41.0105 -- post-judgment reduction does not cure error

I have been waiting and watching for post-Haygood opinions, and the Amarillo Court of Appeals delivered a great opinion this week with Henderson v. Spann.  In a 2-1 opinion, the panel held that the trial court's admission of unadjusted medical bills and exclusion of adjusted medical bills constituted reversible error even though the trial court reduced the award to the adjusted amount post-trial. Yes.  Even though the past medical expenses ultimately awarded matched the adjusted amounts, the judgment was still reversed and the case remanded for a new trial.  

Justice Hancock wrote the majority opinion, and I think he got it right.  He provides a thorough analysis of Haygood and notes that the Haygood court rejected the post-trial adjustment method to implement article 41.0105.   

Justice Pirtle concurred in the result (i.e., that reversal and remand were necessary due to the trial court's erroneous exclusion of the adjusted medical bills).  But he wrote separately to encourage the Texas Supreme Court to revisit whether unadjusted medical bills are per se irrelevant.  Justice Pirtle opined that unadjusted medical bills could be relevant to the question of damages for future medical bills, and that "the use of proper instructions and carefully tailored jury questions" would make it possible to present unadjusted and adjusted medical bills to the jury.

Justice Quinn concurred in the determination that error occurred, but dissented as to the determination that the error was harmful.  Justice Quinn opined that no harm occurred because the trial court reduced the medical expenses awarded, leaving a judgment for only the adjusted amounts.  Respectfully, I believe this approach fails to consider that a jury could decide to award less than the maximum amount of the adjusted bills.  A post-verdict reduction to the maximum amount of the adjusted bills prevents the defense from arguing that even the adjusted amounts are not reasonable and necessary and improperly takes that factual determination away from the jury. 

Links to all 3 opinions can be found here.

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