Over the summer, Byron Henry and I wrote an article discussing the emerging majority rule in Texas for applying section 41.0105, the paid vs. incurred rule for medical care expenses.  Our goals were two-fold: (1) to update the appellate bar on the current state of the law on this issue and (2) to provide suggestions for how to deal in practice with various pitfalls we see with the emerging majority rule.  Byron and I have practiced on both sides of the docket, so we did not intend those suggestions to be defense-oriented.  Rather, as appellate practitioners, we have seen how the current majority rule is inherently flawed in practice and creates dangers for plaintiffs and defendants alike.

Byron and I felt the topic was especially timely because the Texas Supreme Court had recently granted the petition in one of the cases emerging in the majority — Escabedo v. Haygood, 283 S.W.3d 3 (Tex. App.—Tyler 2009, pet. granted).  The Court heard argument on September 16, 2010.

We received a good deal of positive feedback after the article was published in the Appellate Advocate.  But we also heard concerns from some that our article could influence the Texas Supreme Court’s decision in Haygood to the detriment of Petitioner.  I was humbled to think an article I was involved with could have such an impact, but I was also excited to be part of a timely and important debate that will impact how we all practice.

Following the Haygood argument, John Gsanger and Paul Gold prepared a response to our article, which was published in the current edition of the Appellate Advocate.  Byron and I would like to briefly reply to that article here.


Continue Reading Section 41.0105 — The Debate Continues