AFFIRM; and Opinion Filed June 19, 2018.

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-16-00749-CV

WAL-MART STORES TEXAS, LLC, Appellant

V.

DAWN BISHOP, Appellee

On Appeal from the 162nd Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-14-00763

MEMORANDUM OPINION

Before Justices Lang-Miers, Fillmore, and Stoddart

Opinion by Justice Fillmore

Wal-Mart Stores Texas, LLC (Walmart) appeals the trial court’s judgment on a jury verdict 

in favor of Dawn Bishop finding Walmart negligent on a theory of vicarious liability and awarding 

damages to Bishop for personal injuries sustained when a box fell from a shelf in a Walmart store 

and struck her on the head. In six issues, Walmart argues: (1) the evidence was legally insufficient 

and, alternatively, factually insufficient to support the jury’s finding that the negligence of 

Walmart’s employee proximately caused the box to fall from the shelf; (2) the evidence was legally 

insufficient and, alternatively, factually insufficient to support the jury’s finding that Bishop’s 

injury was proximately caused by the box falling on her head, and the trial court committed 

reversible error by permitting Bishop to offer expert testimony when the expert had not been 

adequately disclosed and was not a proper rebuttal witness; (3) the trial court abused its discretion 
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by denying Walmart’s Motion for Leave to File Counteraffidavits under civil practice and 

remedies code section 18.001, and refusing to allow Walmart to present expert witness testimony 

at trial on the reasonableness and necessity of Bishop’s medical expenses; (4) the trial court 

committed reversible error by submitting an ambiguous question concerning vicarious liability in 

the jury charge; (5) the evidence was factually insufficient to support the jury’s damage award for 

physical pain, legally and factually insufficient to support the jury’s damage award for mental 

anguish, and factually insufficient to support the jury’s damage award for physical impairment; 

and (6) the trial court committed reversible error by allowing improper jury argument by Bishop’s 

counsel. We affirm the trial court’s judgment.

Background

On July 7, 2012, Bishop went to a Walmart store to shop for curtains. While on her way 

to the curtain department, she entered a clearance section in an area previously occupied by a fast 

food restaurant. There is no dispute the clearance section was open to customers. At trial, Bishop 

testified there was no caution sign or other indication the clearance section was dangerous or posed 

a risk of injury. Photographs of the clearance section introduced into evidence depict multiple

adjustable, four to five tiered, metal shelving racks on wheels, sitting side by side in aisles and 

along the walls. The shelves appear full to capacity with stacked merchandise, some of which is 

haphazardly arranged. At trial, Bhola Gajurel, the Walmart employee whose negligence was 

imputed to Walmart under a theory of vicarious liability, confirmed the photographs accurately 

depicted the clearance section on the day of the accident.

Randy Dill, the Walmart manager who filled out an incident report with Bishop 

immediately after the accident, testified that Walmart used temporary shelving units on wheels 

called “plant racks” in the clearance section. He did not know whether the wheels on the plant 

racks were locked. Unlike merchandise on the general sales floor, which was arranged and stacked 
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in accordance with company standards and policies, Walmart “maintain[ed] no policies on how to 

set up a clearance section,” and there was no “rhyme or reason as to how merchandise [was] kept 

in the clearance section at Walmart.” Dill testified that falling merchandise is a serious hazard at

Walmart stores, and it is important to train employees concerning the danger posed by falling 

merchandise and the proper stacking of merchandise on the shelves. Dill indicated that unlike the 

general sales floor, there is access from either side of the plant racks in the clearance section. 

Until Dill arrived after the accident, the only other person in the clearance section with 

Bishop was Gajurel, who was stacking items on the shelves. According to Bishop, “[Gajurel] was 

back there shelving and moving things on the shelf” while she was shopping. On the first aisle, 

Bishop found some curtains, and proceeded to look for more. As she approached the second aisle, 

she “looked down and saw some curtains that might be what [she] was looking for.” Bishop could 

see Gajurel’s lower body on the other side of the shelving unit, and she could hear him stocking 

merchandise. Bishop testified she “heard him pushing the merchandise that was in the same place 

where the [box] was.” As she was bent down looking at curtains on the lowest rack, a box fell 

from above and hit her on the back of the head. “[W]hen the box fell [onto Bishop’s head] and 

[she] kind of yelled out,” “[Gajurel] came around from the other side [of the shelf].” Bishop 

testified,

[H]e came around and he said, I’m sorry and are you hurt. And I asked him: Did 

it put a – a cut in my hair? Is my head bleeding.

And he stood there and helped the – helped me look, and he said: No, ma’am, it’s 

not any blood there. 

And he asked did I need the manager, and I said yes.

Bishop indicated she neither touched the shelves in that row prior to the box falling on her head, 

nor placed any merchandise back on any of the shelves in that section. Bishop stated she did not 

see Gajurel cause the box to fall because she was looking down.
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According to Bishop, when Dill arrived at the clearance section, he filled out an incident 

report with Bishop’s assistance, and asked Bishop to make a customer statement. While Bishop 

was standing with Dill in the clearance section filling out the paperwork, Gajurel moved to the 

other side of the shelf from where Bishop and Dill were located. As Bishop was filling out the 

paperwork, Gajurel again started shelving items, and “he pushed something – it was a candle . . . 

off the shelf and onto [Bishop],” “hit[ing her] foot.”

The customer statement Bishop filled out immediately after the incident was introduced 

into evidence at trial,1 and corroborated Bishop’s testimony, stating, 

While shopping in the clearance isles (sic) for curtains a heavy box on the top shelf 

of a cart fell and hit me on my head. It was a box Cakesickle maker brand 

Homemade approx 15 lbs.2 Wile (sic) completing this form a glass candle fell on 

my foot. 

Walmart’s incident report also substantiated Bishop’s trial testimony. It described the incident as, 

“Box fell and struck customer on head,” and confirmed the incident caused “Bodily injury,” 

specifically, “Neck was hurt.” Bishop testified that after leaving the store,

[She] went home and laid down. [Her] neck had started to get a little stiff and sore, 

and [she] thought maybe [she] could sleep it off, so [she] laid down for about three 

hours, got up, told [her] husband [she] wasn’t feeling good, and it was getting 

worse. . . . 

At that point, Bishop “went to the emergency room, CareNow.”3 At CareNow, Bishop was 

diagnosed with a cervical strain and a head contusion caused by the box falling on her head. 

Because she “started to feel worse,” Bishop returned to CareNow the following day, a Sunday, 

then went to her primary care physician, Dr. Michelle Ho, on Monday. Dr. Ho prescribed physical 

 

1 The customer statement was signed by Bishop and Dill, and dated July 7, 2012.

2 Bishop testified she did not have an opportunity to weigh the box at the time she filled out the incident report or thereafter. Bishop’s 

statement the box weighed 15 pounds was her “perception” at the time of the accident and while filling out the incident report.

3 Bishop subsequently clarified that CareNow is an urgent care facility.
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therapy. Bishop completed two courses of physical therapy, which “last[ed] until about January 

of 2013.”

Bishop testified that when she walked into Walmart on July 7, 2012, she did not have any 

problem with her neck. After the incident and approximately six months of physical therapy, 

“[she] was still in the pain. The pain still didn’t go away, so [she] knew that something else was 

wrong. It – it never stopped.” Ultimately, Bishop saw a pain management physician; over a six 

or seven month period, she received thirty-four steroid injections in her neck that required general 

anesthesia; visited a chiropractor; completed at least four rounds of physical therapy; was 

examined and treated by more than five physicians, including a neurosurgeon and an orthopedic 

surgeon; and had cervical fusion surgery resulting in “two cages, . . . a plate and six screws in [her] 

neck.” Bishop testified,

I’m still in pain. It – it’s still – I have good days, and I have bad days. The type of 

work that I do, sitting at a computer all day, just having to do everyday things, 

things that you may not think about until you’ve lived that day, now a day for me, 

when I get up in the morning and brush my teeth and lean over the sink, that’s 

painful for me. Taking a shower, that’s painful for me.

When I get in the car and I turn right and left, my head right to left, your body just 

automatically does it, it just moves if you’re in traffic or something, but then I’m in 

pain. So by the time I get to work, I feel like I’ve already worked a half a day.

So there’s no day for me without pain. I sit here now with pain. . . . It’s always 

there. 

Evidence at trial showed Bishop continues to experience pain across her neck and shoulders, as 

well as throbbing in her eyes. Almost four years after the accident, Bishop, upon the 

recommendation of her neurosurgeon, still receives physical therapy, and remains under the care 

of various doctors.

 The record indicates Bishop underwent back surgery in 2010 for degenerative disk 

disease, but never complained about neck pain. According to Bishop, she was “pain free” and had 

an active lifestyle prior to the accident. She is employed as an administrative executive assistant. 
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Her job duties include typing, planning, special projects, and managerial responsibilities. Outside 

of work, her everyday activities prior to the accident consisted of spending time with her children 

and grandchildren; hosting dinners at her house; traveling to Austin to see family; sewing, 

including ongoing sewing for a ministry; and attending church activities, such as workshops. 

Bishop indicated she no longer engages in these activities as she used to. She is less active, 

mentally alert, and creative because she is “in pain all the time.” The injury “changed [her] life.” 

Now, she frequently leaves work and goes to bed. Bishop testified, “[Before the injury] I felt like 

I was in total control. I’m not anymore. The pain controls me.”

Gajurel testified that on the day of the accident, he was employed at Walmart as a cashier, 

and while at work was “very, very sick, so sick that [he] didn‘t know if [he] could work or not.” 

He was called to rearrange some of the stock in the clearance section, items that “had fallen on –

from the places.” Gajurel “was barred from lifting heavy goods,” including heavy boxes. The 

evidence at trial showed that Gajurel was not provided training or specific instruction “on what to 

do” in the clearance section or the “dangers associated with falling merchandise,” because he was 

a cashier and merchandise placement is “the responsibility of the stocker.” Gajurel testified he did 

not “know how or why the box fell off the shelf,” he was standing with his “back to Ms. Bishop” 

and not “on the opposite side of her at the very same rack when this box fell,” and he did not hear 

the box fall. However, a little more than a week before his trial testimony, Gajurel stated in a 

sworn discovery response that he believed Bishop manipulated the box and caused it to fall. 

Gajurel further testified he would be fired if he had caused the box to fall and injure Bishop, stating, 

“If I pushed [the box] then the . . . manager [would] . . . become upset. The manager is going to 

fire me because if I hurt my customer, the Walmart customer.” Gajurel also stated he did not 

“cause any glass candle to fall in this area on that day.” 
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Walmart’s medical expert, Dr. Raymond Peeples, testified that, in his opinion based on a 

review of Bishop’s medical records,4 Bishop’s neck injury was age-related and not caused by the 

box falling on her head. Dr. Peeples observed that Bishop’s medical records showed she 

underwent lumbar fusion surgery in March 2010 as a result of disk degeneration, yet “still ha[d] 

pain in her lower back” in June 2011. According to Dr. Peeples, Bishop’s lower back pain fifteen 

months after the lumbar fusion procedure indicated a “failure of surgery.” In his opinion, “[n]o 

traumatic anatomy was discovered after the Walmart event. Findings six months later on cervical 

MRI were age-related, normal findings of disk bulges.” Based upon a review of CareNow records, 

Dr. Peeples testified Bishop’s “scalp showed no lesion. There was no hematoma.” In his opinion, 

a “significant blow” would have resulted in “swelling, discoloration and enlargement,” and Bishop 

had “no objective findings of a scalp abnormality.” Because Bishop had “[c]omplaints of neck 

pain without findings,” Dr. Peeples opined she only had “a contusion and strain” as a result of the 

box falling on her head. Dr. Peeples characterized Bishop’s headache after the accident as a 

“[t]ension headach[e]” which is “frequently brought on by stress, driving, studying too many 

hours. That’s not a headache from a blow to the head that should be present regardless of [one’s] 

activities.”

Dr. Peeples further testified that because Bishop’s medical records indicated she had “[n]o 

radiation of pain to arms or hand” on “the day or two” after the accident, she therefore showed no 

symptoms of nerve injury; and an EMG report on Bishop indicated “there was no evidence of 

nerve compression or nerve damage.” In Dr. Peeples’ opinion, after the box fell on her head, 

Bishop “had symptoms attributed to a strain,” that got “steadily better,” and then “six months after 

the event and a recovery,” Bishop suffered “[n]ew symptoms” from “a new condition.”

 

4 Dr. Peeples did not physically examine Bishop, and testified he was a paid expert witness for Walmart.
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On cross-examination, Dr. Peeples testified he knew the standards maintained by the 

American Academy of Orthopedic Surgeons for orthopedic expert testimony required orthopedic 

surgeons to review all pertinent medical records, including prior depositions, before rendering any 

statement or opinion on the medical or surgical management of the patient. However, Dr. Peeples 

admitted he had not read Bishop’s deposition testimony.

Dr. James Stanley, an orthopedic surgeon and one of Bishop’s doctors, testified that in his 

opinion based on reasonable medical probability, Bishop’s neck injury, which ultimately resulted 

in the need for spinal fusion surgery, was caused by the box falling on her head as she was “bent 

forward looking down.”5 Dr. Stanley’s medical notes reflected,

[Bishop] had a box fall on her head and sustained an injury. That injury required 

surgery. To my thinking, that spells out causation . . . .

According to Dr. Stanley, because Bishop was looking down when the box hit her head, “her neck 

[was] in flexion,” which “means that the chin is – closer to the chest.” Bishop suffered an “axial 

flexion injury” because the box fell on her head from above, causing her “neck to flex,” which 

“load[ed] the spine. And flexion . . . is the worst position to load your cervical spine.” Dr. Stanley 

further testified,

[When] a high school collegiate or professional football player . . . sustain[s] a 

catastrophic cervical spine injury . . . it’s almost always in a flexed spine with an 

axial load. That’s the absolute worst biomechanical position for your neck to be in. 

. . . .

[T]he disk is a circular ligament with a jelly inside. The jelly is the actual shock 

absorber. . . . [The spine] is designed to take loads in extension. So the more flexed 

you are when you’re subjected to an axial load, the more of that force, instead of 

being dissipated equally, it goes . . . into the nucleus, which is the jelly. And when 

. . . the center of rotation is forward of where it’s . . . supposed to be, the forces that 

are directed towards . . . the jelly are then directed posterior towards the back. 

. . . .

 

5 Dr. Stanley testified he was not compensated for his testimony.
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[I]n most of us, the weak link is what we call the annulus which is that circular ring 

around the disk. . . . And so when you get an axial load in a flexed posture and the 

weak link is the annulus, you get a disk bulge or a disk displacement or sometimes 

an actual extrusion of disk material. . . . And the place that it typically goes is back 

towards the spinal canal. 

Dr. Stanley opined that, based on his review of Bishop’s medical records, Bishop did not 

suffer from any type of degeneration in her spine, and “[Bishop’s] pain and resultant medical care 

and medical treatment . . . [did not have] anything to do with degeneration in her cervical spine at 

all.”

A jury found that Gajurel was negligent while acting within the course and scope of his 

employment, his negligence proximately caused Bishop’s injury, and Walmart therefore was 

negligent on a theory of vicarious liability. The jury awarded damages to Bishop in the amount of 

$1,393,484.52, upon which the trial court rendered judgment. 

Analysis

In six issues, Walmart argues: (1) the evidence was legally insufficient and, alternatively, 

factually insufficient to support the jury’s finding that the negligence of Walmart’s employee 

proximately caused the box to fall from the shelf; (2) the evidence was legally insufficient and, 

alternatively, factually insufficient to support the jury’s finding that Bishop’s injury was 

proximately caused by the box hitting her head, and the trial court committed reversible error by 

allowing Dr. Stanley to offer expert testimony when his testimony had not been adequately 

disclosed and he was not a proper rebuttal witness; (3) the trial court abused its discretion by 

denying Walmart’s Motion for Leave to File Counteraffidavits under section 18.001 of the civil 

practice and remedies code, and refusing to allow Walmart to present expert witness testimony at 

trial on the reasonableness and necessity of Bishop’s medical expenses; (4) the trial court 

committed reversible error in submitting an ambiguous question concerning vicarious liability in 

the jury charge; (5) the evidence was factually insufficient to support the jury’s damage award for 
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physical pain, legally and factually insufficient to support the jury’s damage award for mental 

anguish, and factually insufficient to support the jury’s damage award for physical impairment; 

and (6) the trial court committed reversible error by allowing improper jury argument by Bishop’s 

counsel.

Sufficiency of the Evidence

Standard of Review

When, as here, an appellant attacks the legal sufficiency of the evidence to support an 

adverse finding on an issue on which it did not have the burden of proof, it must demonstrate that 

no evidence supports the adverse finding. Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 

S.W.3d 194, 215 (Tex. 2011); Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). In 

determining whether the evidence is legally sufficient to support a finding, we consider the 

evidence in the light most favorable to the verdict and indulge every reasonable inference that 

would support it. City of Keller v. Wilson, 168 S.W.3d 802, 821–22 (Tex. 2005). We credit 

favorable evidence if reasonable jurors could do so, and disregard contrary evidence unless 

reasonable jurors could not. Id. “The final test for legal sufficiency must always be whether the 

evidence at trial would enable reasonable and fair-minded people to reach the verdict under 

review.” Id. at 827.

A legal sufficiency challenge will be sustained when there is a complete absence of 

evidence of a vital fact; the court is barred by rules of law or of evidence from giving weight to 

the only evidence offered to prove a vital fact; the evidence offered to prove a vital fact is no more 

than a mere scintilla; or the evidence conclusively establishes the opposite of the vital fact. See 

id. at 810; King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). If there is more than 

a scintilla of evidence supporting the jury’s finding, the legal sufficiency challenge must fail. Id. 

There is more than a scintilla of evidence “when the evidence as a whole rises to a level enabling 
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reasonable and fair-minded people to have different conclusions.” Waste Mgmt. of Tex., Inc. v. 

Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 156 (Tex. 2014). However, if the evidence is 

so weak that it only creates a mere surmise or suspicion of its existence, it is regarded as no 

evidence. Id. at 156.

In considering a challenge to the factual sufficiency of the evidence, we review the entire 

record and may set aside the verdict only if it is against the great weight and preponderance of the 

evidence. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). A finding is 

against the great weight and preponderance of the evidence if it is clearly wrong, manifestly unjust, 

or “shocks the conscience.” Id. The factfinder is the sole judge of the credibility of the witnesses 

and the weight to be given their testimony. City of Keller, 168 S.W.3d at 819 (legal sufficiency 

review); Golden Eagle Archery, Inc., 116 S.W.3d at 761 (factual sufficiency review). We may not 

substitute our own judgment for that of the factfinder merely because we might reach a different 

result. City of Keller, 168 S.W.3d at 819, 822–23; Golden Eagle Archery, Inc., 116 S.W.3d at 761.

Proximate Cause Element of Negligence Claim

To establish a negligence claim, the plaintiff must prove the defendant owed a duty to the 

plaintiff, the defendant breached that duty, and the breach proximately caused the plaintiff’s injury. 

Firestone Steel Products Co. v. Barajas, 927 S.W.2d 608, 613 (Tex. 1996). “The components of 

proximate cause consist of cause in fact and foreseeability.” Rogers v. Zanetti, 518 S.W.3d 394, 

402 (Tex. 2017). These elements cannot be established by mere conjecture, guess, or speculation. 

Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). Proximate cause 

may, however, be established by either direct evidence or circumstantial evidence and reasonable 

inferences drawn from that evidence. Havner v. E–Z Mart Stores, Inc., 825 S.W.2d 456, 459 (Tex. 

1992).
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Cause in fact requires “proof that (1) the negligent act or omission was a substantial factor 

in bringing about the harm at issue, and (2) absent the negligent act or omission (‘but for’ the act 

or omission), the harm would not have occurred.” Stanfield v. Neubaum, 494 S.W.3d 90, 97 (Tex. 

2016) (quoting Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l. Dev. & Research Corp., 299 

S.W.3d 106, 122 (Tex. 2009)). If a negligent act or omission merely creates the condition that 

makes the harm possible, it is not a substantial factor in causing the harm as a matter of law. 

See id.; IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 800 (Tex. 

2004). “The evidence must go further, and show that such negligence was the proximate, and not 

the remote, cause of resulting injuries . . . [and] justify the conclusion that such injury was the 

natural and probable result thereof.” Doe, 907 S.W.2d at 477. However, the plaintiff need not 

exclude all possibilities; it is sufficient to prove that the greater probability is that the defendant’s 

conduct, alone or in contribution with others, was the cause of the harm. First Assembly of God, 

Inc. v. Tex. Utils. Elec. Co., 52 S.W.3d 482, 493 (Tex. App.—Dallas 2001, no pet.). Nor must the 

defendant’s negligence be the sole cause of the injury. Havner, 825 S.W.2d at 459. The issue is 

whether there is any evidence from which reasonable minds could draw an inference that the 

defendant’s negligent act caused the plaintiff’s injury. Id. “Whether other possible inferences 

may be drawn from the evidence is not the relevant inquiry.” Id.

A plaintiff proves foreseeability of the injury by establishing that “a person of ordinary 

intelligence should have anticipated the danger created by a negligent act or omission.” Stanfield, 

494 S.W.3d at 97 (quoting Doe, 907 S.W.2d at 478). It is not necessary for the particular accident 

complained of, or the precise manner in which the injury occurred, to be foreseeable. See Doe, 

907 S.W.2d at 478. All that is required is the injury be of a general character that might be 

reasonably contemplated as a result of the defendant’s conduct. Id. Foreseeability should be 

measured in the light of common experience applied to human conduct. Id.
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Proximate Cause of Accident

In its first issue, Walmart contends the evidence was legally insufficient and, alternatively, 

factually insufficient to support the jury’s finding that Gajurel was negligent, and his negligence 

proximately caused the box to fall from the shelf and hit Bishop on the head. The jury was given 

the following instructions:

“NEGLIGENCE” means failure to use ordinary care, that is, failing to do that 

which a person of ordinary prudence would have done under the same or similar 

circumstances or doing that which a person of ordinary prudence would not have 

done under the same or similar circumstances.

“ORDINARY CARE” means that degree of care that would be used by a person 

or ordinary prudence under the same or similar circumstances.

“PROXIMATE CAUSE” means a cause, that was a substantial factor in bringing 

about an event, and without which cause such event would not have occurred. In 

order to be a proximate cause, the act or omission complained of must be such that 

a person using ordinary care would have foreseen that the event, or some similar 

event, might reasonably result therefrom. There may be more than one proximate 

cause of an event.

A single liability question was presented to the jury:

QUESTION 1

Did the negligence, if any, of Wal-Mart, proximately cause the occurrence in 

question: 

Wal-Mart was negligent if Bhola Gajurel was negligent while acting within the 

course and scope of his employment.

Answer “Yes” or “No”

Answer: _______

The jury answered “Yes.” Walmart argues the evidence was legally insufficient to support the 

jury’s finding that Gajurel was negligent because there was no evidence as to what caused the box 

to fall from the shelf; what standard of care applied; or what conduct by Gajurel violated the 

standard of care. Walmart argues in the alternative that the evidence is factually insufficient to 

support the jury’s finding.
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As to cause in fact, there is evidence of record indicating Bishop was injured when a box 

on the upper shelf of a temporary, wheeled shelving system in the clearance section fell on her 

head as she was bent down looking at curtains on the bottom shelf. Immediately preceding the 

accident, Bishop saw Gajurel’s lower body on the other side of the rack, and heard him stocking, 

moving, and pushing merchandise around in the same area occupied by the box before it fell. Dill, 

the Walmart manager who went to the clearance section to assist Bishop immediately after the 

accident, testified that merchandise falling from shelves was a “serious hazard” at Walmart, and 

employees assigned “zoning” duties (i.e. stacking and shelving merchandise) were trained on the 

“danger of falling merchandise.” Unlike merchandise on the general sales floor, which was 

specifically arranged and stacked in accordance with standards, policies, and a “modular” sent to 

the stores by Walmart’s corporate offices that provide instructions on “where to exactly put each 

individual box” on a shelf, the merchandise in the clearance section was haphazardly stacked, with 

“no rhyme or reason” as to the arrangement of the items. Walmart did not have any standards or 

policies that applied to the arrangement of merchandise in the clearance section. The evidence 

also showed that Walmart invited and intended for customers to enter the clearance section.

Although he was employed and trained as a Walmart cashier, Gajurel was in the clearance 

section at the time of the accident re-arranging and stacking items on the temporary shelving units. 

Gajurel admitted he did not know “what to do” or how to properly stack the items, and had not 

been informed of the dangers of falling merchandise. At trial, Gajurel testified he did not know 

how or why the box fell, yet his sworn discovery response just a week prior to his testimony blamed 

Bishop for manipulating the box and causing it to fall. Gajurel further testified he would be fired 

if he had caused the box to fall and injure Bishop. Gajurel denied causing a glass candle to fall 

and hit Bishop’s foot despite Bishop’s contemporaneous documentation of that event in the 

incident report she filled out while standing in the clearance section with Dill.
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As to foreseeability, Dill testified that because Walmart was aware of the “serious hazard” 

posed by merchandise falling from shelves and injuring shoppers, Walmart’s own standards and 

policies required employees charged with stocking items on shelves to receive training on how to 

properly shelve items to prevent merchandise from falling and injuring someone – training and 

knowledge Gajurel lacked. Gajurel admitted he did not know “what to do” while stacking, 

shelving, and re-arranging merchandise in the clearance section, a customer shopping space that 

was not subject to store standards or policies regarding the stocking and placement of store 

merchandise.

From this evidence, the jury could reasonably infer that the box fell due to Gajurel’s 

negligent actions moving and stacking merchandise on the shelves in the clearance section, and 

Walmart could reasonably foresee that boxes and other merchandise haphazardly stacked in the 

clearance section could fall and injure a customer. While there was conflicting evidence as to 

Gajurel’s precise whereabouts in the clearance section at the moment the box fell on Bishop, the 

jury was entitled to believe Bishop’s testimony and reject any conflicting testimony.

We conclude there was more than a scintilla of evidence from which the jury could 

reasonably have drawn the inference that Gajurel’s actions in moving and shelving merchandise 

in the clearance section without the benefit of standards or policies for stocking merchandise on 

the temporary, wheeled shelving units in that section, and without knowledge of “what to do” or 

training on how to stock and shelve merchandise in that section, proximately caused the box to fall 

on Bishop’s head. Thus, the evidence was legally sufficient to support the jury’s finding that 

Gajurel was negligent and that his negligence was the proximate cause of the box falling from a 

shelf and hitting Bishop on the head. King Ranch, 118 S.W.3d at 751. Further, the issue of 

proximate cause is one of fact for determination by the jury, and the jury’s finding of negligence 

was not so against the great weight and preponderance of the evidence that it is clearly wrong, 
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manifestly unjust, or shocks the conscience. Golden Eagle Archery, 116 S.W.3d at 761. 

Therefore, we conclude the evidence was factually sufficient to support the jury’s finding that 

Gajurel was negligent and that his negligence was the proximate cause of the box falling from a 

shelf and hitting Bishop on the head. We resolve Walmart’s first issue against it.

Proximate Cause of Injury

In its second issue, Walmart complains the evidence was legally insufficient and, 

alternatively, factually insufficient to support the jury’s finding that Bishop’s injury was caused 

by the box hitting her head. The record, however, contains testimony and documentary evidence 

from which the jury could reasonably infer that the box falling from a shelf was the proximate 

cause of Bishop’s neck injury. 

Bishop testified that she did not have any problem with her neck when she walked into 

Walmart on July 7, 2012. The testimonial and documentary evidence at trial showed that her neck 

was injured when the box fell on her head. Walmart’s incident report stated, “Box fell and struck 

customer on head,” causing “bodily injury,” specifically, “Neck was hurt.” Within hours of the 

accident, Bishop went to an urgent care facility, where she was diagnosed with a cervical strain 

and a head contusion. She returned to the urgent care facility the next day, and visited her doctor 

on the third consecutive day following the accident. Thereafter, Bishop continuously received 

treatment from physicians and other health-care providers, including physical therapy and invasive 

surgery resulting in the placement of two cages, a plate, and six screws in her neck. At the time 

of trial, Bishop remained under the care of physicians and other health-care providers, including 

treatment and physical therapy for her neck pain. 

Dr. Stanley testified that, based on reasonable medical probability, Bishop’s neck injury 

was caused by the box falling on her head as she was “bent forward looking down,” necessitating 

spinal fusion surgery in her neck. Dr. Stanley provided a detailed medical explanation of how a 
–17–

box striking a person’s head in that position could cause severe neck trauma and injury, stating 

“[t]hat’s the absolute worst biomechanical position for your neck to be in.” Although Dr. Peeples 

testified that Bishop’s injury was age-related and not caused by the box falling on her head, it was 

the role of the jury to assess witness credibility and weigh contradictory evidence.

Based upon Dr. Stanley’s testimony, Bishop’s medical records and testimony, Walmart’s 

records of the accident, and the temporal proximity between the accident and Bishop’s immediate 

neck pain and multiple visits to the urgent care facility, physicians, and other health-care providers, 

there existed more than a scintilla of evidence from which the jury could reasonably infer that 

Bishop’s neck injury was proximately caused by the box falling on her head while she was looking 

down. See Guevara v. Ferrer, 247 S.W.3d 662, 666–68 (Tex. 2007) (“[W]hen combined with 

other causation evidence, evidence that conditions exhibited themselves or were diagnosed shortly 

after an event may be probative in determining causation.”). Thus, the evidence was legally 

sufficient to support the jury’s proximate cause finding. King Ranch, 118 S.W.3d at 751. Further, 

the issue of proximate cause is one of fact for determination by the jury, and the jury’s finding that 

Bishop’s neck injury was proximately caused by the box striking her head while she was looking 

down was not so against the great weight and preponderance of the evidence that it is clearly 

wrong, manifestly unjust, or shocks the conscience. Golden Eagle Archery, 116 S.W.3d at 761. 

Therefore, we conclude the evidence was factually sufficient to support the jury’s proximate cause 

finding. 

We resolve Walmart’s second issue against it.

Damage Awards

In its fifth issue, Walmart complains the evidence is factually insufficient to support the 

jury’s damage award for physical pain, legally and factually insufficient to support the jury’s 

damage award for mental anguish, and factually insufficient to support the jury’s damage award 
–18–

for physical impairment.6 With respect to the jury’s damage award for physical pain, Walmart 

simply states in its appellate brief that the evidence must be sufficient to show Bishop’s pain was 

caused by the box falling on her head rather than from a prior surgery on the lumbar region of her 

spine. Other than offering that single statement, Walmart does not provide substantive analysis of 

its factual sufficiency issue, nor does it provide citations to applicable law. We therefore question 

whether Walmart has presented anything for our review; an appellant’s failure to cite legal 

authority or provide substantive analysis of a legal issue results in waiver of the complaint. 

Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (observing that 

error may be waived by inadequate briefing). With regard to the jury’s damage award for mental 

anguish, Walmart argues Bishop’s testimony was generalized and conclusory, and not direct 

evidence of the nature, duration, or severity of Bishop’s mental anguish. Finally, concerning the 

jury’s damage award for physical impairment, Walmart argues Bishop failed to produce sufficient 

evidence of those tasks or activities she can no longer perform, or a loss of the enjoyment of life 

separate and apart from pain and suffering.

“The process of awarding damages for amorphous, discretionary injuries such as mental 

anguish or pain and suffering is inherently difficult because the alleged injury is a subjective, 

unliquidated, nonpecuniary loss.” Figueroa v. Davis, 318 S.W.3d 53, 62 (Tex. App.—Houston 

[1st Dist.] 2010, no pet.) (internal citation omitted). The amount of damages awarded for pain and 

suffering is necessarily speculative and each case must be judged on its own facts. Id. at 62. 

Physical pain and suffering may be established through a plaintiff’s testimony or other evidence, 

including circumstantial evidence. Ten Hagen Excavating, Inc. v. Castro-Lopez, 503 S.W.3d 463, 

487 (Tex. App.—Dallas 2016, pet. denied); Christian Care Ctrs. v. O’Banion, No. 05-12-01407-

 

6 The jury awarded damages in the following amounts: $150,000 for physical pain and mental anguish sustained in the past; $125,000 for 

physical pain and mental anguish that, in reasonable probability, Bishop will sustain in the future; $175,000 for physical impairment sustained in 

the past; $250,000 for physical impairment that, in reasonable probability, Bishop will sustain in the future; and $693,484.52 for reasonable expenses 

of necessary medical care incurred in the past.
–19–

CV, 2015 WL 5013615, at *4 (Tex. App.—Dallas Aug. 25, 2015, no pet.) (mem. op.); HCRA of 

Tex., 178 S.W.3d 861, 871 (Tex. App.—Fort Worth 2005, no pet.). If there is no direct evidence 

of pain, the jury is permitted to infer the occurrence of pain from the nature of the injury. Ten 

Hagen Excavating, 503 S.W.3d at 487.

Generally, an award of mental anguish damages must be supported by direct evidence that 

the nature, duration, and severity of mental anguish was sufficient to cause, and caused, either a 

substantial disruption in the plaintiff’s daily routine, or a high degree of mental pain and distress. 

Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 231 (Tex. 2011); see also HCRA of Tex., 178 S.W.3d 

at 871 (“The duration of the pain and mental anguish is an important consideration.”). There must 

be evidence of the existence of mental anguish, and some evidence to justify the amount awarded. 

HCRA of Tex., 178 S.W.3d at 871.

Physical impairment is a distinct injury from pain and suffering and includes limitations 

on physical activities. See Estrada v. Dillon, 44 S.W.3d 558, 561–62 (Tex. 2001). “Physical 

impairment is an element of damages that extends beyond loss of earning capacity and beyond any 

pain and suffering, to the extent that it produces a separate loss that is substantial or extremely 

disabling.” Day v. Domin, No. 05-14-00467-CV, 2015 WL 1743153, at *4 (Tex. App.—Dallas 

Apr. 16, 2015, no pet.) (mem. op.) (quoting Dawson v. Briggs, 107 S.W.3d 739, 752 (Tex. App.—

Fort Worth 2003, no pet.)); see also Allen v. Whisenhunt, 603 S.W.2d 242, 244 (Tex. Civ. App.—

Houston [14th Dist.] 1980, writ dism'd w.o.j.) (to recover damages for future physical impairment, 

one must have proof of physical impairment extending beyond impediment to earning capacity 

and pain and suffering, and producing a substantial, distinctly separate loss). “Evidence of 

physical impairment may include proof of the need for physical therapy and the inability to 

participate in physical activities engaged in before the accident.” Pierre v. Swearingen, 331 

S.W.3d 150, 156 (Tex. App.—Dallas 2011, no pet.) (citing Estrada, 44 S.W.3d at 561–62). 
–20–

Evidence of difficulty accomplishing tasks may support an award for physical impairment 

damages. Day, 2015 WL 1743153, at *4.

Once the existence of some pain, suffering, and mental anguish has been established, “[a] 

great deal of discretion is given to the jury in awarding an amount of damages it deems appropriate 

for pain and suffering.” Christian Care Ctrs., 2015 WL 5013615, at *4; PNS Stores v. Munguia, 

484 S.W.3d 503, 517–18 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (“In personal injury 

cases, the jury has discretion over the amount of damages.”); HCRA of Tex., 178 S.W.3d at 871. 

The amount awarded is left to the discretion of the factfinder, because there is no objective way to 

measure the adequacy of damages. Figueroa, 318 S.W.3d at 62–63. “Because jurors are the sole 

judges of the credibility of witnesses and may choose to believe one witness and disbelieve 

another, we must not substitute our opinion for that of the jury.” PNS Stores, 484 S.W.3d at 510. 

The evidence at trial established that Bishop was prescribed no fewer than four rounds of 

physical therapy beginning immediately after the box fell on her head, and continues to require 

ongoing physical therapy; visited numerous physicians and other health-care providers; and 

underwent numerous medical treatments, including a cervical fusion surgery resulting in the 

placement of two cages, a plate, and six screws in her neck. At trial, Bishop testified that almost 

four years after the accident, she is still in pain. She continues to experience pain across her neck 

and shoulders, and throbbing in her eyes. She cannot engage in every-day activities as simple as 

turning her neck while driving, showering, sitting at her computer for work, or leaning over the 

sink while brushing her teeth without pain. The evidence showed Bishop’s injury now limits her 

mobility, thereby preventing her from living her life as she did before the box fell on her head. 

She no longer is able to spend time with her children and grandchildren, host dinners at her house,

sew, travel, and attend church activities as she did before the accident, and is generally less active, 

mentally alert, and creative. She frequently leaves work and goes directly to bed. Bishop testified 
–21–

she has lost the control she previously had over her life because of the pain, stating, “[Before the 

injury] I felt like I was in total control. I’m not anymore. The pain controls me.” The record 

reflects that prior to the box falling on her head, Bishop never complained about neck pain, 

including after undergoing back surgery in 2010. 

Even if Walmart has not waived its argument that the evidence is factually insufficient to 

support the jury’s damage award for physical pain, we conclude on this record that the evidence 

of physical pain was not so weak that it can be said the jury’s award was clearly wrong, manifestly 

unjust, or shocks the conscience. PNS Stores, 484 S.W.3d at 518 (headaches, ringing in ears, 

severe pain in eye upon exposure to light, and soreness and stiffness in neck and shoulder for over 

two years constitutes factually sufficient evidence to support damage award for physical pain). 

Similarly, there is more than a scintilla of evidence supporting the jury’s damage award for mental 

anguish and the evidence was not so weak that it can be said the jury’s award was clearly wrong, 

manifestly unjust, or shocks the conscience. Id. (evidence of inability to shake off negative 

feelings, inability to feel upbeat and happy, and “heart [no longer] in anything” constitutes 

factually sufficient evidence to support mental anguish award). Finally, on this record the evidence 

of physical impairment was not so weak that it can be said the jury’s award was clearly wrong, 

manifestly unjust, or shocks the conscience. See Pierre, 331 S.W.3d at 156 (concluding evidence 

plaintiff spent three months in physical therapy and sustained loss of full range of motion in neck 

due to pain, limiting ability to drive and transport grandchildren, was legally and factually 

sufficient to support physical impairment damage award); Day, 2015 WL 1743153, at *4.

We resolve Walmart’s fifth issue against it.

Admission of Evidence

In a sub-issue of its second issue, Walmart complains the trial court abused its discretion 

in allowing Dr. Stanley to testify because Dr. Stanley was not adequately disclosed or a proper 
–22–

rebuttal witness. The discovery rule requiring disclosure of experts before trial is intended to 

provide adequate information about the experts’ opinions to allow the opposing party to prepare 

to cross-examine the experts and rebut the testimony with their own experts. Exxon Corp. v. W. 

Tex. Gathering Co., 868 S.W.2d 299, 304 (Tex. 1993); Taylor Foundry Co. v. Wichita Falls Grain 

Co., 51 S.W.3d 766, 773 (Tex. App.—Fort Worth 2001, no pet.); see also TEX. R. CIV. P. 194.2.

“The trial court is the gatekeeper of expert evidence, and [appellate courts] may not usurp 

that responsibility.” Taylor Foundry Co., 51 S.W.3d at 773. We review the trial court’s decision 

to allow expert testimony under an abuse of discretion standard. E.I. du Point de Nemours & Co., 

Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). “The test for abuse of discretion is whether 

the trial court acted without reference to any guiding rules or principles,” id., “not whether, in the 

opinion of the reviewing court, the facts present an appropriate case for the trial court’s action.” 

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). The appellate court 

must determine only whether allowing the testimony was “arbitrary or unreasonable.” Id. at 242. 

“We must uphold a trial court’s evidentiary ruling if there is any legitimate basis in the record to 

support it.” Rogers v. Alexander, 244 S.W.3d 370, 383 (Tex. App.—Dallas 2007, no pet.).

The record shows Bishop timely designated Dr. Stanley as a non-retained testifying expert, 

but did not call on him to testify as part of her case in chief. Rather, Bishop called Dr. Stanley to 

testify as a rebuttal witness concerning the testimony of Walmart’s testifying expert, Dr. Peeples, 

that Bishop’s “pain and resultant medical care and medical treatment” were the result of the 

degeneration of her cervical spine. In a hearing conducted outside of the presence of the jury, the 

trial court reviewed Dr. Peeples’s report, and determined it did not state whether Bishop’s neck 

injury was caused by the box striking Bishop’s head or a “pre-existing degenerative condition in 
–23–

her neck.” On that basis, the trial court allowed Dr. Stanley to testify as a rebuttal witness on the 

issue of causation.7 The trial court stated:

. . . I agree with [Bishop that the report did not address causation] because I can’t 

discern from what . . . Defense counsel gave me as to . . . causation . . . . [B]asically 

[Peeples] was just negating some of the medical records, but he never actually 

stated that . . . [Bishop’s] injury was not caused by the falling of the [box].

The trial court specifically limited the scope of Dr. Stanley’s testimony to the issues of causation 

and cervical degeneration. After considering the foregoing, we cannot conclude the trial court 

abused its discretion by allowing Dr. Stanley’s rebuttal testimony. We resolve the sub-issue of 

Walmart’s second issue against it.

In its third issue, Walmart contends the trial court abused its discretion by denying 

Walmart’s Motion for Leave to File Counteraffidavits under Texas Civil Practice and Remedies 

Code Section 18.001, and not allowing Walmart to present at trial the expert testimony of Dr. Brent 

Morgan on the reasonableness and necessity of Bishop’s medical expenses. Bishop moved to 

exclude Dr. Morgan as an expert witness on the ground that Walmart did not attempt to file a 

section 18.001 counteraffidavit until late January 2016, long after the statutory deadline had 

passed, even though Bishop timely began filing section 18.001 affidavits more than a year prior, 

in early January 2015. Walmart argues the trial court, as a matter of fairness, should have permitted 

Walmart to file a counteraffidavit by Dr. Morgan under section 18.001(e)(1), since it allowed 

Bishop to challenge Walmart’s designation of Dr. Morgan as an expert witness thirteen days after 

 

7 At the hearing, Walmart’s counsel tendered Dr. Peeples’ report to the court reporter as Defendant’s Exhibit B for inclusion in the record but 

not for submission to the jury. While Defendant’s Exhibit B does not appear to be included in the record on appeal, it is not necessary to our 

analysis of this issue since the hearing was recorded in the trial transcript which is included in the appellate record and Walmart does not challenge 

the trial court’s characterization of the content of Dr. Peeples’ report.
–24–

the deadline set forth in the agreed scheduling order.8 Bishop responds that when Walmart did not 

timely file section 18.001 counteraffidavits, and did not seek leave to late-file counteraffidavits for 

more than a year after she began filing section 18.001 affidavits, she “had every reason to believe 

that [she] would not be required to arrange – and pay – for all of her treating physicians to testify 

live at trial,” and it was not feasible to do so ten weeks before trial.

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

that (1) the plaintiff’s injury was caused by the defendant’s negligence, and (2) the medical 

treatment was necessary and the charges for that treatment were reasonable. See Ten Hagen 

Excavating, 503 S.W.3d at 490–91. A plaintiff may present evidence concerning the 

reasonableness and necessity of past medical expenses through expert testimony at trial or an 

affidavit from the plaintiff’s health-care provider made in compliance with section 18.001 of the 

civil practice and remedies code. Id. An opposing party intending to controvert a claim in a 

medical expense affidavit must serve a counteraffidavit within the parameters prescribed in section 

18.001. See id. at 492; see also TEX. CIV. PRAC. & REM. CODE ANN. § 18.001(e)–(f) (West 2015). 

In pertinent part, section 18.001 provides,

(b) Unless a controverting affidavit is served as provided by this section, an 

affidavit that the amount a person charged for a service was reasonable at the time 

and place that the service was provided and that the service was necessary is 

sufficient evidence to support a finding of fact by judge or jury that the amount 

charged was reasonable or that the service was necessary.

. . . . 

(e) A party intending to controvert a claim reflected by the affidavit must serve a 

copy of the counteraffidavit on each other party or the party’s attorney of record:

 

8 On appeal, Walmart also complains the trial court changed its position on allowing Bishop to challenge Walmart’s designation of Dr. Morgan 

as an expert witness after the scheduling order deadline. Walmart argues that at a pre-trial hearing on February 22, 2016, the trial court stated any 

challenges to expert testimony it had not already ruled on were deemed to be waived, including Bishop’s motion to exclude Dr. Morgan as an expert 

witness; then, at a subsequent pre-trial hearing on February 26, 2016, the trial court allowed Bishop to challenge, pursuant to section 18.001, 

Walmart’s motion for leave to file a counteraffidavit by Dr. Morgan. However, the trial court has wide discretion to enforce a scheduling order 

and manage its docket, see Bagwell v. Ridge at Alta Vista Investment, I, LLC, 440 S.W.3d 287, 292 (Tex. App.—Dallas 2014, pet. denied), and the 

trial court explicitly stated its decision on Walmart’s motion for leave to file counteraffidavit was based on the “clear” requirements of section 

18.001. 
–25–

(1) not later than:

(A) 30 days after the party receives a copy of the affidavit; and

(B) at least 14 days before the day on which evidence is first presented at the trial 

of the case; or

(C) with leave of the court, at any time before the commencement of evidence at 

trial. 

TEX. CIV. PRAC. & REM. CODE ANN. § 18.001(b), (e). “Section 18.001 is an evidentiary statute 

that accomplishes three things: (1) it allows for the admissibility, by affidavit, of evidence of the 

reasonableness and necessity of charges that would otherwise be inadmissible hearsay; (2) it 

permits the use of otherwise inadmissible hearsay to support findings of fact by the trier of fact; 

and (3) it provides for exclusion of evidence to the contrary, upon proper objection, in the absence 

of a properly-filed controverting affidavit.” Hong v. Bennett, 209 S.W.3d 795, 800 (Tex. App.—

Fort Worth 2006, no pet.) (emphasis added).

Unless a controverting affidavit is served as provided by section 18.001, the initial affidavit 

is sufficient evidence to support a jury’s finding that past medical expenses were reasonable and 

necessary. Liang v. Edwards, No. 05-15-01038-CV, 2016 WL 7163841, at *2 (Tex. App.—Dallas 

Nov. 23, 2016, no pet.) (mem. op.) (“The jury is not required to award a plaintiff the amount of 

damages established in the affidavit, but if it chooses to do so, the affidavit is sufficient evidence 

to support the jury’s finding that past medical expenses were reasonable and necessary.”). By 

filing a counteraffidavit compliant with section 18.001, the defendant can preclude the plaintiff’s 

affidavit from being used as evidence of the reasonableness and necessity of medical expenses, 

and instead require the plaintiff to prove reasonableness and necessity by expert testimony at trial. 

Liang, 2016 WL 7163841, at *2; see also Rountree v. Cavazos, No. 05-16-00512-CV, 2017 WL 

2730422, at *1 (Tex. App.—Dallas June 26, 2017, no pet.) (mem. op.) (medical provider’s section

18.001 affidavit saves plaintiff expense of hiring expert to testify medical expenses were 

reasonable and necessary). Among other requirements, the defendant must file and serve a copy 
–26–

of the counteraffidavit not later than thirty days after receipt of the initial affidavit and at least 

fourteen days before the day on which evidence is first presented at trial, or with leave of court at 

any time before commencement of evidence at trial. TEX. CIV. PRAC. & REM. CODE ANN.

§18.001(e)(1). Because section 18.001 is an evidentiary statute, we review the trial court’s ruling 

on the admission or exclusion of a section 18.001 affidavit under an abuse of discretion standard. 

Liang, 2016 WL 7163841, at *2. We must uphold the trial court’s evidentiary ruling if there is 

any legitimate basis in the record for the ruling. Id.

Bishop began filing section 18.001 affidavits pertaining to the reasonableness and necessity 

of past medical expenses in January of 2015, and continued to do so until October of 2015. In 

March of 2015, Walmart timely designated Dr. Morgan as a testifying expert witness and provided 

Bishop with a copy of Dr. Morgan’s expert report. Walmart, however, failed to timely serve or 

file a controverting affidavit of Dr. Morgan under section 18.001. As relevant to this appeal, on 

January 25, 2016, Bishop filed a motion to exclude Dr. Morgan’s testimony on the issue of the 

reasonableness and necessity of Bishop’s past medical expenses on the basis that Walmart failed 

to timely file a section 18.001 controverting counteraffidavit. On January 29, 2016, Walmart filed 

a motion for leave to file a counteraffidavit and response to Bishop’s motion to preclude Dr. 

Morgan from testifying at trial. The trial court denied Walmart’s motion for leave to file 

counteraffidavit, and the trial transcript reflects that Dr. Morgan did not testify at trial.

Walmart argues the trial court erred by excluding the controverting counteraffidavit of Dr. 

Morgan and not permitting him to testify at trial regarding the reasonableness and necessity of 

Bishop’s past medical expenses, because the timely designation or Dr. Morgan as a testifying 

witness provided notice that Walmart had engaged a testifying witness on that issue. However, 

“[o]ne of the purposes of a section 18.001 affidavit is that it ‘provides for exclusion of evidence to 

the contrary, upon proper objection, in the absence of a properly-filed counteraffidavit.’” Ten 
–27–

Hagen Excavating, Inc., 503 S.W.3d at 494 (internal citation omitted). Allowing Dr. Morgan to 

testify would have undermined a purpose of the statute, which is to spare Bishop the expense of 

hiring an expert witness to testify at trial if the issue of the reasonableness and necessity of medical 

expenses has not been joined by Walmart’s filing of a counteraffidavit. See id. at 491, 494 (“in 

the absence of a proper counteraffidavit, we cannot say that the trial court abused its discretion 

when it excluded [doctor’s] trial testimony controverting the [plaintiffs’] section 18.001 

affidavits”); see also Rountree, 2017 WL 2730422, at *1. 

Timely filing of a section 18.001 affidavit is a condition precedent to its admission. See 

Bituminous Cas. Corp. v. Cleveland, 223 S.W.3d 485, 493 (Tex. App.—Amarillo 2006, no pet.). 

It is undisputed that Bishop timely filed section 18.001 affidavits. Walmart had sufficient notice 

of the need to timely file a section 18.001 counteraffidavit, however it did not attempt to file a 

counteraffidavit until long after the statutory deadline had passed. We conclude there was a 

legitimate basis for the trial court to deny Walmart’s request for leave to late-file a counteraffidavit, 

and, therefore, the court did not abuse its discretion in denying that request and declining to permit 

Dr. Morgan to testify at trial.

We conclude the trial court did not act without reference to guiding rules or principles, and 

there was a legitimate basis for its evidentiary rulings. Since the court did not abuse its discretion, 

we resolve Walmart’s third issue against it.

Jury Charge Error

In its fourth issue, Walmart argues the trial court committed harmful error by failing to 

limit the scope of Question 1 of the jury charge, and the related definitions of “negligence” and 

“ordinary care,” to a theory of liability based solely on the conduct of Gajurel. Walmart does not 

contend the trial court’s definitions or instructions misstated the law. Rather, Walmart claims the 

instructions were ambiguous, and confused the jury by failing to include Gajurel’s name in the 
–28–

definitions of “negligence” and “ordinary care,” and “advise jurors [in Question 1] that Wal-Mart 

was negligent only if Gajurel was negligent.” 

Trial courts have broad discretion in formulating a charge to submit disputed issues to the 

jury. Varme v. Gordon, 881 S.W.2d 877, 881 (Tex. App.—Houston [14th Dist.] 1994, writ 

denied). The standard of review for jury charge error is abuse of discretion. Webb v. Glenbrook 

Owners Ass’n. Inc., 298 S.W.3d 374, 380 (Tex. App.—Dallas 2009, no pet.) (“We review claimed 

error in the court’s charge under an abuse of discretion standard.”). A trial court abuses its 

discretion if it acts in an arbitrary or unreasonable manner, or if it acts without reference to guiding 

rules or principles. Downer, 701 S.W.2d at 241–42. To determine whether an alleged error in the 

jury charge is reversible, we must consider the pleadings of the parties, the evidence presented at 

trial, and the charge in its entirety. Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass’n, 

710 S.W.2d 551, 555 (Tex. 1986). We do not reverse for jury charge error in the absence of harm. 

See Lone Star Gas Co. v. Lemond, 897 S.W.2d 755, 756–57 (Tex. 1995) (per curiam). For harm 

to result, the error must probably cause the rendition of an improper judgment. TEX. R. APP. P.

44.1(a)(1); Friday v. Spears, 975 S.W.2d 699, 700 (Tex. App.—Texarkana 1998, no pet.) (“Error 

in the jury charge is reversible only if it probably caused the rendition of an improper verdict.”).

The rules of civil procedure require the trial court to submit the cause upon broad form 

questions when feasible, and to submit such instructions and definitions as shall be proper to enable 

the jury to render a verdict. TEX. R. CIV. P. 277. A proper instruction is one that assists the jury, 

correctly states the law, and is supported by the pleadings and evidence. Latham v. Burgher, 320 

S.W.3d 602, 606 (Tex. App.—Dallas 2010, no pet.). The trial court has broad discretion in 

submitting explanatory instructions and definitions as long as the charge is legally correct. 

Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 664 (Tex. 1999). After the jury has retired for 

deliberations, the trial court may supplement its instructions “touching any matter of law.” See
–29–

TEX. R. CIV. P. 286. The trial court may also supplement its instructions in response to a question 

from the jury during deliberations. See id. 

To preserve error in the charge, the objecting party must present a complaint to the trial 

court that distinctly designates the error and grounds for the objection. See TEX.R. APP. P. 33.1(a); 

TEX. R. CIV. P. 272, 274; Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 43 (Tex. 2007). Any 

complaint pertaining to an instruction is waived unless specifically included in the objection. 

Sears, Roebuck & Co. v. Abell, 157 S.W.3d 886, 891 (Tex. App.—El Paso 2005, pet denied). 

Objections to the charge and requests for instructions must comport with the arguments made on 

appeal. Cont’l Cas. Co. v. Baker, 355 S.W.3d 375, 383 (Tex. App.—Houston [1st Dist.] 2011, no 

pet.). If the objection at trial is not the same as the complaint on appeal, the issue has not been 

preserved for review. Id.

As discussed, supra, a single liability question was presented to the jury:

QUESTION 1

Did the negligence, if any, of Wal-Mart, proximately cause the occurrence in 

question: 

Wal-Mart was negligent if Bhola Gajurel was negligent while acting within the 

course and scope of his employment.

Answer “Yes” or “No”

Answer: _______

The jury answered “Yes.” There is no dispute the trial court defined “negligence” and “ordinary 

care” in accordance with the Texas Pattern Jury Charges. Question 1 instructed the jury concerning 

the single means by which Walmart could be found liable for negligence, “Wal-Mart was negligent 

if Bhola Gajurel was negligent while acting within the course and scope of his employment” 

(emphasis added). The single liability question, which incorporated the term “negligence” as 

defined by the charge, is explicitly limited to the acts of Gajurel within the course and scope of his 

employment. On this record, we cannot conclude the definitions of “negligence” and “ordinary 
–30–

care,” which are taken directly from the Texas Pattern Jury Charges, are so ambiguous that the 

jury would have been confused as to the meaning of the liability question or the basis of Walmart’s 

alleged negligence.

At the charge conference, Walmart proposed the following language for inclusion in the 

jury instructions: “Wal-Mart was negligent if Bhola Gajurel was negligent while acting within the 

course and scope of his employment.” In support of this proposed instruction, Walmart argued 

that only Gajurel’s “conduct” should be at issue in Question 1, stating to the court, “for Question 

1, [the jury is] supposed to look at the world of Mr. Bhola” and that the instruction should not 

include language regarding “the way [Walmart] handled hiring and retaining or supervising or 

training [Gajurel].” The trial court overruled an objection by Bishop, and submitted Walmart’s 

proposed language to the jury.9 Walmart cannot now complain that Question 1 “did not advise 

jurors that Wal-Mart was negligent only if Gajurel was negligent.” See id.; C.M. Asfahl Agency v. 

Tensor, Inc., 135 S.W.3d 768, 785 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (“a party waives 

claimed error in the charge when that party proposes to submit a substantially similar charge to the 

jury”). See also TEX. R. APP. P. 33.1; TEX. R. CIV. P. 272, 274; Ledesma, 242 S.W.3d at 43. Even 

if the asserted error had not been waived, Question 1 required the jury to determine whether 

Gajurel “was negligent while acting within the course and scope of his employment.” Only 

Gajurel’s actions and conduct are addressed and at issue in Question 1, and the question properly 

 

9

In a post-submission filing, Walmart directed our attention to the Supreme Court’s opinion in Benge v. Williams, No. 14-1057, –S.W.3d–,

2018 WL 2374640 (Tex. May 25, 2018). Benge involved a health care liability claim in which the evidence showed multiple possible bases for the 

defendant’s negligence, including a basis not asserted by the plaintiff. The defendant requested the jury be instructed that it could not consider the 

basis not asserted by the plaintiff. The trial court refused the requested instruction. The Supreme Court concluded on appeal that because it could 

not determine whether the jury found liability on an improper basis, it was required to presume the error in denying the limiting instruction was 

harmful. Benge does not impact our analysis because Walmart received the instruction it requested.
–31–

provided only one theory – Gajurel’s actions and conduct – upon which Walmart could be found 

negligent.10

We find no abuse of discretion in the trial court’s instructions to the jury in Question 1 and 

related definitions, and resolve Walmart’s fourth issue against it.

Jury Argument

In its sixth issue, Walmart complains the judgment should be reversed because the trial 

court allowed Bishop’s trial counsel, Daryoush Toofanian, to make improper jury arguments that 

discussed theories of liability not submitted to the jury; characterized Walmart in a manner 

intended to inflame the passion of the jury; misled the jury as to the reason Walmart did not present 

evidence on the reasonableness and necessity of Bishop’s past medical expenses; and characterized 

conflicting sworn statements by Gajurel as constituting “perjury.”

Control over counsel during closing argument is within the sound discretion of the trial 

court and will not be disturbed on appeal without a clear showing of abuse of that discretion. Duke 

v. Jack in the Box E. Div., L.P., No. 14-15-00798-CV, 2017 WL 2561245, at *2 (Tex. App.—

Houston [14th Dist.] June 13, 2017, pet. denied) (mem. op.); Mandril v. Kasishke, 620 S.W.2d 

238, 247 (Tex. App.—Amarillo 1981, writ ref’d n.r.e.).

11

 Improper jury argument can be ‘curable’ 

or ‘incurable.’ See PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699, 721 (Tex. 

App.—Dallas 2011, pet. denied). A jury argument is curable when the harmful effect of the 

argument could be eliminated by a trial judge’s instruction to the jury to disregard the improper 

argument. Living Ctrs. of Tex., 256 S.W.3d at 680–81; Otis Elevator Co. v. Wood, 436 S.W.2d 

 

10

 Walmart points to a jury note sent to the trial court during deliberations inquiring whether Walmart was negligent only if Gajurel was 

negligent, in support of its argument that Question 1 permitted a determination Walmart was negligent for some act independent of the conduct of 

Gajurel. After receiving the note from the jury, the trial court indicated to the parties that it intended to direct the jury to read and follow the charge 

as written. Walmart responded “No objection. I think we might get the question again, but that’s fine.” The trial court then responded to the jury 

note by directing the jury to follow the charge as written. Because Walmart accepted and did not object to the court’s response, it waived any error 

on that basis. Tensor, 135 S.W.3d at 785.

11 See also Rothenberg v. Tucker, No. 05-92-00558-CV, 1993 WL 155878, at *8 (Tex. App.—Dallas May 10, 1993, no writ) (not designated 

for publication) (citing id.) (“Control over counsel during a trial rests within the sound discretion of the trial court, and it is uniformly held that a

reviewing court will not interfere unless it is clear that the trial court abused its discretion in this regard.”).
–32–

324, 333 (Tex. 1968); PopCap Games, 350 S.W.3d at 721; Clark v. Bres, 217 S.W.3d 501, 509 

(Tex. App.—Houston [14th Dist.] 2006, pet. denied). To preserve error on a jury argument that is 

improper but curable, the objecting party must, at the time the argument occurs, promptly object, 

obtain a ruling on its objection, and, if the objection is sustained, request an instruction that the 

jury disregard the improper remark. See Living Cntrs. of Texas, Inc. v. Penalver, 256 S.W.3d 678, 

680 (Tex. 2008) (per curiam) (“Error as to improper jury argument must ordinarily be preserved 

by a timely objection which is overruled.”); PopCap Games, 350 S.W.3d at 721 (to prevail on 

claim concerning improper jury argument, appellant must prove: (1) improper jury argument was 

made; (2) that was not invited or provoked; (3) that was preserved by proper objection or other 

predicate; and (4) that was not curable by instruction, prompt withdrawal of statement, or 

reprimand by court).

In rare cases, an improper argument is considered incurable, and a contemporaneous 

objection is not required. PopCap Games, 350 S.W.3d at 721. A complaint of incurable jury 

argument may be asserted and preserved in a motion for new trial. See TEX. R. CIV. P. 324(b)(5); 

Nguyen v. Myers, 442 S.W.3d 434, 442 (Tex. App.—Dallas 2013, no pet.). An improper jury 

argument is incurable when it is so inflammatory and prejudicial that its harmfulness could not be 

eliminated by an instruction to the jury to disregard it. Id. “The party claiming incurable harm 

must persuade the court that, based on the record as a whole, the offensive argument was so 

extreme that a ‘juror of ordinary intelligence could have been persuaded by that argument to agree 

to a verdict contrary to that to which he would have agreed but for such argument.’” Metrop. 

Transit Auth. v. McChristian, 449 S.W.3d 846, 855 (Tex. App.—Houston [14th Dist.] 2014, no 

pet.) (quoting Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009)). “Reversal of the judgment 

will follow where, after evaluation of the whole case, from voir dire to jury argument, it is shown 

that the probability that the improper argument caused harm is greater than the probability that the 
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verdict was grounded on the proper proceedings and evidence.” Williams v. Lavender, 797 S.W.2d 

410, 413 (Tex. App.—Fort Worth 1990, writ denied); see also Khan v. Chai Road, Inc., No. 05-

16-00346-CV, 2017 WL 3015727, at *2–3 (Tex. App.—Dallas July 17, 2017, no pet.) (mem. op.) 

(citing Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839—40 (Tex. 1979)). Incurable jury 

argument generally encompasses statements that “strike at the courts’ impartiality, equality, and 

fairness” because they “inflict damage beyond the parties and the individual case under 

consideration if not corrected.” Living Ctrs. of Tex., 256 S.W.3d at 681. Instances of incurable 

jury argument include appeals to racial prejudice; unsupported charges of perjury; unsupported, 

extreme, and personal attacks on opposing parties and witnesses; and baseless accusations of 

witness tampering. Metrop. Transit Auth., 449 S.W.3d at 855. “There are only rare instances 

of incurable harm from improper argument.” Standard Fire Ins. Co., 584 S.W.2d at 839.

While Walmart did not preserve its improper jury argument claims by making 

contemporaneous objections and obtaining rulings on the record at trial, it filed a motion for new 

trial that, excepting its complaint that Toofanian characterized Gajurel’s conflicting sworn 

statements as perjury, included its improper jury argument claims now asserted on appeal. We 

therefore must determine whether these closing arguments to the jury challenged in Walmart’s 

motion for new trial constituted “rare” instances of arguments that “strik[e] at the appearance of 

and the actual impartiality, equality, and fairness of justice rendered by courts,” causing incurable 

harm to the complaining party and judicial system. See Living Ctrs. of Tex., 256 S.W.3d at 681.

Walmart first complains that although the trial court submitted a single theory of 

negligence to the jury based upon vicarious liability for the conduct of Gajuirel, Toofanian argued 

facts supporting premises liability and negligent training theories in closing argument. 

Specifically, Walmart complains of the following statements in Toofanian’s closing argument:
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“[T]here was no rhyme and no reason as to how this section was organized.”

“We know that there was merchandise scattered on the floor.”

“[Walmart] didn’t tell us that it was a mess, so – you be the judge.”

“Tell me if there’s enough room between the shelves where somebody can . . . 

safely work back there.”

“We know that he was not given any specific instruction on restocking the area 

where he was. We know that nobody advised him on the dangers of falling 

merchandise. . .”

“The fact is that Walmart refuses to admit that if they did not put a sick and 

undertrained working (sic) in that zone of danger, he would not have knocked that 

box off the shelf.”

“Properly train your people. Don’t send this kid back there who’s sick, who – who 

doesn’t know what he’s doing in this war zone without the appropriate training.”

“[H]e was very untrained.”

Walmart does not contend these statements concerning Gajurel’s work stocking and shelving items 

in the clearance section were unsupported by evidence presented at trial. Rather, Walmart argues 

these are “facts that have no bearing on the legal issue the jury [was] to decide,” that is, whether 

Gajurel’s negligence caused the box to fall. The complained of statements bear on the negligence 

of Gajurel; however, even if Toofanian’s statements were improper, they did not rise to the level 

of incurable jury argument. They did not involve appeals to racial prejudice, extreme or personal 

attacks on the opposing party, or inflammatory epithets. Nor, “after evaluation of the whole case,” 

is it probable that any alleged harm caused by the statements was “greater than the probability that 

the verdict was grounded on the proper proceedings and evidence.” Williams, 797 S.W.2d at 413.

Next, Walmart complains that Toofanian’s use of the term “Walmart treatment,” referring 

to Walmart’s witness as a “hit man,” and characterization of Bishop as a “victim” were incurably 

inflammatory and prejudicial. Jury argument is designed to be persuasive and is not intrinsically 

improper as long as it is based on facts and issues raised by the evidence, and is not so

inflammatory as to cause the rendition of an improper verdict. See Standard Fire Ins., 584 S.W.2d 
–35–

at 838. “Hyperbole is also generally a permissible rhetorical technique in closing argument.” 

PopCap Games, 350 S.W.3d at 721. So long as the verdict was grounded on the record and 

evidence, argument designed to appeal to hatred or arouse sympathy for a party is not incurable. 

See Standard Fire Ins., 584 S.W.3d at 839–40. To the extent these statements by Toofanian were 

improper, they were not so inflammatory and incurably harmful as to “strik[e] at the appearance 

of and the actual impartiality, equality, and fairness of justice rendered by courts,” and did not 

constitute incurable jury argument. Living Ctrs. Of Tex., 256 S.W.3d at 681; see also Metro. 

Transit Auth., 449 S.W.3d at 855 (making reference to opposing counsel and asking “what kind of 

snake oil is he selling you” is not incurable jury argument).

Walmart also argues that Toofanian’s statement to the jury that Walmart did not present 

evidence on the reasonableness and necessity of Bishop’s medical expenses because “they know 

it’s expensive” was false and severely prejudicial. Counsel must confine argument strictly to the 

evidence and to the arguments of opposing counsel. TEX. R. CIV. P. 269(e). Toofanian’s 

misleading statement to the jury was improper because Walmart was precluded by the court from 

introducing evidence on the reasonableness and necessity of Bishop’s medical expenses. 

However, the statement was not incurably harmful. In determining whether an improper argument 

caused harm, an appellate court must look at the length of the argument, whether it was repeated 

or abandoned, whether there was cumulative error, and the probable effect of the argument on a 

material finding. Standard Fire Insurance Co., 584 S.W.2d at 839–40. Toofanian’s improper 

statement concerning Walmart’s failure to present evidence on the reasonableness and necessity 

of Bishop’s medical costs was not incurable because the statement was short and not repeated. 

Additionally, even if Toofanian had not made the misleading statement, the only evidence before 

the jury on the reasonableness and necessity of medical expenses was Bishop’s section 18.001 

affidavits, and “[t]he jury is not required to award a plaintiff the amount of damages established in 
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the affidavit[s] . . . .” Liang, 2016 WL 7163841, at *2. Thus, we cannot say the probability that 

the improper argument caused harm was greater than the probability that the verdict was grounded 

on the proper proceedings and evidence. Haryanto v. Saeed, 860 S.W.2d 913, 921 (Tex. App.—

Houston [14th Dist.] 1993, writ denied).

Finally, Walmart complains of Toofanian’s suggestion in closing arguments that Gajurel 

committed perjury when he stated twice in trial testimony that he did not know why the box fell 

from the shelf or see it fall, yet stated in his sworn discovery responses that he believed Bishop 

caused the box to fall by manipulating it. Walmart did not object to Toofanian’s statement at trial 

or in its motion for new trial, and thereby waived any alleged error concerning improper argument. 

However, even if Walmart’s objection had been preserved for appellate review, Toofanian’s 

statement was not incurable jury argument. While unsupported accusations of perjury may 

constitute incurable jury argument, Toofanian’s statements were not unsupported. Rather, the 

argument emananted directly from testimony and evidence presented at trial. Gajurel provided 

conflicting sworn statements on why the box fell, which were admitted as evidence for the jury’s 

consideration. Gajurel’s trial testimony confirmed that, a little more than a week prior to his 

testimony at trial, he provided the following information in response to Plaintiff’s First Set of 

Interrogatories, and understood he signed the responses under oath and that he “[had] to tell the 

truth”: 

Interrogatory No. 3: Please state those facts which you contend establish that the 

incident in question was caused solely and/or proximately by a new and 

independent cause, and described each such new and independent cause.

. . . . 

First Supplemental Answer: Defendant believes plaintiff manipulated the shelved 

merchandise is (sic) such a way as to cause the merchandise to become unstable 

and fall.
–37–

At trial, however, Gajurel – the only other person in the clearance section at the time the box fell 

and hit Bishop on the head – provided the following testimony:

Q: Now isn’t it true, Mr. Gajurel,that you didn’t see what happened in this incident?

A: No, I didn’t see. I came to know when she called me and showed this thing.

. . . . 

Q: And you don’t know how or why the box fell off the shelf?

A: She was the only person there, so I didn’t see how that – that box fell. 

Q: Okay. And it’s your test – and you’ve testified in this case that you don’t know 

how or why the box fell off the shelf?

A: Yes. . . . That’s correct.

Toofanian argued that Gajurel’s “story has changed significantly.” Additionally, Toofanian’s 

closing argument identified other conflicting trial testimony provided by Gajurel. Toofanian 

questioned how Gajurel could make an affirmative statement about Bishop’s “position in the 

[clearance] section” while claiming “that his back was turned to Mrs. Bishop while he was in the 

clearance section.” Toofanian’s suggestion that Gajurel’s conflicting statements regarding the 

cause of the box falling on Bishop’s head constituted perjury was not unsupported, but was 

reasonably based on or may be inferred from the evidence produced at trial. It therefore did not 

constitute incurable jury argument. See Duke, 2017 WL 2561245, at *5–6.

We conclude Toofanian’s jury arguments were not “so extreme that a ‘juror of ordinary 

intelligence could have been persuaded by that argument to agree to a verdict contrary to that to 

which he would have agreed but for such argument.’” Phillips, 288 S.W.3d at 883. We resolve 

Walmart’s sixth issue against it. 
–38–

We affirm the trial court’s judgment.

160749F.P05

/Robert M. Fillmore/

ROBERT M. FILLMORE

JUSTICE
–39–

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

WAL-MART STORES TEXAS, LLC, 

Appellant

No. 05-16-00749-CV V.

DAWN BISHOP, Appellee

On Appeal from the 162nd Judicial District 

Court, Dallas County, Texas

Trial Court Cause No. DC-14-00763.

Opinion delivered by Justice Fillmore, 

Justices Lang-Miers and Stoddart 

participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED.

It is ORDERED that appellee DAWN BISHOP recover her costs of this appeal from 

appellant WAL-MART STORES TEXAS, LLC.

Judgment entered this 19th day of June, 2018.