The El Paso Court of Appeals issued an opinion this week that addresses, in part, application of Civil Practice and Remedies Code Section 41.0105.  There are two takeaways from the Section 41.0105 discussion.

First, the El Paso court joins the  majority of intermediate appellate courts in Texas holding that 41.0105 should be handled post-verdict. Frontera Sanitation, LLC v. Cervantes, No. 08-08-00330-CV, slip op. at 9 (Applying Irving Holdings, Inc. v. Brown, 274 S.W.3d 926, 930 (Tex. App.–Dallas 2009, pet. denied) and holding that "Section 41.0105 must be applied as a limitation on the fact finder’s medical expenses award.").

Second, defendants must present the trial court with evidence of the expenses written-off in order to get a reduction in the expenses awarded.  Although this point seems self-evident, one of the challenges in addressing Section 41.0105 in the trial court is determining when and how to raise the Section 41.0105 issue and objection.  

To that end, I continue to suggest  the following approach when the trial court insists on allowing the jury to consider medical bills that show the amounts "initially incurred" (i.e., initially billed prior to any deductions):

  1. Object to the admission of the unredacted, complete bills and move to  exclude any evidence of medical or health care expenses that were written off.  
  2. Present an offer of proof on the record regarding the proper amounts
  3. Make necessary objections and requests to the jury charge

For a detailed discussion of the state of this issue in Texas, please see the article written by Bryon Henry and myself, which is available here.