Opinion issued August 1, 2019

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-18-00180-CV

———————————

RANDALL SCOTT HULSEY, Appellant

V.

MILAD ATTALLA, Appellee

On Appeal from the 151st District Court

Harris County, Texas

Trial Court Case No. 2014-34758

MEMORANDUM OPINION

Appellee, Milad Attalla, brought a negligence suit against appellant, Randall 

Scott Hulsey, for damages arising from an auto collision. Hulsey appeals the trial 

court’s judgment against him, which was entered after a jury trial. In four issues, 
2

Hulsey contends that the evidence is factually insufficient to support causation, that 

the evidence is legally and factually insufficient to support the damages awarded, 

that the damages awarded are excessive, and that the trial court erred in admitting 

evidence of insurance.

We affirm.

Background

The Collision 

On the morning of February 23, 2013, Attalla was driving on Farm-to-Market 

Road 529 (“FM 529”) in Cypress. His son, J.A., was a passenger. At the intersection 

of FM 529 and Queenston Boulevard, Attalla stopped at a red signal light governing 

traffic in his eastbound direction. Traffic on the westbound side of FM 529 had a 

green signal light. Hulsey, who was traveling south on Queenston, approached the 

intersection and did not stop at the signal light, which was either stale yellow or red,

governing traffic in his direction. Hulsey’s Chevrolet Suburban was struck by a 

truck heading westbound on FM 529, then went over a median and collided with 

Attalla’s passenger car, striking it on the driver’s side and forcing it into another 

vehicle. Attalla suffered injuries and was taken by ambulance to a hospital. He was 

discharged later that day.

Hulsey testified at trial that, as he was traveling southbound on Queenston, 

approaching FM 529, he saw that “the light had turned yellow before the 
3

intersection.” He explained: “It was one of those situations where I had to make a 

split second decision whether to stop or go; and being the light traffic, I decided to 

move forward through the intersection.” He remembered seeing a truck coming 

from the left and trying to slam on his brakes. He noted that he was “knocked 

unconscious” by the force of the impact and that emergency personnel “had to cut 

[him] out of the vehicle.” He testified, “I believe that the light had just turned red 

when I was in the intersection,” and “I know that because that’s the last thing I saw 

before I got hit.” He asserted that he “didn’t enter [the intersection] on a red light.” 

Hulsey’s adult son, Brandon Hulsey, who was riding in the front passenger seat of 

the Suburban, testified that he told police officers at the scene, “My dad ran the red 

light.” 

The trial court admitted into evidence photographs of the damage to each 

vehicle and the police officer’s crash report from the scene.

Suit for Damages 

Attalla, individually and on behalf of J.A., sued Hulsey for negligence, 

alleging that Hulsey had failed to keep a proper lookout, to apply his brakes, to 

control his speed, to stop at the traffic light, and to avoid the collision. Attalla sought 

damages for future medical expenses, past and future physical pain and mental

anguish, and past and future physical impairment.1 

 

1 Attalla later abandoned his claim for past medical expenses.
4

At trial, Attalla testified that, before the collision, he suffered from “normal”

back pain from his work duties and from carrying around his children. In 2008, he 

went to his primary care physician, Lourice Abdelmelek, M.D., complaining of 

lower back pain and minor tingling in his legs. Dr. Abdelmelek ordered radiographs

and an MRI. Based on her findings, she recommended that Attalla take Tylenol, 

which Attalla noted relieved his pain. Attalla testified that Abdelmelek’s records 

from his 2012 visit accurately reflected that he did not have any neck or back pain

at that point. 

After the collision in 2013, however, Attalla’s quality of life “changed 

dramatically.” He testified that he is “constantly” in pain, takes medication three to 

four times daily, requires help with “everything” he does, and cannot perform his 

usual duties at work. In addition, he can no longer play with his children as he did 

prior to the collision. Attalla has a master’s degree in theology, and he used to 

perform the liturgies at his church and lead the congregation in hymns. Since the 

collision, however, he can no longer perform his duties at his church. Although 

Attalla underwent physical therapy, it did not help his pain. And, he underwent five 

or six epidural steroid injections, which he noted were very painful procedures. 

Attalla explained: “I’m trying my best to cope with medication and function as much 

as I can because I’m terrified of the surgery” that his orthopedic surgeon, Dr. Howard 

Cotler, had recommended. Dr. Cotler described the procedure to Attalla as being 
5

“like a C-section,” involving an incision through his abdomen and another through

his back, and involving the placement of a “cage” around his spine.

During Attalla’s testimony, as discussed in detail below, references were 

made to Hulsey’s automobile liability insurance.

Attalla’s wife, Maryana Attalla, testified that she and Attalla own a pharmacy. 

She is a pharmacist and Attalla manages their business. Before the collision, Attalla 

could perform the required work tasks, including regular heavy lifting and bending 

down. He was also the head deacon at their church, led liturgies lasting from three 

to four hours, and was head of the Sunday school services for high school students. 

He conducted training every Friday for an hour or two and went on retreats. During 

family vacations, he used to participate in activities such as walking for long 

distances, rafting, ziplining, and going on rides at amusement parks. At home, he 

played basketball with the children, went running with Maryana, and rode bicycles 

with the family. 

Since the collision, however, Attalla can no longer participate in these

activities as he had or at all. Just riding in a car is an issue. Attalla cannot perform 

any of his duties at the church because he cannot stand for the required length of 

time. Maryana noted that church was his “passion,” and he has had to resign. She 

noted that, during a recent family trip to Costa Rica, she and the children went 

ziplining, while Attalla had to stay behind. 
6

Maryana explained that, before the collision, Attalla experienced back pain, 

but it was not the disabling back pain he has suffered since. He is in constant pain. 

She and Attalla are “terrified” for him to undergo the recommended back surgery. 

However, the epidural steroid injections are no longer working and “someday he 

will have to.” 

Gabriela De La Torre testified that she has worked for the Attallas at their

pharmacy since 2011. She used to see Attalla every day, and he worked for a 

majority of each workday. She did not remember his ever having complained about 

back pain prior to the collision. Since the collision, however, Attalla has experienced

back pain and headaches and cannot perform tasks as he had previously, including 

heavy lifting or bending down.

Emad Mikhail Bishai, M.D., testifying as an expert for Attalla, stated that he 

was one of Attalla’s treating physicians for pain management after the collision. Dr. 

Bishai noted that he is board certified in pain management and that about 95 percent 

of his practice involves treating patients with spine issues. Bishai testified regarding 

his review of Attalla’s medical records, which the trial court admitted into evidence.

In 2008, several years before the collision, Attalla went to Dr. Abdelmelek 

complaining of lower back pain. The March 4, 2008 MRI report states that Attalla’s 

lumbar vertebrae were within normal limits, with the exception of the lumbosacral 

junction (“L5-S1”), which showed decreased “disc signal intensity,” with 
7

“significant space narrowing” and “an approximately 6mm risk posterolateral disc 

protrusion impinging upon the right L5 nerve root and significant narrowing of the 

right neural foramen.” Spondylosis2 was also noted at L5, but with “no significant 

spondylolisthesis”3and “no spinal stenosis.”4 Thus, Bishai explained, the space 

between Attalla’s L5-S1 vertebrae was too narrow, he had a bulging disc, and the

opening through which the nerves passed and traveled down to his legs was

impinged. Otherwise, Attalla’s vertebrae and discs were “normally aligned.”

Dr. Abdelmelek referred Attalla to an orthopedic surgeon, Kenneth Lee, 

M.D., who reviewed Attalla’s 2008 MRI films. In his April 3, 2008 report, Dr. K. 

Lee noted that Attalla had reported a three-month history of lower back pain and a 

two-year history of numbness and tingling in his legs. Dr. K. Lee concluded that the 

exam and diagnostic studies were consistent with “stable” L5-S1 spondylolisthesis. 

He also noted a “severe disk collapse at that level.” He prescribed medication and 

ordered an EMG, or nerve conduction study, of Attalla’s legs.

The emergency room records of Methodist Hospital West, where Attalla was 

taken by ambulance after the collision, reflected that he presented complaining of 

neck and back pain. The record of the exam on February 23, 2013 showed that 

 

2 Dr. Bishai testified that “spondylosis” refers to degenerative changes in the spine. 

3 Dr. Bishai testified that “spondylolisthesis” refers to slipping of vertebrae.

4 Dr. Bishai testified that spinal “stenosis” is a narrowing of the spaces within the 

spine, which can place pressure on the nerves in the area.
8

Attalla had “Grade 1 anterolisthesis at L5-S1 with likely bilateral spondylolysis.”5 

Bishai explained that the term “anterolisthesis” is a misalignment or displacement 

of one vertebra as compared to another. Bishai noted that this condition was not 

present on Attalla’s MRI taken in 2008, prior to the collision.

Dr. Bishai also reviewed the records of Henry S. Lee, M.D., who treated 

Attalla three months after the collision. An MRI taken on May 23, 2013 showed a 

“Grade 1 anterolisthesis and advanced spondylosis and annular disc bulging.” 

Dr. Bishai testified that Attalla did not have his present injury before the 

collision. He explained that Attalla has “Grade 1 anterolisthesis,” i.e., misalignment 

or displacement of one vertebra as compared to another, which is permanent, will 

not heal on its own, and likely to worsen over time. Bishai testified that, based on a 

“reasonable medical probability,” the collision “more likely than not” aggravated 

Attalla’s pre-existing condition, i.e., “caused his stable spondylolisthesis to become 

unstable.” Although Attalla had back problems in 2008, his condition was “stable.” 

As a result of the collision, however, Attalla’s back became “unstable,” in that there 

is “motion” in his vertebrae. Bishai explained that when a patient has offset 

vertebrae that are stable, the condition is usually medically managed. However, a 

patient with offset vertebrae that are unstable is at risk for cauda equina, a condition 

 

5 Drs. Bishai and Cotler testified that “spondylolysis” is a defect or fracture that can 

result in a vertebra slipping forward or backward over the bone below.
9

that can sever nerves and cause paralysis. Thus, “based on a reasonable medical 

probability,” Attalla will need to have surgery to fix his issues “at some point in his 

life.” Further, the pain management treatment that Bishai administered to Attalla 

will not manage his pain indefinitely and there is “no nonsurgical way to fix this.” 

Rather, “surgery is crucial in an unstable spine.” Dr. Bishai noted that the October 

17, 2013 radiographs of Attalla’s spine taken by his orthopedic surgeon, Dr. Howard 

Cotler, reflected that Attalla has “lytic spondylolisthesis” and three to seven

millimeters of movement in his spine, which Bishai characterized as “huge[ly] 

unstable.” And, Bishai noted that Cotler had recommended surgery.

During cross-examination, Bishai clarified that he had not reviewed Attalla’s

2008 MRI film. Rather, he reviewed the 2008 MRI report. He acknowledged that, 

although he had earlier testified, based on the report, that Attalla did not have 

spondylolisthesis prior to the collision, Dr. K. Lee had concluded that Attalla had 

spondylolisthesis in 2008, prior to the collision. 

Dr. Cotler, a board-certified orthopedic surgeon testifying as an expert for 

Attalla, stated that he examined Attalla on October 17, 2013 for neck and back pain 

that Attalla attributed to the collision. Cotler’s examination revealed that Attalla had 

a “painful range of motion of his low[er] back or lumbar spine.” Neurologically, he 

was “intact,” but he had some tingling in both legs. Cotler diagnosed Attalla with 

“traumatic L5-S1 spondylolisthesis,” meaning that there was a “fracture of the pars
10

interarticularis area of the L5 vertebral body that allowed the L5 vertebral body, or 

the block of bone, to separate from the posterior elements.” He testified that, “based 

on a reasonable medical probability,” “something caused the break in the bone; and 

that’s trauma.” And, because of the separation, there was a “slippage of one block 

of bone on another,” or “spondylolisthesis.” Attalla had a disc herniation at L5-S1

and a “weight bearing intolerance” or “vertical instability,” which made it painful 

for him to sit or put weight on his spine. Attalla quantified his neck pain as 10 out 

of 10, his leg pain as 8 out of 10, and his back pain as 7 out of 10. 

Dr. Cotler noted that Attalla’s March 4, 2008 MRI showed that he had 

spondylolysis and a disc lesion. He opined that Attalla had a “chronic condition that 

potentially could have had an acute situation superimposed on it.” Cotler advised 

Attalla that he could continue symptomatic care or undergo surgery. Cotler 

explained that surgery is appropriate when a patient has severe incapacitating pain 

that interferes with his quality of his life and nonoperative care has failed. Attalla 

had previously undergone two epidural steroid injections and physical therapy. 

Cotler noted that, Attalla had a “structural abnormality,” i.e., a fracture and slippage 

of bone, and that “structural abnormalities require structural solutions.” 

Dr. Cotler described the surgical procedure to be performed as a global fusion 

of a section of Attalla’s spine. Cotler testified that the expenses for the surgery 

would total $225,000 and that Attalla would require six to twelve weeks of physical 
11

therapy. Cotler noted that Attalla may later require additional surgeries and would 

“probably” have residual pain in the future. Cotler testified that his opinions were 

based on a “reasonable medical probability.”

At the close of trial, Attalla requested damages in the amount of $225,000 for 

future medical expenses; $50,000 for past physical pain and mental anguish;

$200,000 for future physical pain and mental anguish; $50,000 for past physical 

impairment; and $200,000 for future physical impairment. After the jury found that 

Hulsey’s negligence proximately caused the occurrence in question, it awarded 

Attalla damages in the amount of $225,000 for future medical expenses; $25,000 for 

past physical pain and mental anguish; $175,000 for future physical pain and mental 

anguish; $25,000 for past physical impairment; and $200,000 for future physical 

impairment.

6

 The trial court rendered judgment in accordance with the verdict.

Hulsey filed a motion for new trial, challenging the factual sufficiency of the 

evidence supporting the jury’s findings as to causation and damages, and asserting

that the trial court erred by admitting evidence of Hulsey’s liability insurance. The 

trial court denied the motion for new trial.

 

6 The trial court also asked the jury what sum of money would compensate J.A. for 

his physical pain and mental anguish, if any, resulting from the collision. The jury 

answered $0.00. Attalla does not challenge this finding in this appeal. 
12

Sufficiency of the Evidence

In his second issue, Hulsey argues that the evidence is factually insufficient

to support the jury’s finding that the collision proximately caused Attalla’s injuries. 

In his first issue, Hulsey argues that the evidence is legally and factually insufficient 

to support the jury award of damages for future medical expenses, future physical 

pain and mental anguish, and future impairment. Alternatively, Hulsey argues that 

the amount of damages awarded is excessive. 

Standard of Review

When an appellant challenges the legal sufficiency of the evidence supporting 

an adverse finding on an issue on which he did not have the burden of proof, he must 

demonstrate that no evidence supports the finding. Graham Cent. Station, Inc. v. 

Pena, 442 S.W.3d 261, 263 (Tex. 2014). We will sustain a legal sufficiency or 

“no-evidence” challenge if the record shows any one of the following: (1) a complete 

absence of evidence of a vital fact, (2) rules of law or evidence bar the court from 

giving weight to the only evidence offered to prove a vital fact, (3) the evidence 

offered to prove a vital fact is no more than a scintilla, or (4) the evidence establishes 

conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 

810 (Tex. 2005). In conducting a legal-sufficiency review, we consider the evidence 

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

supports it. Id. at 822. 
13

If there is more than a scintilla of evidence to support the challenged finding, 

we must uphold it. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, 

Inc., 960 S.W.2d 41, 48 (Tex. 1998). “[W]hen the evidence offered to prove a vital 

fact is so weak as to do no more than create a mere surmise or suspicion of its 

existence, the evidence is no more than a scintilla and, in legal effect, is no 

evidence.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (internal 

quotations omitted). However, if the evidence at trial would enable reasonable and 

fair-minded people to differ in their conclusions, then jurors must be allowed to do 

so. City of Keller, 168 S.W.3d at 822. “A reviewing court cannot substitute its 

judgment for that of the trier-of-fact, so long as the evidence falls within th[e] zone 

of reasonable disagreement.” Id.

When an appellant challenges the factual sufficiency of the evidence 

supporting an adverse finding on an issue on which he did not have the burden of 

proof, he must demonstrate that the adverse finding is so contrary to the 

overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. 

Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Levine v. Steve Scharn Custom 

Homes, Inc., 448 S.W.3d 637, 653 (Tex. App.—Houston [1st Dist.] 2014, pet. 

denied). In conducting a factual-sufficiency review, we examine, consider, and 

weigh all of the evidence that supports or contradicts the fact finder’s determination.

See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Plas-Tex, Inc. v. 
14

U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We note that the jury is the sole 

judge of the witnesses’ credibility, and a reviewing court may not impose its own 

opinion to the contrary. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 

757, 761 (Tex. 2003). When presented with conflicting testimony, the fact finder 

may believe one witness and disbelieve others, and it may resolve inconsistencies in 

the testimony of any witness. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 

1986). We set aside the verdict only if the evidence is so weak or the finding is so 

against the great weight and preponderance of the evidence that it is clearly wrong 

or manifestly unjust. See Dow Chem. Co., 46 S.W.3d at 242; Pool v. Ford Motor 

Co., 715 S.W.2d 629, 635 (Tex. 1986).

A. Causation7

In his second issue, Hulsey argues that the evidence is factually insufficient 

to support the jury’s finding as to causation because the evidence does not link the 

alleged negligence to the alleged injuries. He asserts that Dr. Cotler testified that 

Attalla had spondylolisthesis prior to the collision. And, Dr. Bishai’s testimony that 

 

7 Generally, when a party presents multiple grounds for reversal of a judgment on 

appeal, an appellate court should first address those points that would afford the 

party the greatest relief, i.e., rendition points before remand points. See TEX. R.

APP. P. 43.3; Bradleys’ Elec., Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 

(Tex. 1999). Here, Hulsey challenges only the factual sufficiency of the evidence 

supporting liability and challenges the legal and factual sufficiency of the evidence 

supporting damages. Because we overrule each of Hulsey’s challenges to the 

sufficiency of the evidence, we discuss liability prior to discussing damages for the 

sake of clarity. 
15

the collision caused Attalla’s injuries, although couched in terms of “reasonable 

medical probability,” was conjectural because the condition seen on the 2013 MRI 

could have developed before the collision.

A negligence cause of action has three elements: (1) a legal duty owed by one 

person to another, (2) a breach of that duty, and (3) damages proximately caused by 

the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). “Proximate 

cause requires both cause in fact and foreseeability.” Id. Foreseeability exists if the 

actor, as a person of ordinary intelligence, should have anticipated the dangers his 

negligent act creates for others. Id. “Foreseeability does not require that a person 

anticipate the precise manner in which injury will occur once he has created a 

dangerous situation through his negligence.” Travis v. City of Mesquite, 830 S.W.2d 

94, 98 (Tex. 1992). “Cause in fact means that the defendant’s act or omission was 

a substantial factor in bringing about the injury which would not otherwise have 

occurred.” Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995).

To establish causation in a personal injury suit, a plaintiff must prove that the 

defendant’s conduct caused an event and that the event caused the plaintiff to suffer 

compensable injuries. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.

1995); Benson v. Chalk, 536 S.W.3d 886, 902 (Tex. App.—Houston [1st Dist.] 2017,

pet. denied). A jury may decide the required causal nexus between the event sued 

upon and the plaintiff’s injuries when (1) general experience and common sense will 
16

enable a layperson fairly to determine the causal nexus; (2) expert testimony 

establishes a traceable chain of causation from injuries back to the event; or (3) 

expert testimony shows a probable causal nexus. LMC Complete Auto., Inc. v. 

Burke, 229 S.W.3d 469, 478 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). 

Causation cannot be established by mere conjecture, guess, or speculation. McClure 

v. Allied Stores of Tex., Inc., 608 S.W.2d 901, 903 (Tex. 1980). However, proximate 

cause may be established by direct or circumstantial evidence and the reasonable 

inferences that may be drawn from that evidence. Id. at 903–04. 

When a plaintiff claims damages for a medical condition, the cause of which 

is not within the common knowledge and experience of jurors, expert testimony is 

necessary to show that the defendant’s conduct caused that condition. JLG Trucking, 

LLC v. Garza, 466 S.W.3d 157, 162 (Tex. 2015). A plaintiff is not required to show 

that the defendant’s negligent act or omission was “the sole cause of [his] injury,” 

only that it was a “substantial factor in bringing about the injury.” Bustamante v. 

Ponte, 529 S.W.3d 447, 457 (Tex. 2017). Further, “a medical causation expert need 

not disprov[e] or discredit[] every possible cause other than the one espoused by 

him.” Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 218 (Tex. 2010) (internal 

quotations omitted). “Trial evidence generally includes evidence of the preoccurrence condition of the injured person, circumstances surrounding the 

occurrence, and the course of the injured person’s physical condition and progress 
17

after the occurrence.” Guevara v. Ferrer, 247 S.W.3d 662, 666–67 (Tex. 2007). 

“Evidence of an event followed closely by manifestation of or treatment for 

conditions which did not appear before the event raises suspicion that the event at 

issue caused the conditions.” Id. at 668. The expert must base his opinion on facts 

or data perceived or reviewed during or before trial, and his opinion must rest on

“reasonable medical probability.” LMC Complete Auto., 229 S.W.3d at 478.

Reasonable probability is determined by the substance and context of the opinion 

and does not turn on semantics or on the use of a particular term or phrase. Id.

Here, Attalla sought to prove through the expert testimony of Dr. Bishai and 

Dr. Cotler that the collision, which occurred on February 23, 2013, caused him to 

suffer injuries to his back. 

Dr. Bishai testified that he is board certified in pain management and that 

about 95 percent of his practice involves treating patients with spine issues. Bishai 

testified regarding his review of Attalla’s medical records and from his own 

examination and treatment of Attalla after the collision.

Dr. Bishai testified that Attalla’s March 4, 2008 MRI report states that his 

lumbar vertebrae were within normal limits, with the exception of L5-S1, which 

showed decreased “disc signal intensity,” with “significant space narrowing” and 

“an approximately 6mm risk posterolateral disc protrusion impinging upon the right 

L5 nerve root and significant narrowing of the right neural foramen.” Spondylosis 
18

was also noted at L5, but with “no significant spondylolisthesis” and “no spinal 

stenosis.”8 Thus, Bishai explained, the space between Attalla’s L5-S1 vertebrae was 

too narrow, he had a bulging disc, and the opening through which the nerves passed 

and traveled down to his legs was impinged and causing pain. Otherwise, Attalla’s 

vertebrae and discs were “normally aligned.” Further, Dr. K. Lee, in his April 3, 

2008 report, opined that the exam and diagnostic studies of Attalla were consistent 

with “stable” L5-S1 spondylolisthesis, although he noted a “severe disk collapse at 

that level.” 

The emergency room records of Methodist Hospital West, where Attalla was 

taken by ambulance after the collision, reflect that he presented complaining of neck 

and back pain. The record of the exam on February 23, 2013 showed that Attalla 

had “Grade 1 anterolisthesis at L5-S1 with likely bilateral spondylolysis.”9 Thus, 

after the collision, Attalla’s vertebrae were misaligned or displaced. Bishai noted 

that this condition was not present on Attalla’s 2008 MRI, prior to the collision. 

And, the records of Dr. S. Lee, who treated Attalla three months after the collision, 

 

8 Again, Dr. Bishai testified that “spondylosis” refers to degenerative changes in the 

spine; “spondylolisthesis” refers to slipping of vertebrae; and “stenosis” is a 

narrowing of the spaces within the spine, which can place pressure on the nerves in 

the area.

9 Drs. Bishai and Cotler testified that “spondylolysis” is a defect or fracture that can 

result in a vertebra slipping forward or backward over the bone below.
19

reflected that an MRI taken on May 23, 2013 showed a “Grade 1 anterolisthesis and 

advanced spondylosis and annular disc bulging.” 

Dr. Bishai testified that, based on a “reasonable medical probability,” the 

collision “more likely than not” aggravated Attalla’s pre-existing condition, i.e., 

“caused his stable spondylolisthesis to become unstable.” Although Attalla had back 

problems in 2008, his condition was “stable.” As a result of the collision, however, 

Attalla’s back became “unstable,” in that there is “motion” in his vertebrae. Bishai 

noted that the October 17, 2013 radiographs of Attalla’s spine taken by Dr. Cotler 

reflect that Attalla has “lytic spondylolisthesis” and movement in his spine from 7 

mm to 3 mm, which Bishai characterized as “huge[ly] unstable.” Bishai explained 

that Attalla has “Grade 1 anterolisthesis,” which is permanent. He noted that a

patient with offset vertebrae that are unstable is at risk for cauda equina, a condition 

that can sever nerves and cause paralysis. 

Dr. Cotler, a board-certified orthopedic surgeon, testified that he examined 

Attalla on October 17, 2013 for neck and back pain that Attalla attributed to the 

collision. Cotler diagnosed Attalla with “traumatic L5-S1 spondylolisthesis,” which 

he explained meant that there was a “fracture of the pars interarticularis area of the 

L5 vertebral body that allowed the L5 vertebral body, or the block of bone, to

separate from the posterior elements.” He testified that, “based on a reasonable 

medical probability,” “something caused the break in the bone; and that’s trauma.” 
20

And, because of the separation, there was a “slippage of one block of bone on 

another,” or “spondylolisthesis.” Cotler also diagnosed Attalla with a disc herniation 

at L5-S1. Cotler noted that Attalla’s March 4, 2008 MRI showed that he had 

spondylolysis and a disc lesion. He opined that Attalla had a “chronic condition that 

potentially could have had an acute situation superimposed on it.” 

Thus, Drs. Bishai and Cotler each testified based on Attalla’s medical records,

on the results of Attalla’s pre- and post-collision MRIs and radiographs, and on their 

examinations of Attalla. Bishai testified that, before the collision, Attalla’s vertebrae 

and discs were “normally aligned.” And, after the collision, his vertebrae were 

misaligned. Bishai testified that, based on a “reasonable medical probability,” the 

collision “more likely than not” aggravated Attalla’s pre-existing condition, i.e., 

“caused his stable spondylolisthesis to become unstable.” Cotler opined that the 

post-collision condition of Attalla’s L5–S1 vertebrae was suggestive of “trauma.”

During cross-examination, Dr. Bishai acknowledged that, although he had 

earlier testified, based on the 2008 MRI report, that Attalla did not have 

spondylolisthesis before the collision, Dr. K. Lee, an orthopedic surgeon who 

reviewed the 2008 MRI film, had concluded that Attalla had spondylolisthesis in 

2008, prior to the collision. When presented with conflicting testimony, the jury

may believe one witness and disbelieve others, and it may resolve inconsistencies in 

the testimony of any witness. See McGalliard, 722 S.W.2d at 697. 
21

Based on the evidence of the temporal proximity of the onset of Attalla’s 

symptoms, i.e., the debilitating pain in his back that began after the collision, 

together with the testimony of Drs. Cotler and Bishai about the pre- and 

post-collision MRI results, their examinations of Attalla, and their experience as a

board-certified orthopedic surgeon and board-certified pain-management specialist, 

respectively, the jury could have reasonably inferred that Attalla’s injuries were 

proximately caused by the collision and not simply by degeneration, the only other 

possible cause for his injuries suggested by the record. See Guevara, 247 S.W.3d at 

666–67; Williams v. Crawford, No. 03-16-00696-CV, 2018 WL 1124306, at *6 

(Tex. App.—Austin Mar. 2, 2018, no pet.) (mem. op.) (holding temporal proximity 

of onset of patient’s symptoms, together with physician’s testimony that results from 

patient’s MRI “showed that the herniation at L5–S1 was ‘acute,’ meaning recent, 

and suggestive of trauma,” and his experience as an orthopedic surgeon, constituted

sufficiently reliable basis from which doctor could opine that herniations were, “in 

reasonable medical probability, caused by the accident” and not by degeneration, as 

suggested); see also Transcon. Ins. Co., 330 S.W.3d at 218 (concluding that 

causation expert reasonably ruled out possibility that patient died solely from other 

conditions based on objective evidence of patient’s good health before injury, his 

contraction of infection at site shortly afterward, and effect of infection on patient’s 

health). 
22

We conclude that the evidence supporting the jury’s finding as to causation is 

not so weak as to render it clearly wrong and manifestly unjust. See Cain, 709 

S.W.2d at 176. We hold that factually sufficient evidence supports the jury’s 

finding. 

Accordingly, we overrule Hulsey’s second issue.

B. Damages

In his first issue, Hulsey argues that the evidence is legally and factually 

insufficient to support the jury’s award of damages for future medical expenses, 

future physical pain and mental anguish, and future physical impairment. 

Damages are measured by the question and instruction given in the court’s 

charge. Equistar Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d 864, 868 (Tex. 

2007). Here, the trial court asked the jury to determine an amount that would 

reasonably compensate Attalla for any future medical expenses, future pain and 

mental anguish, and future physical impairment the jury found. The trial court

specifically instructed the jury not to include any amount for any condition not 

resulting from the collision and not to include any amount for any condition existing 

before the collision, “except to the extent, if any, that such other condition was 

aggravated by any injuries that resulted from the [collision].” The trial court further 

instructed the jury to consider each element separately and not to include damages 

for one element in any other element. Unless the record demonstrates otherwise, we
23

must presume that the jury followed the instructions given in the charge. See Golden 

Eagle Archery, Inc., 116 S.W.3d at 771.

1. Future Medical Expenses

Hulsey argues that the evidence is legally insufficient to support the jury’s 

award of $225,000 for future medical expenses because “there was no evidence that 

surgery would be necessary in the future within ‘all reasonable probability’” and 

“there was no other component of the award.” Attalla further argues that the 

evidence supporting the damages is factually insufficient because the evidence 

showing a reasonable probability that medical expenses will be incurred in the 

future, i.e., the testimony of Drs. Cotler and Bishai, is not entitled to any weight.

To recover future medical expenses, a plaintiff is required to show a 

“reasonable probability” that medical expenses resulting from the injury will be 

incurred in the future and the reasonable costs of such care. Antonov v. Walters, 168 

S.W.3d 901, 908 (Tex. App.—Fort Worth 2005, pet. denied). “Texas follows the 

‘reasonable probability’ rule for damages for future medical expenses.” Id.; see also 

Fisher v. Coastal Transp. Co., 230 S.W.2d 522, 523 (Tex. 1950) (holding that 

“reasonable probability rule” simply means that evidence must be presented that 

damages would “reasonably and probably result from the injury sustained”). While 

the preferred practice is to establish future medical expenses through expert medical 

testimony, such testimony is not required. Antonov, 168 S.W.3d at 908. A jury may 
24

award future medical expenses based on the nature of the plaintiff’s injuries, medical 

care rendered to a plaintiff before trial, and the condition of the plaintiff at the time 

of trial. Id. An award of future medical expenses lies within the jury’s sound 

discretion, and “appellate courts are particularly reluctant to disturb a jury’s award 

of these damages.” Id. An award of future damages in a personal injury case is 

always speculative to some degree. Pipgras v. Hart, 832 S.W.2d 360, 365 (Tex. 

App.—Fort Worth 1992, writ denied). 

Dr. Cotler testified that he diagnosed Attalla with “traumatic L5-S1 

spondylolisthesis,” which he explained meant that there was a “fracture of the pars

interarticularis area of the L5 vertebral body that allowed the L5 vertebral body, or 

the block of bone, to separate from the posterior elements.” He explained that, 

“based on a reasonable medical probability,” “something caused the break in the 

bone; and that’s trauma.” Attalla has a “weight bearing intolerance” or “vertical 

instability,” which made it painful for him to sit or put weight on his spine, and a 

“painful range of motion of his low[er] back or lumbar spine.” Cotler explained that 

surgery is appropriate when a patient has severe incapacitating pain that interferes 

with the quality of his life and nonoperative care has failed. 

Dr. Cotler further testified that Attalla had quantified his neck pain as 10 out 

of 10, his leg pain as 8 out of 10, and his back pain as 7 out of 10. And, Attalla had 

previously undergone epidural steroid injections and physical therapy. Cotler noted 
25

that, Attalla has a “structural abnormality,” i.e., a fracture and slippage of bone, and 

that “structural abnormalities require structural solutions.” Cotler testified that the 

expenses for surgery would total $225,000 and that Attalla would require six to 

twelve weeks of physical therapy. Attalla may later require additional surgeries and 

would “probably” have residual pain in the future. Cotler testified that each of his 

opinions was based on a “reasonable medical probability.” 

Dr. Bishai testified that Attalla has “Grade 1 anterolisthesis,” which is 

permanent, will not heal on its own, and is likely to worsen over time. The pain 

management treatment that Bishai has administered to Attalla will not manage his 

pain indefinitely and there is “no nonsurgical way to fix this.” Rather, “surgery is 

crucial.” Attalla has “unstable” offset vertebrae and is at risk for cauda equina, a 

condition that can sever nerves and cause paralysis. Thus, “based on a reasonable 

medical probability,” Attalla will need to have surgery to fix his issues “at some 

point in his life.” 

Attalla testified that he is “constantly” in pain, takes medication three to four 

times daily, requires assistance with “everything” he does, and cannot perform his 

usual duties at work. Although Attalla underwent physical therapy, it did not help 

his pain. He underwent five or six epidural steroid injections, which he noted were 

very painful procedures. Attalla explained: “I’m trying my best to cope with 

medication and function as much as I can because I’m terrified of the surgery” that 
26

was recommended. Attalla’s wife, Maryana, testified that Attalla is suffering from 

disabling back pain and is in constant pain. She testified that the epidural steroid 

injections are no longer working and “someday he will have to” have the surgery.

Based on the foregoing, the jury could have reasonably inferred that Attalla

will have surgery in the future. See McElroy v. Fitts, 876 S.W.2d 190, 198 (Tex.

App.—El Paso 1994, writ dism’d by agr.) (holding uncertainty about future surgery 

did not defeat factual sufficiency); Strahan v. Davis, 872 S.W.2d 828, 832–33 (Tex.

App.—Waco 1994, writ denied) (holding possibility of future surgery did not defeat 

factual sufficiency). In addition, the jury could have reasonably found that $225,000

would be the cost of Attalla’s future care based on Dr. Cotler’s estimation of the cost 

of surgery. 

Although Dr. Cotler also testified that Attalla, having not yet had the surgery, 

could have chosen to forego surgery and live with the pain, it was within the province 

of the jury to resolve any conflicts in the testimony. See McGalliard, 722 S.W.2d at 

697 (holding that jury resolves conflicting testimony).

Hulsey asserts that Dr. Bishai was “not qualified to give an opinion” as to the 

“medical necessity” of surgery and thus his testimony did not constitute “proper 

expert testimony.” Again, while the preferred practice is to establish future medical 

expenses through expert medical testimony, expert testimony is not required. 

Antonov, 168 S.W.3d at 908; see also Bill Miller Bar-B-Q Enters., Ltd. v. Gonzales, 
27

No. 04-04-00747-CV, 2005 WL 2176079, at *2 (Tex. App.—San Antonio Aug. 24, 

2005, pet. denied) (mem. op.) (“No precise evidence is required,” and “[t]estimony 

of a ‘reasonable medical probability’ by a medical expert is not a requisite to 

recovery [of] future medical expenses.”). Rather, a jury may award future medical 

expenses based on the nature of the plaintiff’s injuries, medical care rendered to a 

plaintiff before trial, and the condition of the plaintiff at the time of trial. Antonov, 

168 S.W.3d at 908. 

We conclude that there is more than a scintilla of evidence to support the 

jury’s award of damages in the amount of $225,000 for future medical expenses. See 

City of Keller, 168 S.W.3d at 810; Antonov, 168 S.W.3d at 908 (“Anything more 

than a scintilla of evidence is legally sufficient to support the finding.”). We further 

conclude that the evidence supporting the jury’s award is not so weak as to render 

the award clearly wrong and manifestly unjust. See Cain, 709 S.W.2d at 176. 

Accordingly, we hold that legally and factually sufficient evidence supports the 

jury’s award of $225,000 in future medical expenses.

We overrule this portion of Hulsey’s first issue.

2. Future Physical Pain and Mental Anguish

Hulsey next argues that the evidence is legally and factually insufficient to 

support the jury’s award of $175,000 for future physical pain and mental anguish 

damages. 
28

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

as . . . 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.). Once the existence of some pain 

has been established, “there is no objective way to measure the adequacy of the 

amount awarded as compensation.” Id. “The amounts of damages awarded for pain 

and suffering . . . are necessarily speculative and each case must be judged on its 

own facts.” Id. Physical pain and suffering may be established by circumstantial 

evidence. Id. “The duration of the pain . . . is an important consideration.” Id. “[I]t

is particularly within the jury’s province to resolve these matters and determine the 

amounts attributable thereto.” Id.

To support an award of mental anguish, a party must present either direct 

evidence of the nature, duration, and severity of his mental anguish, thereby 

establishing a substantial interruption in his daily routine, or circumstantial evidence 

of a high degree of mental pain and distress that is greater in degree than mere worry, 

anxiety, vexation, embarrassment, or anger. Parkway Co. v. Woodruff, 901 S.W.2d 

434, 444 (Tex. 1995); Thomas v. Uzoka, 290 S.W.3d 437, 455 (Tex. App.—Houston 

[14th Dist.] 2009, pet. denied) (claimant must demonstrate “high degree of mental 

suffering”). Further, evidence of the existence of compensable mental anguish is 

not enough; there must also be some evidence to justify the amount awarded. Saenz 
29

v. Fid. Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996). While the 

impossibility of an exact evaluation of mental anguish requires that fact-finders be 

given a measure of discretion in finding damages, fact-finders cannot simply pick a 

number. Id. They must find an amount that “would fairly and reasonably 

compensate” for the injury. Id.

Here, the trial court’s charge instructed the jury that the term “mental anguish”

means “impl[ying] a relatively high degree of mental pain and distress. It is more 

than mere disappointment, anger, resentment or embarrassment, although it may 

include all of these.”

Attalla testified that, since the collision, he is “constantly” in pain, takes 

medication three to four times daily, and requires assistance with “everything” he 

does. Attalla explained: “I’m trying my best to cope with medication and function 

as much as I can because I’m terrified of the surgery.” Attalla noted that his 

orthopedic surgeon, Dr. Cotler had described the procedure as “like a C-section,” 

involving an incision through his abdomen and another through his back, and placing 

his spine in a “cage.” The jury had the benefit of observing Attalla as he testified 

and could assess his emotional demeanor; this afforded some insight into the mental 

anguish he was suffering. See Plasencia v. Burton, 440 S.W.3d 139, 149 (Tex. 

App.—Houston [14th Dist.] 2013, no pet.). Attalla’s wife, Maryana, also testified 
30

that Attalla has disabling back pain and is in constant pain. And, he is “terrified” 

about undergoing the surgery. 

Dr. Bishai testified that Attalla’s “Grade 1 anterolisthesis” is a permanent 

condition that will cause him “permanent lifelong pain,” regardless of whether he 

has the surgery. Dr. Cotler testified, “based on a reasonable medical probability,”

that even if Attalla undergoes the recommended surgery, he will “probably” have 

residual pain in the future. He may also have stiffness and residual nerve damage. 

From the evidence, the jury could have reasonably inferred that Attalla will 

suffer physical pain and mental anguish in the future. See Figueroa, 318 S.W.3d at 

62–63; see, e.g., Flynn v. Racicot, No. 09-11-00607-CV, 2013 WL 476756, at *6 

(Tex. App.—Beaumont Feb. 7, 2013, no pet.) (mem. op.) (“Evidence of continuing 

pain may support an award of future physical pain and future mental anguish.”); 

Wal–Mart Stores, Inc. v. Ortiz, No. 13-98-518-CV, 2000 WL 35729388, at *7–8 

(Tex. App.—Corpus Christi Aug. 3, 2000, pet. denied) (not designated for 

publication) (holding that evidence that plaintiff continued to have leg pain and 

trouble walking, among other things, held factually sufficient to support awards for 

future physical pain and mental anguish). Because damages for mental anguish are 

“unliquidated and incapable of precise mathematical calculation, the [fact-finder] is 

given significant discretion in fixing the amount of the award,” as long as it has some 

evidentiary support. Uzoka, 290 S.W.3d at 454. 
31

We conclude that the testimony of Attalla, Maryana, and Drs. Bishai and 

Cotler constitutes more than a scintilla of evidence supporting the jury’s award of 

$175,000 for Attalla’s future pain and mental anguish. See City of Keller, 168 

S.W.3d at 810; Antonov, 168 S.W.3d at 908 (“Anything more than a scintilla of 

evidence is legally sufficient to support the finding.”). We further conclude that the 

jury’s damages award for future physical pain and mental anguish is not so against 

the great weight and preponderance of the evidence that it is manifestly unjust. See 

Cain, 709 S.W.2d at 176. Accordingly, we hold that the evidence is legally and

factually sufficient to support the jury’s award of $175,000 for future physical pain 

and mental anguish. 

We overrule this portion of Hulsey’s first issue.

3. Future Physical Impairment

Hulsey further argues that the evidence is legally and factually insufficient to 

support the jury’s award of $200,000 for future impairment because the award is 

repetitive of the jury’s award for physical pain and mental anguish. Hulsey asserts 

that Attalla presented no evidence of a “separate and distinct loss.”

“Physical impairment, sometimes called loss of enjoyment of life, 

encompasses the loss of the injured party’s former lifestyle.” Gen. Motors Corp. v. 

Burry, 203 S.W.3d 514, 554 (Tex. App.—Fort Worth 2006, pet. denied); see Doctor 

v. Pardue, 186 S.W.3d 4, 18 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). A 
32

plaintiff generally must show that his physical-impairment damages are substantial 

and extend beyond any pain, suffering, mental anguish, lost wages or diminished 

earning capacity. Burry, 203 S.W.3d at 555; see Golden Eagle Archery, Inc., 116 

S.W.3d at 772 (claimant “should not be compensated more than once for the same 

elements of loss or injury”). The process of awarding damages for amorphous, 

discretionary injuries such as physical impairment is inherently difficult because the 

alleged injury is a subjective, unliquidated, nonpecuniary loss. Ten Hagen 

Excavating, Inc. v. Castro-Lopez, 503 S.W.3d 463, 486 (Tex. App.—Dallas 2016, 

pet. denied). Accordingly, the trier of fact is given discretion when determining such 

damages. Id.

Here, the trial court’s charge defined the term “physical impairment” as “the 

restriction of activities caused by the injury.” It noted that “[t]he effect of any 

physical impairment must be substantial and extend beyond any pain, suffering,

mental anguish, lost wages or diminished earning capacity.”

Attalla testified that, after the collision in 2013, his quality of life “changed 

dramatically.” He requires assistance with “everything” he does. He has a master’s 

degree in theology and used to perform services and lead his congregation in hymns. 

Since the collision, he can no longer perform his church duties. He can no longer 

play with his children or with the children at his Sunday school as he did prior to the 

collision. 
33

Maryana testified that Attalla was the head deacon at their church, led liturgies 

lasting from three to four hours, and was head of the Sunday school services for high 

school students. He conducted training every Friday for an hour or two and went on 

retreats. During family vacations, he used to participate in activities such as walking 

for long distances, rafting, ziplining, and going on rides at amusement parks. At 

home, he played basketball with the children, went running with Maryana, and rode 

bicycles with the family. Since the collision, however, Attalla can no longer 

participate in these activities as he had or at all. Just riding in a car is an issue. 

Attalla cannot perform any of his duties at the church because he cannot stand long 

enough. He also cannot attend liturgy because he cannot sit long enough. Attalla 

has to constantly shift his position while he sits. Church was his “passion,” and he

has had to resign. She noted that, during a recent family trip to Costa Rica, she and 

the children went ziplining, while Attalla had to stay behind. 

Attalla’s complaints, including his loss of the ability to enjoy church, time 

with his family, and recreational activities, extend beyond pain and suffering and 

support recovery for future impairment. See Tri-State Motor Transit Co. v. Nicar, 

765 S.W.2d 486, 493 (Tex. App.—Houston [14th Dist.] 1989, no pet.) (holding that 

testimony showing that prior to accident plaintiff was active and athletic person who 

regularly participated in sports, and after his injuries was unable to enjoy recreational 

sports activities, extended beyond pain and suffering and supported recovery for 
34

future physical impairment); Allen v. Whisenhunt, 603 S.W.2d 242, 244 (Tex. Civ.

App.—Houston [14th Dist.] 1980, writ dism’d) (holding that evidence of plaintiff’s 

inability to play basketball or engage in other strenuous tasks for his own benefit or 

enjoyment was sufficient to support award of damages for future physical 

impairment).

From the evidence, the jury could have reasonably inferred that Attalla will 

suffer physical impairment in the future. See, e.g., PNS Stores, Inc. v. Munguia, 484 

S.W.3d 503, 519–20 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (holding 

evidence legally and factually sufficient to support the jury’s award of $420,000 for 

future physical impairment); Marquette Transp. Co. Gulf–Inland, LLC v. Jackson, 

No. 01–10–01025–CV, 2012 WL 1454476, at *13–14 (Tex. App.—Houston [1st 

Dist.] Apr. 26, 2012, no pet.) (mem op.) (holding evidence plaintiff “permanently 

limited” and no longer “able to participate in the same activities that he pursued 

before he was injured, including everything from standing in order to cook and clean 

to playing basketball” sufficient to support jury’s award of $500,000 for future 

physical impairment); Figueroa, 318 S.W.3d at 64–65 (upholding award for past 

and future physical impairment for plaintiff with dental injuries because he 

subsequently had to limit number and types of food he ate and “could not eat some 

of the foods that he loved” for several years).
35

We conclude that the testimony of Attalla and Maryana constitutes more than 

a scintilla of evidence supporting the jury’s award of damages to Attalla’s for future 

impairment. See City of Keller, 168 S.W.3d at 810; Antonov, 168 S.W.3d at 908 

(“Anything more than a scintilla of evidence is legally sufficient to support the 

finding.”). We further conclude that the jury’s award to Attalla for future impairment

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

manifestly unjust. See Cain, 709 S.W.2d at 176. Accordingly, we hold that the 

evidence is legally and factually sufficient to support the jury’s award of $200,000 

for future physical impairment. 

We overrule the remaining portion of Hulsey’s first issue.

Excessive Damages

In his fourth issue, Hulsey complains that the jury’s damages findings are 

excessive and require a remittitur or new trial. He asserts that the damages awarded 

for future medical expenses are based on a future surgery, which was “only a 

possible treatment option.” And, the jury awarded damages for future pain and

mental anguish and for physical impairment “as if Attalla would receive no benefit 

from the future surgery.”

We review an excessive-damages complaint for factual sufficiency of the 

evidence, using the guidelines identified above. See Mar. Overseas Corp. v. Ellis, 

971 S.W.2d 402, 406 (Tex. 1998). Having concluded above that factually sufficient 
36

evidence supports the jury’s awards for future medical expenses, future physical pain 

and mental anguish, and future physical impairment, we conclude that the damages 

awards are not excessive. See PNS Stores, Inc., 484 S.W.3d at 519–20; Casas v. 

Paradez, 267 S.W.3d 170, 191 (Tex. App.—San Antonio 2008, pet. denied) (holding 

jury’s verdict was not excessive because factually sufficient evidence supported 

jury’s verdict). Because there was evidence to account for the jury’s verdict, we 

cannot say that the damages awarded were “so flagrantly excessive that [they] cannot 

be accounted for on any other ground.” PNS Stores, Inc., 484 S.W.3d at 519–20.

We overrule Hulsey’s fourth issue.

Evidence of Insurance

In his third issue, Hulsey argues that the trial court erred by admitting 

“evidence of the existence of [his liability] insurance.” See TEX. R. EVID. 411. He 

asserts that such evidence led to the rendition of an improper and excessive verdict 

and that “[h]arm is presumed.” Attalla argues that the trial court did not err because 

Hulsey “opened the door” to such testimony and also “interjected the issue of 

insurance into the trial.” Attalla asserts that Hulsey failed to preserve error and that, 

“other than vaguely alleging . . . that harm is ‘presumed,’ Hulsey points to nothing 

in the record . . . to meet his burden” to demonstrate that the alleged error probably 

led to the rendition of an improper judgment. 
37

Standard of Review

The decision to admit or exclude evidence lies within the sound discretion of 

the trial court. Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 

(Tex. 2007); Benson v. Chalk, 536 S.W.3d 886, 894 (Tex. App.—Houston [1st Dist.] 

2017, pet. denied). A trial court abuses its discretion if it acts in an arbitrary or 

unreasonable manner or without reference to guiding rules or principles. Bowie 

Mem. Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). We will uphold a trial court’s 

evidentiary ruling if any legitimate ground supports the ruling, even if the ground 

was not raised in the trial court. Hooper v. Chittaluru, 222 S.W.3d 103, 107 (Tex. 

App.—Houston [14th Dist.] 2006, pet. denied). To demonstrate reversible error in 

the admission of evidence, an appellant must show (1) that the trial court’s ruling 

was erroneous and (2) that the error was calculated to cause, and probably did cause,

the rendition of an improper judgment. Benson, 536 S.W.3d at 904; see also TEX.

R. APP. P. 44.1(a); U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 136 (Tex. 2012). 

In determining whether erroneously admitted evidence probably resulted in 

the rendition of an improper judgment, we examine “the entire case from voir dire 

to closing argument, considering the evidence as a whole, the strength or weakness 

of the case, and the verdict.” U-Haul Int’l, Inc., 380 S.W.3d at 136. We look to the 

role that the evidence played in the context of the trial and the efforts made by 

counsel to emphasize the erroneous evidence, as well as whether there was contrary 
38

evidence that the improperly admitted evidence was calculated to overcome. Id. 

“Typically, a successful challenge to a trial court’s evidentiary rulings requires the 

complaining party to demonstrate that the judgment turns on the particular evidence 

excluded or admitted.” Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 

(Tex. 2001). 

Legal Principles

Texas Rule of Evidence 411 provides:

Evidence that a person was or was not insured against liability is not 

admissible to prove whether the person acted negligently or otherwise 

wrongfully. But the court may admit this evidence for another purpose, 

such as proving a witness’s bias or prejudice or, if disputed, proving 

agency, ownership, or control.

TEX. R. EVID. 411. Rule 411 prohibits parties from inquiring about the existence of 

insurance to show that the insured was negligent or otherwise at fault to avoid 

improper inferences that one who has insurance is more likely than others to be 

negligent because he is protected by insurance and that an insurer could afford to 

pay any judgment against its insured. See AccuBanc Mortg. Corp. v. Drummonds, 

938 S.W.2d 135, 151 (Tex. App.—Fort Worth 1996, writ denied) (noting that jury 

is “more apt to render a judgment against a defendant, and for a larger amount, if it 

knows that the defendant is protected by insurance”). Thus, generally, it is error for 

insurance coverage of either party to be mentioned by the other party during the trial 

of a personal injury cause of action. Taylor v. Am. Fabritech, Inc., 132 S.W.3d 613, 
39

625 (Tex. App.—Houston [14th Dist.] 2004, pet. denied). If insurance is mentioned, 

the trial court may either instruct the jury not to consider the improper statement or 

declare a mistrial. Id.

Otherwise inadmissible evidence may be offered, however, if a party opens 

the door to its admission by offering evidence of a similar character. Sw. Elec. 

Power Co. v. Burlington N. R.R., 966 S.W.2d 467, 473 (Tex. 1998) (“A party on 

appeal should not be heard to complain of the admission of improper evidence 

offered by the other side, when he, himself, introduced the same evidence or 

evidence of a similar character.” (quoting McInnes v. Yamaha Motor Corp., 673 

S.W.2d 185, 188 (Tex. 1984)). And, otherwise inadmissible evidence may be 

admitted to correct a false impression left by the questioning of a witness. 

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000). Evidence 

of collateral matters may also be admitted if a party opens the door by injecting such 

matters into the lawsuit. See Bay Area Healthcare Grp., Ltd. v. McShane, 239 

S.W.3d 231, 234 (Tex. 2007). “Once a party opens the door . . . the opposing party 

may offer rebuttal evidence on the collateral issue.” Id. 

In Canyon Vista Property Owner’s Association v. Laubach, the court of 

appeals held that the trial court did not err in admitting evidence of insurance because 

the defendant had opened the door to the evidence. No. 03-11-00404-CV, 2014 WL 

411646, at *9 (Tex. App.—Austin Jan. 31, 2014, no pet.) (mem. op.). There, the 
40

defendant condominium association testified during direct examination that, 

although it carried liability insurance, the plaintiff unit-owner’s asserted damages

would be borne by other unit owners. Id. at *7. During cross-examination, the 

plaintiff attempted to “further probe” the insurance issue, and the defendant objected 

on the ground that the evidence was inadmissible. Id. at *8. At a bench conference, 

the plaintiff argued that the defendant had opened the door by telling the jury that 

the damages would be borne exclusively by other unit owners. Id. After the trial 

court overruled the objection, plaintiff’s counsel resumed questioning about the 

association’s liability coverage. Id. 

On appeal in Canyon Vista, the court held that the defendant had opened the 

door to being cross-examined about its insurance by expressly testifying during 

direct that it carried insurance. Id. at *9. And, once the door was opened, the 

plaintiff was entitled to present evidence of the defendant’s insurance to correct any 

misimpression left with the jury that the damages would fall to other unit owners. 

Id. The court further held that, even if the trial court had erred in admitting evidence 

of insurance, such error was harmless because the association was allowed to rebut 

such evidence with evidence that the insurer had already denied its claim; the trial 

court’s charge to the jury contained a limiting instruction; and the jury’s findings as 

to liability and damages were sufficiently supported by the evidence. Id. The court 
41

noted that the jury did not award the plaintiff the full amount of the damages he 

sought and that the “insurance policy limits were never disclosed to the jury.” Id.

Analysis

Here, during defense counsel’s cross-examination of Attalla, the following 

colloquy occurred:

[Hulsey’s counsel]: So isn’t it true that you had numbness and

tingling in your legs for two years prior to April 

the 3rd, 2008?

[Attalla]: Very minor, yes.

[Hulsey’s counsel]: Yes, okay. Isn’t it true that it wasn’t until you 

and your lawyer discovered that we discovered 

these prior medical records showing these back 

treatment and injuries and problems that you 

decided to come here today and admit the truth?

[Attalla]: It’s not true.

[Hulsey’s counsel]: So up until this point where you realized we

knew about these prior injuries and prior medical

condition, you wanted Mr. Hulsey to pay for that 

prior back problem, didn’t you?

[Attalla]: Didn’t ask him anything.

[Hulsey’s counsel]: But in this lawsuit you’re asking Mr. Hulsey to 

pay for damage he did not cause, aren’t you?

[Attalla]: Absolutely not.

(Emphasis added.) At a bench conference, Attalla asserted that this line of 

questioning had “opened the door to insurance.” And, the trial court concluded, 

“Okay. I’ll let you play with that. It’s your—it’s your appeal.”
42

Subsequently, during re-direct examination of Attalla, Attalla’s counsel 

expressly raised the matter of Hulsey’s insurance before the jury, as follows: 

[Attalla’s counsel]: So, [Attalla], remember when the defense lawyer

asked if we were trying to make Mr. Hulsey pay 

for your injuries?

[Attalla]: Yes.

[Attalla’s counsel]: We’re not trying to make Mr. Hulsey pay at all. 

We’re trying to make his insurance company 

pay, true?

[Hulsey’s counsel]: Objection, Your Honor.

[Trial Court]: I ruled on that over here. Overruled. I think you 

opened the door.

[Attalla’s counsel]: We’re not trying to take a dime from Mr. Hulsey. 

We want his insurance company to pay for what 

he had in the car crash, true?

[Attalla]: True.

(Emphasis added.) As noted, the trial court overruled Hulsey’s objection10 and 

concluded that he had opened the door to evidence of his insurance.

Next, during re-cross examination of Attalla, Hulsey’s counsel raised the fact 

of his insurance and the amount of his coverage:

[Hulsey’s counsel]: Do you understand you’ve sued Mr. Hulsey for 

a million dollars—for up to a million dollars, 

correct?

[Attalla]: Yes.

[Hulsey’s counsel]: You understand he has nowhere near that

coverage in the insurance, correct?

 

10 Later, Hulsey moved for a mistrial on the ground that he had not “open[ed] the door” 

to evidence of his insurance. And, the trial court denied the motion for mistrial.
43

. . . .

[Attalla]: I don’t know.

During re-direct examination of Attalla, Attalla’s counsel attempted to rebut 

Hulsey’s assertion that he lacked sufficient coverage:

[Attalla’s counsel]: Do you understand that he has unlimited

coverage now because they had the opportunity 

to settle—

[Hulsey’s counsel]: Objection, Your Honor. They’re—this is—

[Trial Court]: Okay. Never mind. We’ll leave it there. Any 

other questions about the . . . .

[Attalla’s counsel]: Oh, yes—

[Trial Court]: —unrelated to insurance?

[Attalla’s counsel]: The amount of insurance is not true. It’s 

unlimited.

[Trial Court]: I understand your argument.

[Attalla’s counsel]: Thank you.

Although Hulsey objected, he did not obtain a ruling from the trial court. See TEX.

R. APP. P. 33.1(a) (providing that preservation of error requires objection and ruling). 

Later, during cross-examination of Hulsey, Attalla’s counsel asked why 

Hulsey’s family was present during trial, noting: “None of your money is at risk; 

it’s your insurance company.” Although Hulsey objected, the trial court did not rule 

on his objection. See id. 

Finally, during closing argument, Attalla’s counsel emphasized the insurance 

matter as follows:
44

[Attalla’s counsel]: . . . . [Y]ou have the power to give Mr. Hulsey a

pass. You do. You can say for whatever reason, 

you know what, Mr. Hulsey, these safety rules 

apply to everybody except you. We’re going to 

give you a pass. Maybe because you brought 

your family down here every single day of the 

trial even though he doesn’t have one single 

dime of his own money at risk.

[Hulsey’s counsel]: Objection, Your Honor. Making an improper 

jury argument.

[Trial Court]: We’ve already covered that. That’s in evidence. 

So the objection’s overruled.

[Attalla’s counsel]: The evidence is that – and you guys got to look 

at something that a lot of juries don’t get, that 

he’s covered by insurance. Insurance companies 

like to hold individuals up like this, like a human 

shield to try to protect themselves and make 

juries think that it’s really him who’s paying the 

money, but it’s not.

[Hulsey’s counsel]: Objection, Your Honor. Again, making an 

improper jury argument.

. . . . 

[Trial Court]: The objection’s overruled.

. . . .

[Attalla’s counsel]: We don’t want you to give one single dime more 

than you would otherwise give because he’s 

covered by insurance. That would not be right. 

That would not be a pristine verdict. We just 

don’t want you to give one single dollar less 

because they act like he’s not covered by 

insurance.

[Hulsey’s counsel]: Objection, Your Honor.

[Attalla’s counsel]: That would not be a pristine verdict.

[Trial Court]: All right. Sustained. Move on, please.
45

(Emphasis added.) As noted, Hulsey objected on the ground of improper jury 

argument, and the trial court overruled his first two objections. After the trial court 

sustained his third objection, Hulsey did not request a limiting instruction or timely 

move for a mistrial. See In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 

760 (Tex. 2013); Hoover v. Barker, 507 S.W.2d 299, 306 (Tex. Civ. App.—Austin 

1974, writ ref’d n.r.e.) (holding that motion for mistrial raised in motion for new trial 

was untimely).

Even were we to conclude that the trial court erred in finding that Hulsey 

opened the door to evidence of his insurance and erred in allowing the insurance 

matter to be raised before the jury, Hulsey has not demonstrated that it probably 

caused the rendition of an improper judgment in this case. See TEX. R. APP. P.

44.1(a)(1); U-Haul Int’l, Inc., 380 S.W.3d at 136. 

Hulsey asserts on appeal, without citation to authority, that “[h]arm is 

presumed.” The injection of insurance into a trial does not always require reversal; 

rather, it is incumbent upon the complaining party to demonstrate harm. United Cab 

Co., Inc. v. Mason, 775 S.W.2d 783, 786 (Tex. App.—Houston [1st Dist.] 1989, writ 

denied) (“Even if the injection of insurance into a trial is always error, that alone 

does not require reversal contrary to defendants’ assertion that it is reversible error 

per se.”); see also Michaelski v. Wright, 444 S.W.3d 83, 92 (Tex. App.—Houston 

[1st Dist.] 2014, no pet.) (holding that, notwithstanding repeated injections of 
46

insurance into case, harm not shown); Canyon Vista Prop. Owner’s Ass’n, 2014 WL 

411646, at *9 (holding that, even if trial court erred in admitting evidence of 

insurance, harm not shown). In Dennis v. Hulse, the Texas Supreme Court 

responded to a similar argument as follows: 

Under our practice an appellate court is not authorized to reverse merely 

because the record discloses some error that is reasonably calculated to 

cause a miscarriage of justice. The party appealing must also show that 

it probably did cause the rendition of an improper judgment in the case.

362 S.W.2d 308, 309 (Tex. 1962). Thus, Hulsey has the burden demonstrate that 

the error probably caused the rendition of an improper judgment in this case. See id.

In his brief, Hulsey simply ties his harm to the sufficiency points previously 

raised and addressed by stating: 

Here, the consequences of the district court’s evidentiary ruling . . . was 

to skew the evidence on the question of the cause-in-fact element of tort 

liability and the nature and extent of alleged future damages, all of 

which Hulsey now challenges for insufficient evidence.

Having examined the evidence and concluded above that the jury’s findings 

as to causation and damages are supported by legally and factually sufficient 

evidence, we conclude that Hulsey has not demonstrated that the interjection of his 

insurance probably caused the rendition of an improper judgment in this case. See 

Michaelski, 444 S.W.3d at 92 (concluding, in similar context, that, notwithstanding 

that “all parties made repeated reference[s]” to insurance at trial, harm not shown, 

in part, because evidence was legally and factually sufficient to support jury’s 
47

verdict); Canyon Vista Prop. Owner’s Ass’n, 2014 WL 411646, at *9 (holding harm 

from admitting evidence of insurance not shown, in part, because legally and 

factually sufficient evidence supported jury’s findings as to liability and damages); 

see also U-Haul Int’l, Inc., 380 S.W.3d at 136 (considering “evidence as a whole, 

the strength or weakness of the case, and the verdict”). Importantly, Hulsey has not 

demonstrated that the judgment turned on the evidence of his insurance. See 

Interstate Northborough P’ship, 66 S.W.3d at 220 (“Typically, a successful 

challenge to a trial court’s evidentiary rulings requires the complaining party to 

demonstrate that the judgment turns on the particular evidence . . . admitted.”). 

Notably, the jury awarded Attalla less than the full amount of the damages he sought. 

Canyon Vista Prop. Owner’s Ass’n, 2014 WL 411646, at *9 (holding harm from 

admission of insurance evidence not shown, in part, because jury awarded less than 

full amount of damages sought). 

Considering the entire case, as we must, we further note that Attalla’s only 

mention of insurance during voir dire came after a veniremember stated that he had 

previously worked as an insurance adjuster. See U-Haul Int’l, Inc., 380 S.W.3d at 

136 (examining “the entire case from voir dire to closing argument”). Attalla’s 

counsel then asked veniremembers whether anyone else had “ever been an insurance 

adjuster,” and Hulsey did not object. See TEX.R. APP. P. 33.1(a); Haryanto v. Saeed, 

860 S.W.2d 913, 918 (Tex. App.—Houston [14th Dist.] 1993, writ denied) 
48

(requiring objection to preserve error with respect to statements and questions by 

appellee’s counsel during voir dire). In addition, as discussed above, the record 

shows that Hulsey himself also referenced his insurance in front of the jury, went 

further and argued about the amount of his coverage, and subsequently allowed 

Attalla to make additional references to insurance without preserving error on the 

ground he raises on appeal.11 See TEX. R. APP. P. 33.1(a); Volkswagen of Am., Inc. 

v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004) (holding that error in admission of 

testimony deemed harmless and waived if objecting party subsequently allows same 

or similar evidence to be introduced); see, e.g., Michaelski, 444 S.W.3d at 91 

(holding no harm shown, in part, because “all parties made repeated reference” to 

insurance at trial, appellants failed to preserve error with respect to all references, 

 

11 Although, during Attalla’s closing argument, Hulsey preserved error with respect to 

his objections on the ground of improper jury argument, he expressly presents an 

evidentiary point on appeal, under Texas Rule of Evidence 411, and not an 

improper-jury-argument point. See Wohlfhart v. Holloway, 172 S.W.3d 630, 639–

40 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (holding that party’s 

challenge on appeal must be consistent with his objection at trial); see, e.g., Taylor 

v. Am. Fabritech, Inc., 132 S.W.3d 613, 625 (Tex. App.—Houston [14th Dist.] 

2004, pet. denied) (addressing evidentiary point under Rule 411 and issue asserting 

improper jury argument as separate issues with distinct elements). Further, an 

appellant asserting an issue of improper jury argument must show, inter alia, 

incurable harm. Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex. 1979). 

A claim of “incurable jury argument” must be raised in motion for new trial if not 

otherwise ruled on in the trial court. See TEX. R. CIV. P. 324(b)(5). Hulsey does 

not argue incurable harm on appeal, and the record does not reflect that he did so in 

the trial court. See Nguyen v. Myers, 442 S.W.3d 434, 439–42 (Tex. App.—Dallas 

2013, no pet.) (addressing evidentiary point under Rule of Evidence 411 and holding 

claim of improper jury argument waived).
49

and appellants’ references were more prejudicial than those of appellees); Gates v. 

Quality Pontiac-Buick-GMC, Inc., No. C14-86-933-CV, 1987 WL 18079, at *2–3 

(Tex. App.—Houston [14th Dist.] 1987, writ denied) (not designated for 

publication) (holding no harm shown, in part, because “appellant’s own attorney 

assisted in raising the issue of insurance” and both parties interjected issue into trial); 

Kenneth H. Hughes Interests, Inc. v. Westrup, 879 S.W.2d 229, 238 (Tex. App.—

Houston [1st Dist.] 1994, writ denied) (holding no harm shown from evidence of 

insurance because appellants’ own counsel “elicited some of this evidence” and 

party may not complain on appeal that evidence was improperly admitted when party 

itself elicited same or similar evidence). 

Although we do not condone Attalla’s counsel’s statements in his closing 

argument regarding Hulsey’s insurer, we do not conclude that the trial court’s 

evidentiary ruling, the issue that Hulsey presents in this appeal, caused reversible 

error in this case. See TEX. R. APP. P. 44.1; see, e.g., Alvarez, v. Driscoll Found. 

Children’s Hosp., No. 13-98-152-CV, 2000 WL 35729205, at *3 (Tex. App.—

Corpus Christi Dec. 7, 2000, pet. denied) (not designated for publication) (“While 

we do not condone defense counsel’s tactics, . . . we do not believe that the 

interjection of insurance caused reversible error in this case.”).
50

We hold that even if the trial court erred by allowing the matter of Hulsey’s 

insurance to be interjected at trial, Hulsey has not demonstrated that the error 

probably caused the rendition of an improper judgment in this case. 

We overrule Hulsey’s third issue.

Conclusion

We affirm the trial court’s judgment. 

Sherry Radack

Chief Justice 

Panel consists of Chief Justice Radack and Justices Higley and Hightower.