 3 ) ; in making tha t25 determinat ion, a jur y may “extrapolate an award of future damages from proof of other matters” such as the medic a l ca re render ed before trial, the nature of plaintif f

’ s i n juries , and the plaintiff ’ s condition at the tim e of t rial , i d. ( first citing Anton o v , 168 S.W. 3d a t 9 08 , and then citing Bush , 122 S.W.3d at 863 , and Pipgras , 832 S.W.2d at 365 ) ; s ee also LMMM Houston #41, Ltd. v . Santibanez , N o . 01

- 16

- 00724

- CV , 2018 WL 4137971 , at *10 (Tex. App.

— Ho uston [1 st Dist.] Aug. 3 0, 2018 , no pet.) (mem. op.); N a t ’ l Freight , Inc. v

. Snyder , 191 S.W.3d 416, 426 (Tex. App.

— E astland 2006 , no pet. ) ; B ill M iller Bar

- B

-

Q , 2005 WL 2176 079 , at *2 ;

• an awa r d o f fu ture medical exp enses rest s within the sound discretion of the jury , and appel lat e courts are hes i t a n t to dis tu r b a fact fi n der ’ s conclusion regarding an award of futu re d a m ages. Antonov , 168 S. W.3d at 908 ; s ee also LMMM Houston # 41, Ltd. , 2018 WL 4137971 , a t * 1 1

. Despite these wel l

- accep ted general principles , we are presented with a question of apparent first impr e ss ion f or t his court , i.e. , wh e ther a judgment based on

a jury verdi ct for future medi cal expenses that is other wis e s upported by eviden ce of
other f actors such as t he n ature and extent of m edica l c are rendered befo re trial, the permanent nature of plaint i ff ’ s injuri es and need for future care , and the plaintiff ’ s conditi on at the time of t rial , is supported by l egally su fficient evidence if there is n o probative evid ence of t he reasonable cost of p a st m edical care or the rea sonable cost of
future medical c are. Other courts of appe als have spl it on this qu estion

. We will h old
that t he award is not supported by legally suf ficient e vide nce unde r th e se circumstances.
T h e ev idence reflected that McDani e l , age 4 6 on the date of t he occurr ence , developed a cervic a l facet joi n t syndrome as a result of this collision

. This syndr ome involv es damage to a nerv e , causing pain. There was testimony on the deb ilitating26 na ture of McDanie l ’ s pain and the negative im pact s on h is life from suffering from chronic pain

. H is trea t ment prior to trial in cluded chiroprac tic care and physician pai n
manag em ent includin g medicat io ns , multip l e injections , cervical

- medial

- ner ve
- branch
blocks , and rhizoto m y of the affecte d nerve. The medical testimony from his treating
p hysicians, D r. G reg o ry Ga rdner ( family practice and p a in me dicine) and Dr. Bradley
E ames (anesthesiolo g ist an d pain medic ine) , ref lected that t he facet join t sy ndrome was permanent and that McDaniel would need ad dit ional nerve blocks and rhizotomies every one to two yea r s fo r t he rest o f h is li fe. Although medical expense
affidavits under Texas Civil Practice and Remedies Code Section 18.001 were filed and pr e
- a d mitted, they were subsequentl y withdrawn

. See T e x. Civ. Prac. & Rem.
Code Ann. § 18.001. McDan iel testifie d he h ad p ai d $ 6 , 150 for the rhizotomy and that he expecte d to incur similar amount s in the future for similar servi ces . The billing
record fo r this proc edure reflected payments by McDan iel of $2 , 300

. A letter from Dr. Gardner , dated February 13, 2019 , recited that McDaniel ’ s estimated future medical care wo uld include MRIs ; rep eat cervical

- medial

- bran ch
b lo ck s , rhizotom ies , or both ; and rehabilitative th erapy. He st ated that the cervica l medial bran ch blocks averaged $ 1 , 350 each and that McDaniel could require up t o three bloc ks every one to two years. Dr. Gardner further stated that physical

re habilitatio n co st $200 per session with up t o 24 s essions per year. He could not

comment on the cost of th e rhizo tomy or MRI. H e mad e no comments on the
reasonableness of any of these ch arges.27 Th ere was also a treatment

- record e ntry by a chiropractor, John Kaph art, BSDC , o n Feb ruary 10, 2016 , that McDani el had a high probability of frequent
exacerbation s of his pro blem s and that in reas onab l e medical probability he wo uld
incur future medi cal expenses es timated at $1 , 200 per year. Dr. Kaph a rt made n o

re ference to the re as onabl eness of th e anticipated cha rges. In short, although there was evidence ref lecting char ges that were incurre d in the past and estimates of future medical e x penses, the re wa s no expert testimony
rega rding t he reasonableness of M c Dani el ’ s past med ical expens e s or anticipated future
medical e xpense s. O ur court has not dealt with this s pecific issu e be fore. Our previou s cases involved appellate records that incl u ded evidenc e that supported the amount of
reasonab le future medical cos ts: P erez , 2 022 WL 17351 581 , a t * 7

– 8 ( factual sufficiency

re vi ew w ith medical

- expense affidavits for past me dical expens es an d ex pert testimo n y); Antonov , 168 S.W.3d at 908

– 09 (expert t estimony); Bush , 12 2 S.W.3d at
863

– 64 (expert testim ony) ; and Pipgras , 83 2 S. W.2d at 366 (expert test imon y ). We will first address cases from our sister courts that have addresse d similar
situations. A similar case supportin g af fi rmance in this case is t h e Bill Mille r Bar

- B

-

Q Enterprise s, L td. v. G onz ales case . 2005 WL 2176079 , at *1

. Gonzales i n jured her bac k
when she fell on a defective toilet seat in the barbe cue rest aurant
. Id.
T he court su mmar ized the medical evidence as fol lows:28 Gon zales ’ s physician , Dr. Mario B ust amante , testified that Gonzales presented to him with comp la ints of l ow back p ain radiating down her left leg. Her symptoms were consistent with her diagn osis of a herniated lumb ar d isk with a small fragment ext rus ion. Dr. Busta mante treate d her conserv ati vely w ith a serie s of three epidural steroid inj ections, w hi ch improv ed Gonzal es ’ s conditio n but did not eliminate her pain. He indicated that wh en he las t saw Gonzales she had c onti nuing back pain and slightly imp roved leg pain . When asked about Gonzal es ’ s long

- term progn osis, Dr. Bustamante stated tha t her cond it ion “will require fai r ly close follow

- up and the treatment will be based on the patie nt ’ s symp tomatology.” Absent a wo rsen ing condition, such as paraly sis or loss of mu scle control , surgery wou ld not be recommende d. Additionally, pain without n eurologica l deficit w ould be t rea t ed conser vatively, such as with epidural steroid injections. He stated t hat a physician could ad mini ster a three

- shot series of i nje ctions as ofte n as every y e ar to allevi ate an in dividual ’ s pain. According to Dr. Bustaman te, these ep idural in jections cos t up to $2 ,000 per shot. Id. at * 2 (footnote omitted)

. After reducing the future medical ex penses award from $50,000 to $26,000 due

to l ack of proof of n eed fo r future inje ctions costi ng $24 ,000 , t he court affirme d the
balance of th e jury ’ s awa rd based o n Dr. Busta m a nt e ’ s testimony, Gon zales ’ s medical
condition and past treatme nt , and the jury ’ s aw ard of past medical expenses of $7 , 330. 6 Id. at *5. In he r c oncur r ing and diss enting opinion, however , Justice Duncan
p oint ed out that there was no expert testi mony that th e charges for the pro p osed
future treatment w ere reasonable, for which reason she wo u ld have reversed the trial

court ’ s j udgment awarding future medi c a l expenses. Id. ( Duncan, J., concur ring and
dissent inting ).

6 Th e opinion is silent regardi n g whet h er there was evidence of reasonab leness
o f the past m edical ch arges . I t ju s t states that such wa s the amount shown as incurred

.29 Two cases that support reversal are R osenboom Mach ine & Tool, I nc. , 995 S.W.2 d

at 828 , and L MMM Hou ston #41, Ltd. , 2018 WL 4137971 , at *13

– 14. In Rosenboom , a pro duct liability c ase, Machala was sitt ing i n a wheelchai r being ho iste d into a van.
Rosen b oom , 995 S.W .2d at 8 19

. The ho ist failed and dropped her chair. Id. Acc ording to
her doctor, s he suffer e d a vert ebral fracture requiri ng hospitaliza tion

. Id. at 824, 826.
A ccording to her family, this hospital i za t ion laste d thre e to f our wee ks

. Id. at 828. S h e suffered severe pa in, ongoing pain and disability , and add itional medic al treatment
until t rial. Id. The parties stipulated that sh e had in curre d rea sonable and necess ary past medi cal ex p enses of $9 , 596.0 4

. I d. T he ju ry found , and th e trial c ourt awarded , future medi c al expenses of $10 ,000. Id. at 820. The court of appe als re versed the

aw ard of future medica l expenses, hol ding that there was legally insufficien t evidenc e

to suppor t the award because there w as n o testim ony establish ing in reasonabl e probabi lity that Machala would re qu i re future care and the cost of su ch ca re. Id. at 828.
In LMMM , Santiban ez tripped and fell at LMMM ’ s meat mark et. LMMM Houston #41, Lt d. , 2018 WL 4137971, at *1

. He so ught reco ver y for pers onal inju ries
under a premises liability theory. Id. The jury fo un d in Sant ibanez ’ s fav or, awarding a

var iety of da mages, including future medical expens es of $ 120,000. Id. at *4. The trial

court re duc ed that amount to $20,000 in response t o L MMM ’ s insu ffi cient evidence JNOV

. Id. On cros s
- appe al, Santibane z challen g ed the granting of the JNOV,30 contending that th ere w a s legally sufficient evi dence to support the award of $1 20,0 00 in future medical expens es. Id. at *9.
T he evidence revealed t hat San tibanez ha d re ceived exte nsive ch i ropractic care
and or t hopedi c care for l ow back , knee , and foot complai nts and a neurol o g i ca l
referral f o r headach e and memory issues. Id. at * 11. He had an MRI of his back and physical therapy. Id. As in our case, the c ou r t noted t hat the record con taine d

vo lumin ous medical recor ds from Santib a nez ’ s multiple health

- care providers , but
there was no te stimony or a ffida vit pro o f of the reason ableness of the past medical
expenses an d pro of of such for future medical ex p enses. I d. at *12

– 13. Although
Santibane z testifie d that h i s pas t medical expense s totaled $19, 396 ( i ncluding a breakdown by provider) , and tha t he expe cte d his fut ure care to c ost the same as his past care, the cour t noted , Althoug h th ere is evidence to s how tha t in a ll r easonable probability S antibanez will req uire some medical care in the future , the evidence of the actual cost of such future medical care is mini mal at best. Regarding the cost of his future medical c are, the only evid ence in the record i s Santi b anez’ s te stimony as to the cost of his pa st medica l car e, which totaled $ 19,396, and h is opi nion that if he were t o continue treatment at the S outh east Chi ropractic Ce n ter or with Dr. Rodriguez, which he was no t at the time of t rial, he would expe c t the c o sts t o be similar to what he had been pre viously c harge d in regard to tho se two specif ic hea lth care providers. Bu t neither Santibanez ’s testim ony nor any other eviden c e in the record can support the jury’s awa rd of $120,00 0 of future medical expe n ses. Se e Rose nboo m Mach. , 995 S.W.2d at 828 (insu fficient evide nce supported jury ’s award of $ 10,000 for future medical ex penses where no test imony est abli shed cos t of future m edical care).31 I

d. at * 13 (emphasis added)

. The court followed it s rationa le in R osenbo o m and affi rmed
the tri al court ’ s JNO V. Id. at *13

– 14. In order to resolve this i ssue , we will first return to one of the gene ral princip l es underlyin g the rev iew of awards of future medical expenses, that to recover futur e medical expenses “the pla i ntiff m ust presen t evidence to establish t hat in al l

rea sonable probability, future med ical c are will be required and the reasonable co st of tha t

care . ” Ros enboom , 9 55 S .W.2d 828 (emphasis added). So, how does one prove the

reas onable cost of future medic a l car e? The prefe rred method is to establ ish futu r e med ical expenses through expert me dical testimony. Antonov , 168 S.W.3d at 908.
H er e, no exp ert evidence on the re as o nable cost of future ca re was offered.
What alternativ e is there to establishing the re a son able cost of f uture care other
than by expert test imony ? T he reasonable value of future medical care may be established by evide n ce of the reasonable value of pa s t medical treatment. See Whole
Foods Mkt. , 979 S.W.2d at 781 ; Thate , 595 S.W.2d at 601 . Wh a t is ne cessary t o prove reasonableness of past m e dical care ? Generally, expert testim ony i s re quire d to
establish tha t past medica l expe nses are reasonable

. Perez , 2022 WL 173515 81 , at *6. While a phy sician is us u ally the expe r t utilized for this task, ot h er in di vi duals m a y qualify to opine on that topi c depending on the procedural t ools in volv ed. S ee In re Al lstate Indem. Co. , 622 S. W .3d 87 0, 876 (Tex. 20 21 ); Gunn , 554 S.W. 3d at 6 74; Perez , 2022 WL 17 351581 , at *6

. In this cas e there was no testimony or d ocuments in evid en c e that addressed the re asonab leness of past medical expens es. The on ly32 eviden ce ab o ut past medical expenses was t he amo unt paid , which i s legally
insufficient to support a recovery o f past or fu t ure medical e xpenses. Cotton Patch C afé

v . McCarty , No. 2

- 05

- 082

- CV , 2006 WL 563307 , at *4 (Tex. App.

— Fort Worth 2006,

n o pet.) (mem . op.)

. While ac knowl edging that award s of future me dical expenses genera lly rest in
the sound discr etion of the fact fin d er because o f t he uncertainties involved, we are also cogniz ant of the f act that juries cann ot be left to merely speculate abou t the

r easonab le cost o f fut ure medical expenses

. Harvey , 801 S.W.2d at 599 ( “ W e will not affirm an award of future medical expenses bas ed on speculation. ” )

. Because there

was n o pro bative evi dence o f reason able costs of either past or fut ure medical
expen ses from which t he jury could make an asse ssment of reasonable future medic a l

e xpenses , we hold that the rec o rd in this case does not co ntain legally suffic ient evidence of the reaso nable cost of fu ture me dical exp enses to support the jur y ’ s

answer t o ques tion 2(g) and th e court ’ s judgment b ased th ereon. We sustain Cross

Appellants ’ third issue.
IV. Conclusio n We ov e rrule McDaniel ’ s issue on appeal

. We over rule C ross

- A p pella nts ’ first

two issues on appea l , but we susta in their third issue . We w il

l modify the judgment to

remove the award of futu re medical expenses for McDanie l . The judgmen t will be
affirmed a s modifie d

.33 /s/ Wade Birdwell Wade Birdwell J usti ce Delivered : March 23, 202 3