1 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assig nment. NO. 07-05-0235-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL E MAY 24, 2006

______________________________ BITUMINOUS CASUALTY CORPORATION, APPELLAN T V. MONA CLEVELAND, APPELLEE

_________________________________ FROM THE 237 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2003- 523,220; HONORAB LE SAM ME DINA, JU DGE

_______________________________ Before REAVIS and HANCOCK, JJ. and BOYD , S.J. 1
OPINION Appealing from a judgment based upon a jury verdict that appellee Mona Cleveland
recove r $81 6,493.69on her u nderinsu red motori st claim, appella nt Bitumi nous Cas ualty Corporation presents eight issues. Bituminous contends:2 Aguilar’s vehicle was insured for liability li mits of $20,000 and the vehicle and horse

trailer were insured by Bituminous up to $1,000,000 UM/UIM limits. Cleveland recovered 2 (1) a “treating” physician who is provided information and paid by counsel for reviewing such inf

ormation in advan ce of t estifying at trial when called by counsel a is “reta ined” ex pert; (2 ) the trial court erred in admitting medical testimony of causation by the “treatin g” expert who changed his opinion after Cleveland’s counsel provided the designated “treating” physician additional information an d rec ords from other treating physicians and the deposition and expert report of Bituminous’s retained expert witness and was paid $5 ,000; (3) does Tex

as Rule of Civil Procedu re 193.6 re quire exclusion of evidence when the offerin g party knew that the opinion of the witness had materially changed, requiring discovery supplementation such that the change in the testimony at trial that would not constitute a surprise? (4) did the trial court err in denying Bituminous’s motion for mistrial, based on Dr. George’s changed but undisclosed expert opi nions being offered? (5) did the trial court abuse its discretion in admitting medical b ills under affidavitwhen the same were not filed timely in accordance with Chapter 18, Civil Practice & Remedies Code? (6) is thereany leg ally or f a ctually su fficient evidence to support the jury’s verdict after Dr. George’s testimony is properly stricken from the record? (7) did the t r ial court err in submitting a jury issue on future medical when there was no evidence that plaintiff would, in reasonable medical probability, requirefuture medica l trea tment for injuries alleged proximately caused by th e accide nt of April 26, 2003, and when there was no evidence about the amount any future medical treatment would cost? and (8) did the trial court err in submitting a jury issue on future lost wages when the only testimony about past and future earni ngs was offered b y plaint iff, and when Bituminous‘s objection to that testimony was su stained? On April 26, 2003, while driving a pickup and towing a h orse trailer, Cleveland was injured when an automobile dr iven by Paul Ag uilar str uck the re ar-end of the trail er. 2$20,000 on the policy limits a nd PIP claim and recovered $2,500 on her own P IP coverage. 3 Following receiptof the jury verdict awarding $999,000, pursuant to section 41.0105 of the Texas Civil Practice and Remedies Code, find ing that Cleveland did not pay all the medical expenses, the trial court reduced the award by $139,531.68, and making other deductions, rendered judgment that Cleveland recover $816,493.69.
Since sever al of the issues and contentions presented by B ituminous will be reviewed for abuse

of discre tion stan dard, we first notethe appropriate standard for such review.
Standard of Review Abuse of Discretion
A trial court abu se s its discretion if it acts in an arbitrary or unreasonabl e manner withoutreference

to any gu iding ru les or pr inciple s. Downer v . Aquamar ine Opera tors, Inc., 701 S.W.2d 23 8, 241-42 (Tex. 19 85). There is no abuse , howeve r, simply because a trial court may de cide a matter wi thin its discreti on differ ently tha n an app ellate court. Id. at 242. When rev iewing matters committed to the trial court’s discretion, a court of appeals may not substitute its own judgment for that of the trial court, thus insulating the trial court’s decision from appellate second guess ing. See Flores v. Fourth Court of Appeals, 777 S.W.2d 38 , 41 (Tex . 1989).4

Issues one, two, three, and four are presented by Bituminous under Topic I, entitled “Dr. George’s

Testimon y Should have Be en Excl uded.” We will consider the issues jointly. Although Cleveland filed suit on August 4, 2 003, the deposition of her treat ing physician, Dr. George, was not taken until Novem ber 2004. Among other things, during his deposition, when asked if in rea sonable m edical probability, any of his findings cou ld have bee n caused by the accident of April 26, 2003 , he answered, “No, sir.” Further , h e testi fied that Cleveland would have eventually required surgery for her back problems, eve n absentthe accident of April 26, 2003. At trial, soon after counsel commenc e d his examination of Dr. George, it became apparent that Dr. George had changed his opinion. His deposi t ion, however, had not been supplemented. This revelation prompted Bituminous’s counsel to condu ct voir direexamination, move for mistrial, and object to the testimony because the doctor’s deposition had not been supplemented per Texas Rule of Civil Proce dure 193.6. The cou rse of eve nts and ru lings fo llowing the objec tion were somewhatsimilar to the even ts and issues presented in Koko Motel, Inc. v. Mayo, 91 S.W.3d 41, 49-51 (Tex.App .–Ama rillo 20 02, pet. d enied), w herein we held th e trial court did not err in denying a motion for mistrial and t ha t an expert’s failure to supplement discover y was not

reversib le error. Here, after hea ring argu ments and objectio ns from co unsel fo r both parties, the trial
c ourt announced that, in its opinion, the doctor’s dep osition should h ave bee n supplemented. Howeve r, instea d of gra nting a m istrial, the trial court, sua spon te ,3 No error i s assign ed by ei ther party to the re cess orde red by the trial co urt.
4 According to Bitumi nous’s b rief, recess was take n mid-afte rnoon an d by the t ime Cleveland retrieve d the doc uments fro m Dr. Ge o rge’s off ice and delivere d copies to Bituminous, it was e vening. Essentially, Bituminous had the next morning to review all the documents provided by Dr. George after his deposition. 5 declared a 24-hour recess and directed Cl ev eland’s counsel to furnish to Bituminous’s counsel the documents and records necessary to supplement the doctor’s dep osi tion

. 3 Trial resumed at approximately 2:00 p.m. the following day. 4 Considering the i ssues presented by both parties and the posture of the case, because the doctor’s deposition was supplemented during the trial recess, we need not addresswhether the treating physician became a retained expert for purposes of supplementation of discovery per Rules 1 93.6, 195.3, and 1 95.6 of

the Texas Rules of Civil Proced ure, or otherwise, when he reviewed records of other ph ysicians and waspaid $5 ,000 by C levelan d’s coun sel.
The trial court is vested with great discretion o v er the conduct of the trial, and this includes its interven tion to “m aintain control i n the cou rtroom, to expedite the trial , and to preventwhat it co nsiders t o be a wa ste of tim e.” See Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 20 01). Further, we re view the denial of a mistrial by an a buse of discretion standard

. See Schlafly v. Schlaf ly, 33 S.W.3d 863, 868 (Tex.App.–Houston [14th Dist.] 20 00, pet. d enied). Similarl y, the abu se of dis cretion s tandard applies in reviewing t he ruling of the tria l court re garding a discov ery quest ion. See Cire v. Cummings, 134 S.W.3d 83 5, 838-39(Tex. 20 04); Downer , 701 S.W.2d at 241. Considering that Dr

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George’s deposition was supplemented during the recess, we conclude the trial court’s action and denial of the motion for mistrial did not constitute an abuse of discretion.
Moreo v er, even though the deposition was not suppl emented before trial, nevertheless, the documents and records were provi ded to counsel during the recess befor e Dr . George’s cross-examination resumed. Even if the trial court erred i n ordering supplementation of the records during recess and in denying Bituminous’s motion for mistrial, under

the record presented here, we conclude the action of the trial court was not such a denial of Bituminous’s rights as was reasonably calculated to cause and probably did cause th e renditi on of an improper judgment. See Tex. R. App. P. 44.1. Accordingly, issues one, two, three, and four are overruled. Our disposition of these issues p retermits consideration of Bituminous’s sixth issue. Byits seve nth issue , Bitumin ous conte nds the e vidence was lega lly insu fficient to support the jury’s award of $15,000 for future medical expenses. We disagree. When an appellant

attacks the legal sufficiency of an adverse finding on which he did not have the burden of proof, we must review the entire record for any probative evidence which, when viewed in itsmost favorable light, supports the adverse finding. LeeLewis Const., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001); Raw Hid e Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 276 (Tex.App.–Amarillo 1988, writ den ied). If there is more than a scintil la of evidence to support the verdict, we uphold the judgment. Lenz v. Lenz, 797

S.W.3d 10, 19 (T ex. 2002 ). We must disr egard al l eviden ce and i nferences to the contrary. Id.
Texas follows the "reasonable probability" rule for future da mages for persona l injuries. Rosenbo om Mach. & Tool, In c. v. Ma chala, 995 S.W.2d 817, 828 (Tex.App.–Houston [1st Dist.] 1999, pet. denied); Hughett v. Dwyre, 624 S.W.2d 401, 405 (Tex.App.–Amarillo 1981, wr it ref'd n .r. e.). Th us, in order to recover future medical expenses, a plai ntif

f is required to show there is a reasonable probability that medical expenses resulting from the injury will be incurred in the future and t he reason able cos ts of such car

e. Rosenboom , 995 S.W. 2d at 828 . It is wi thin the ju ry's sound discr etion to determine what amount, if any, to award in future medical ex penses. Thate v. Texas & P. Ry. Co., 595 S.W.2d 591, 601 (Tex.Civ.App.--Dallas 1980, writdism'd). This standard of review, however, is "not so ne bulous that a reviewing court will uphol d a jury award for future medical expens es when there is no evidence." Harvey v. Culpepper, 801 S.W. 2d 596, 599(Tex.Ap p.–Corpu s Christi 1990, no writ). Here, there was ample testimony by Dr. George regarding future medical expenses. Regarding Cleveland’s condition, he testified “she is a t a point where [her back] could easily fail” and “in all medi cal prob ability she is going to require further interven tions in the futur e athigher l evels in her spin e.” When asked specifically what to antic ipate in terms of fu ture medical care, Dr. George s tate d he would eventually need to ex tend the fusions on her spine and pref

aced it b y stating , “I don’t think we ’re at theend of th is.” Reg arding th e costs8

of such care, Dr. George explained the overall cost of a fusion procedure “can be very high” and “would be more expensive than her first surgery.” Provi ded this testimony, we find there was morethan a sc intillaof evide nce to su pport t h e jury’s award for future medical expenses. Bituminous’s seventh issue is overruled. Byits eigh th issue, Bitumin ous conte nds the e vidence was lega lly insu ff ic ient to support the jury’s award of

$35,000 for loss of

earning capacity in the past and $35,000 for loss of earning capacity in the future. We disagree. L oss of earning c apacity is the plaintiff's diminis hed capa city to ea rn a livi ng. Koko Motel , 91 S.W.3 d at 51. It entail s consideration of what plaintiff's capacity to earn a liveli hood actually was and assesses the extentto which it was i mpaired. Id. Loss of past earning capacity is the pla intiff's diminished capacity to earn a living during the pe riod between the injury and the date of trial. See Strauss v. Continental Airlines, Inc., 67 S.W.3d 428, 435 (Tex .App.–Houston [1st Dist.] 2002, no

pet.). In order to suppor tsuch a claim, the plaintiff must introduce evidence from which ajury may r easonabl y measurein mo netary ter m s his earning capacity prior to injury. Id. If the plaintiff's earning capacity is not totally destroyed, but only impaired, the extentof his loss can best be shown by comparing his actual earningsbefore and after his injury. Id. at 436. See alsoMcIver v. G loria, 140 Te x. 566, 169S.W.2d 71 0, 712 (1 943). In determin ing whet her evid ence is s ufficient, there is no general rule, and each case must be judged on its p articula r facts. McIver, 169 S.W. 2d at 712

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In the present case, Cleveland’s claim for loss of past earning capacity was based
on a 17-month period. Cleveland’s test imony , summarized in Exhibit 49 and based on payroll records f

rom her em ployer, s uggest th at during this per i od, Cleve land suffered approximately$45,042.65 in lost earnings. Under the appropria te standard of review, Cleveland was only required to present evidence from which a jury could determine earning capacity prior to the injury i n moneta ry terms. Strauss , 67 S.W.3d at 435. We find the payroll records a nd Cleve land’s testimony to be pro bative e vidence in this r egard a nd sufficientto allow the jury to reasonably conclude Cl eveland's earning capacity in the past was dimi nished b y the amou nt of $35 ,000.
Loss of future earning capacity is the plaintiff's diminished capacity to earn a living after tri al. Plainview Motels, Inc. v. Reynolds, 127 S .W.3d 21, 35 (Tex.App.–Tyler 2003, pet. denied). Becaus e the amoun t of money a plaintiff might earn in the future is always uncertain, the jury has considerable discretion in determin ing thisamount. Id . To supp ort
an award for damages f or loss o f future earning capacity, the plaintiff must introduce evidence sufficient to allow the jury to re asonabl y measureearning capacity in monetary terms. Id. at 35-36. Regarding future e a rning capacity, Cleveland was 36 years old at the time of trial and testifie d she ex pects to w ork to age 65. Dr. George testified regarding the extent of her injuries, the permanen t restrictions on her daily activities, and her unfavorable prognosis for recovery. Cleveland also tendered detailed evidence of her employment and10

earnings history, includi ng expe cted bonu ses. We find all this testimony to be more than
a scin til la of evidence and sufficient to allow the jury to reasonably conclude Cleveland's future earning capacity wa s diminishe d by the a mount of $ 35,000. Bitumino us’s eig hth issue is overruled.
We conclude our review by considering Bi tuminous’s fifth issue contending the trial court abused its discretion in admittin g the med ical bil ls under affidavi t when th e same we re
n ottimely filed in accordance with chapter 18 of the Texas Civil Practice and Remedi e s Code. We agree.
In our anal ysis, we must first determinewheth er the error was preserved for our reviewand, if so, then determine whether the trial court committed error. If we decide the trial court erred in admitting the evidence, we must decide whether the error was harmful. In this regard, the evidence must demonstrate the error was calculated to cause an d probablydid cause the trial co urt to render an impro per judgme nt. See Tex. R. App. P. 44.1(b). See alsoNatural Gas Clea ringhous e v. Midg ard Energy C o., 113 S.W.3d 400, 410 (Tex.App.--Amarillo 2003, pet. denied); Hasty, Inc. v. Inwood Buckthorn Joint Venture, 908 S.W.2d 49 4, 501 (T ex.App.- -Dallas 1995, wri t denied ).
P roof of amounts charged or paid for medical services is n ot proof o f
rea sonableness and will not support an award in the absence of evidence show ing th e charges were reasonab le and n ecessary. Rodriguez-Narrera v. Ridinger, 19 S.W.3d 531, 532 (Tex.Ap p.--Fort Wo rth 2000, no pet.). Ordinari ly, expe rt testimo ny is req uired to11

establish that charges by a medical provider for services were reasonable and necessary. I d

. Where, a s here, C levelan d seeks to recover for medical charg es and se rv ices, th e expense and incon venienceof s ecuring the testi mony of an expert to testify at trial to provide evide nce can be avoided by providing an affidavit which qualifies with section 18.001 o f the Cod e.
In the absence of a controverting affidavit, as material here, section 1 8.001 provides in part:

an affidavit thatthe amou nt a person charged for a service was reasonable atthe time and place that the service was provided and that the service was necessar

yis sufficient evidence to support a finding of fact by judgeor jury thatthe amount charged was reasonable or that the service was necessary.
The affidavit mustconform to the requirements of subsection (c) and must be filed with the clerk of the court and a copy served on each party to the case at l east30 days before the dayon which evidence is first presented at the trial of the case. Subsection (e) provides thatthe oppo sing par ty ma y c ontrovert the claim reflected by the affidavit by a counteraffidavitfiled with the clerk and served on the o t her party 30 days after receipt of the affidavit or at least

14 days before th e day on which ev idence i s first pre sented or with leave of court. The term “must” as used in section 18.001 creates aconditi on preced ent. See Tex. Gov t. C ode Ann. § 311.01 6(3). See alsoHelena Chemical Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001). As crafted, section 18.001 provides a pretrial procedur e to facilita te proof of

the cost and necessity of services by traditional means at trial by timely5 In addition to computer generated bil ling on Covenant Health System heading date d

April 15, 2005, Exhibit 67 also include s one sheet entitled “Summary of Mona Cleveland’s PastMedical Bills,” listing 22 providers incl uding Covenant showing total past medical bills of $459,153.62. The jury fou nd the reasonable and necessary medical care exp enses incurred in the p ast to be $459,000

. 12 filing the statu to ry affidavit before trial and is otherwise sufficient to satisfy the condition preceden t of the statute.
In Decembe r 2005, tw

o affidav its for me dical bi lling re cords of C ovenant H ealth System were fil ed with t he clerk in the to tal amoun t of $48,4 17.06. Later, a third affidavit for medical billing records by Covenant Health System containing 76 pages covering April 26, 2003 through February 10, 2004, in the total amount of $241,286.02 was filed with the clerk. Following selection of the jury, some evidence was presented on Monday, April 18, 2005. When court reconvened April 19, at the suggestion of the court and out of the jury’s presence, Clevela nd’s cou nsel offe red Exhi bits 7 through 90 into evidence. Among other things, Bituminous’s counsel objected to the admission of the affidavit filed April 1 8, 2005, marked Exhibit 67, because it was not timely fil ed per section 18.001; however, the objection was overruled, 5 and accordingly, the error charged was timely preserved for our review. See Tex. R. App. P. 3 3.1(a).
In order to be admissible under section 18.001, as above noted, the affidavit must be fil ed at least 30 days before presentation of evidence, and timely filing constitutes a condition precedentto admissio n into ev idence. We concl ude the t rial cou rt abused its discretion in admitting Exhibit 67.13

Having determined that the admission of Exhibit 67 was error and is preserved for review, we must next determine if the err or was harmful. The medical services and charges shown on Exhibit 67 total $241 ,286.02. This amount, tog ether with the charges
o f the rem aining providers shown on the summary of providers incl uded in Exhibit 67 supportsth e jury awar d of $459,000. In Hasty, Inc. , after holding that evidence was erroneouslyreceived , the cour theld tha t because there was no other evidence to supp ort
an award of attorney’s fees, the error was harmful. 908 S.W.2d at 503. Similarly, we hold the admission of Exhibit 67 showing medical expenses in the amount of $241,286.02 was erroneous, and in the absence of other evidence by traditional means of proof to s upport the expens es pro vided by Covena nt Health Systems, was calculated to cause and proba bly did cause the trial court to render an imprope r judgment . Bituminous’s fifth issue is sustained, and the award for past reasonable a nd necessary medical expenses in the amount of $459,000 is reduced by $241,286.02. Accordingly, that part of the trial court’s judg ment aw arding Mona Cleveland damages in the amount of $816,493.69 is reversed, and judgment ishereby rendered that she have and recover from Bituminous Casualty Corporation damage s in the amount of $575,207.67; in all other respects the judgment is affirmed.

Don H. Reavis Justice