Damages


Texas Supreme Court grants a mandamus petition and denies Plaintiff’s attempted counteraffidavit “gotcha.”

May 7th, 2023 By Erin Holmes

Confirming and applying its previous opinion in In re Allstate Indemnity Insurance Co., 622 S.W.3d 870 (Tex. 2021), the Texas Supreme Court granted a Petition for Mandamus in In re Chefs’ Produce of Hous., Inc., ___ S.W.3d ___, 2023 WL ___ (Tex. Apr. 21, 2023) (per curiam) [22-0286], holding that the trial court abused its discretion by striking the counteraffidavits and testimony of Chefs’ Produce’s retained expert because the opinions expressed in a counteraffidavit need not be admissible to provide
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It ain’t heavy . . . it’s just the lodestar! Attorneys’ fees and the requirements of Rohrmoos

February 12th, 2023 By David L. Plaut

Even though the Rohrmoos case has been around since 2019, Plaintiffs’ lawyers with contingency contracts more than occasionally designate themselves as testifying experts without providing any fee bills or other accounting addressing the legal tasks and time incurred in connection with the prosecution of a case.  This practice is out of line with the requirements of Rohrmoos. Texas courts use the “lodestar method” for proving the reasonableness and necessity of attorneys’ fees. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP,
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Doctor, my eyes have seen a really inflated medical bill!

September 23rd, 2022 By Derick Lancaster

The Texas Supreme Court has long struggled with the issue of inflated medical bills. In 2018, the Court held that the negotiated rates a medical provider charged to patients’ private insurers and public-entity payors were relevant and discoverable on the issue of the reasonableness of the “full” rates the provider charged to an uninsured patient for the same services. In re N. Cypress Med. Ctr. Operating Co., 559 S.W.3d 128, 129 (Tex. 2018) (orig. proceeding). In In re K&L Auto
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Texas Supreme Court Refuses to Apply a Counteraffidavit Death Penalty Trap

June 20th, 2021 By Erin Holmes

On May 7, 2021, the Texas Supreme Court issued an opinion in In re Allstate Indemnity Co., ruling that a party’s failure to comply with the requirements of Section 18.001 of the Texas Civil Practice and Remedies Code for counteraffidavits does NOT preclude the party from offering evidence or argument regarding the reasonableness and necessity of past medical expenses at trial. Following a motor vehicle collision, Plaintiff Alaniz filed suit seeking underinsured motorist benefits under her policy with Allstate.  She
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Prejudgment Interest 101

February 10th, 2017 By Todd Key

Any complete evaluation of consumer insurance litigation should include an estimate of potential prejudgment interest. Typical homeowners and business auto policies explicitly include prejudgment interest in coverage. Questions about prejudgment interest are generally overlooked until the eve of trial, but they represent a quantifiable financial impact to every insurance claim. Under Texas law, prevailing parties generally receive prejudgment interest as matter of course, absent exceptional circumstances. Richter, S.A. v. Bank of America Nat. Trust and Sav. Ass’n, 939 F.2d 1176
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Medical Expense Challenges – What To Do When Health Insurance Doesn’t Pay

February 8th, 2017 By Laura D. Tubbs

One of the most important issues that arises in the defense of third-party automobile liability and first-party uninsured/underinsured motorist cases is damages for medical expenses. Section 41.0105 of the Texas Civil Practice and Remedies Code provides that, in addition to any other limitation under law, recovery of medical or health care expenses in a personal injury suit is limited to the amount “actually paid or incurred” by or on behalf of the claimant. Tex. Civ. Prac. & Rem. Code §
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Future Medical Expenses After Escabedo

January 11th, 2017 By Catherine Hanna

In Haygood v. Escabedo, 356 S.W.3d 390, 399 (Tex. 2011), the Texas Supreme Court held that “only evidence of recoverable medical expenses is admissible at trial,” but no cases have directly addressed the impact of Escabedo on claims of future medical expenses. Plaintiffs are not required to use expert testimony to establish future medical expenses, but they must show there is a “reasonable probability” that they will incur expenses and must present evidence to show “future medical expenses are required
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