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Electronically Filed
3/25/2024 11:05 AM
Hidalgo County District Clerks
Reviewed By: Jaziel Valladares
CAUSE NO. C-2960-22-D
MARTHA DILLOW AND § IN THE DISTRICT COURT
KENNETH DILLOW §
§
§
§
V. §
§ 206th JUDICIAL DISTRICT OF
§
§
RUMALDO GARCES AND NORTH §
ALAMO WATER SUPPLY §
CORPORATION §
Defendants. § HIDALGO COUNTY, TEXAS
PLAINTIFFS’ MOTION TO EXCLUDE and/or BRIEF IN SUPPORT OF
MOTIONS IN LIMINE CONCERNING EVIDENCE OF LAWYER REFERRAL
AND ATTORNEY DIRECTED MEDICAL TREATMENT OR PAYMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, Plaintiffs, MARTHA DILLOW and KENNETH DILLOW, and file this
Motion to Exclude and/or Brief in Support of Motions in Limine Concerning Evidence of Lawyer
Referral and Attorney Directed Medical Treatment or Payment, and in support thereof would
respectfully show this Court as follows:
I. BACKGROUND FACTS
On or about May 3, 2022, RUMALDO GARCES was stopped at the intersection of Curry
Road and FM 1423 Road facing east. MARTHA DILLOW was traveling southbound on FM 1423
approaching Curry Road behind another vehicle. The vehicle in front of MARTHA DILLOW
moved to the right as it was going to turn west on Curry Road. RUMALDO GARCES failed to
yield the right of way at a stop sign and entered the intersection. MARTHA DILLOW veered to
right in an attempt to avoid the crash, but her front left collided with RUMALDO GARCES’ left
Electronically Filed
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Hidalgo County District Clerks
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side. The impact caused RUMALDO GARCES to be pushed back, striking the stop sign located
at the southwest corner of Curry Road and FM 1423 with its’ back center.
On the day in question Rumaldo Garces was driving with a suspended license. Two states,
Texas and Louisiana had suspended his license prior to May 3, 2022. According to The Texas
Pattern Jury Charge (PJC) 5.1 provides that “The unexcused violation of a legislative
enactment…as defining the standard of conduct of a reasonable person is negligence in itself. The
unexcused violation of a statute or ordinance constitutes negligence as a matter of law if such
statute or ordinance was designed to prevent injuries to a class of person to which the injured part
belongs.” [PJC 5.1, Negligence Per Se, page 51]
On May 3, 2022, Defendant NORTH ALAMO WATER SUPPLY CORP., was the owner
of the vehicle operated by RUMALDO GARCES.
On the day in question, Defendant NORTH ALAMO WATER SUPPLY CORP. entrusted
the vehicle. To RUMALDO GARCES, a reckless, incompetent and unlicensed driver.
Defendant NORTH ALAMO WATER SUPPLY CORP. knew, or through the exercise of
reasonable care should have known, that RUMALDO GARCES was a reckless, incompetent and
unlicensed driver.
Based upon discovery in this case and comments of counsel, it is clear that despite the clear
need or Plaintiff’s medical treatment, Defendants may seek to introduce improper evidence of
Plaintiffs’ attorney referral to medical physicians and/or evidence of collateral sources in the form
of attorney directed treatment or payment, such as under letter of protection. Such evidence should
be excluded for the reasons detailed herein.
Trial Brief re Exclusion of Medicare/VA and Private Health Ins PAGE 2 OF 12
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II. ARGUMENTS & AUTHORITIES
A. Evidence of Attorney Directed Medical Treatment is Irrelevant to the Issues at Trial
and Defendants Have Failed to Establish Any Predicate for Admissibility Under a
Bias Theory.
Evidence of whether Plaintiff received the name of a treating physician from their
attorneys or not is irrelevant, absent a showing of fraud or collusion. The evidence does not
have any tendency to make the existence of any fact that is of consequence to the determination
of the legal issues in this litigation more probable or less probable than it would be without the
evidence. See Tex. R. Civ. P. 401. The threshold requirement for admissibility cannot be met
as there has been no showing of relevance for any such evidence.
In addition, Texas Rule of Civil Procedure 613(b) prescribes the predicate for
impeaching a witness concerning bias or interest. Specifically, Rule 613(b) requires that the
circumstances supporting such claim or the details of such statement, including the contents and
where, when, and to whom made, must be made known to the witness, and the witness must be
given an opportunity to explain or to deny such circumstances or statement. See, Tex. R. Civ. P.
613(b). Without the proper predicate, which has not been laid, any evidence of bias is improper.
Furthermore, the offeror must still establish relevancy and that the probative value outweighs any
unfair prejudice. See, Adams v. Petrade Intern., Inc., 754 S.W.2d 696, 711 (Tex. App.-Houston
[1st Dist.] 1988, pet denied). Defendants have failed to do so and in fact, cannot do so as discussed
infra.
Moreover, the introduction of evidence relating to how Plaintiff chose any treating
healthcare provider and/or whether or not such healthcare provider has been paid a retainer by
Plaintiff’s counsel is an improper attempt to inject bias, interest or prejudice of the person who
signed the affidavits in accordance with Tex. Civ. Prac. & Rem. Code§ 18.001. Based on the
Trial Brief re Exclusion of Medicare/VA and Private Health Ins PAGE 3 OF 12
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Hidalgo County District Clerks
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general exception created by Section 18.001, such person will not be present for trial to testify and
therefore cannot be presented with the impeachment materials and have the opportunity to explain
or deny any inferred bias, interest or prejudice as required by Tex. R. Evid. 613(b). As a result,
Plaintiffs’ Motion to Exclude and/or Brief in Support of Motions in Limine Concerning Evidence
of Lawyer Referral and Attorney Directed Medical Treatment or Payment should be granted.
B. Evidence that Any Plaintiff's Attorney Directed Any Treatment or Offered
Referrals to Plaintiff Violates the Attorney-Client Privilege.
Evidence as to whether any Plaintiff received the name of a treating physician from their
attorney would violate the attorney-client privilege. Rule 503(b) of the Texas Rule of Evidence
sets forth the basic elements of the attorney-client privilege. A client may not be compelled to
disclose, and may prevent others from disclosing, attorney-client communications made in
confidence and for the purpose of facilitating the rendition of legal services to the client. Tex. R.
Evid. 503.
The attorney-client privilege has been recognized as "the oldest of the privileges for
confidential communications known to the common law." United States v. Zolin, 491 U.S. 554,
562 (1989). Among communication privileges, it is the only one recognized by every state. See,
Stewart Sterk, Testimonial Privileges: An Analysis of Horizontal Choice of Law Problems, 61
MINN. L. REV. 461, 463 n.8 (1977). The purpose of the privilege is to ensure the free flow of
information between attorney and client, ultimately serving the broader societal interest of
effective administration of justice. Republic Ins. Co. v. Davis, 856 S.W.2d 158, 160 (Tex. 1993);
see also, West v. Solito, 563 S.W.2d 240, 245 (Tex. 1978). Texas courts will not hesitate to enforce
Trial Brief re Exclusion of Medicare/VA and Private Health Ins PAGE 4 OF 12
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Hidalgo County District Clerks
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the attorney-client privilege against forays by litigants seeking information. Ford Motor Co. v.
Leggat, 904 S.W.2d 643, 647-48 (Tex. 1995).
It is worth noting that the Chief Justice of the Texas Supreme Court considers these subjects
to be within the scope of attorney-client privilege. In dissent to the denial of a petition for writ of
mandamus, then-Justice, now Chief Justice Nathan Hecht issued an opinion directly on point
regarding the referral of a client to a healthcare provider. See, In re Avila, 22 S.W.3d 349, 350 (Tex.
2000) (Hecht, J., dissenting). Justice Hecht stated, "[w]hy would Avila and her attorney not have
intended the communication to be confidential. .. [i]f Avila and her attorney did not intend for his
advice to be kept confidential, they were acting against their own interest." Id. Chief Justice Hecht
continued:
Allstate argues that a referral to a treating physician, as contrasted with a consulting
physician, is not privileged because it does not relate to the rendition of legal
services. At the same time, Allstate argues that Avila's lawyer referred her to Dr.
Samaniego to strengthen her damages claim. I see no basis for arguing that the
attorney's referral was unrelated to his legal services in the case.
Id.
Undeniably, any question as to whether a personal injury plaintiff obtained the name of a
treating physician from his or her attorney seeks evidence of a confidential communication by
and between attorney and client. Specifically, the communication relates to "legal advice"
because there are numerous reasons, related to the prosecution of the case and the client's
interests, for which an attorney would suggest that a client in a personal injury case consult
with one treating physician as opposed to another. For example, there are physicians who
refuse to cooperate with Plaintiff’s attorneys in litigation. There are physicians who will not
meet with or even speak with patients' attorneys to answer questions or to prepare for a
deposition or a trial. There are physicians who charge exorbitant fees to serve as expert
Trial Brief re Exclusion of Medicare/VA and Private Health Ins PAGE 5 OF 12
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Hidalgo County District Clerks
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witnesses-fees that are ultimately paid by the client. There are physicians who charge fees to
meet with an attorney, to speak with the attorney over the telephone, or to prepare reports that
are needed to pursue a tort case (such as a statement regarding the causal relationship of a
patient's injuries to an accident). There are medical practices that charge fees to provide copies
of patient's records and bills. There are medical practices that do not send a patient's records
to a patient's lawyer during the course of the treatment.
By contrast, there are other physicians who are willing to serve as expert witnesses,
charge reasonable fees, and are willing to speak with a patient's attorney. There are medical
practices that provide copies of a patient's records and bills to his or her attorney at no charge
and are willing to do so during the course of the treatment. Further, there are physicians who
are better witnesses than others (just as there are lay persons who are better witnesses than
other lay persons). There are physicians who write better and more comprehensive reports
than other physicians, which may facilitate settlement of a case and would help the physician
refresh his or her recollection if he or she later has to testify. And there are undeniably some
physicians who do not mind the intrusive nature of litigation and time litigation may involve
while there are others, who prefer to avoid the courtroom. Without question, no attorney
wants to subpoena a witness who does not want to be there.
All of the above are reasons why an attorney may suggest the name of a treating
physician to a client in a tort case. Therefore, the communication relates to "legal advice" within
the meaning of that element of attorney-client privilege. Finally, along the lines of what Justice
Hecht acknowledged, if the communication does not relate to legal advice, then it is not relevant
to this case. Any contention by the Defendants that an attorney's suggestion of a treating physician
is admissible would be premised on the assumption that the communication was related to legal
Trial Brief re Exclusion of Medicare/VA and Private Health Ins PAGE 6 OF 12
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advice. Once that assumption is made, the communication is privileged. Plaintiffs’ Motion to
Exclude and/or Brief in Support of Motions in Limine Concerning Evidence of Attorney Directed
Medical Treatment and Payment should be granted.
C. The Collateral Source Rule Bars Admission of Evidence of Attorney Referral or
Attorney Payment for Medical Bills and/or Retainer.
The collateral source rule is both a rule of evidence and damages. Generally, it precludes
a tortfeasor from obtaining the benefit of, or even mentioning, payments to the injured party from
sources other than the tortfeasor. See, e.g., Lee v. Lee, 47 S.W.3d 767, 777 (Tex. App-Houston
[14th Dist.] 2001, pet. denied) (stating that benefits from a collateral source may not be credited
to tortfeasor); Exxon Corp. v. Shuttlesworth, 800 S.W.2d 902, 907-08 (Tex. App.-Houston [14th
Dist.] 1990, no writ) (holding evidence regarding worker's compensation benefits was properly
excluded by trial court). In other words, the defendant is not entitled to present evidence of, or
obtain an offset for, funds received by the plaintiff from a collateral source. Here Defendants seek
to do just that-obtain a benefit from a collateral source and inject into this trial unrelated evidence
concerning collateral sources.
While Defendants may argue that any Plaintiff’s attorney referral can be explained by
Plaintiff without mention of health insurance-this is simply not true. As discussed infra, should
the Court determine that the Defendants can present evidence of attorney referral of physician care,
then Plaintiff should be given the opportunity to explain why the attorney referred a physician,
which would undoubtedly require an explanation of the insurance coverage issues Plaintiff would
encounter. Such an exercise would create a mini-trial within this trial whereby Plaintiffs
counsel is having to justify providing the financial means (a collateral source) for his or her
client to obtain medical care. This evidence is irrelevant to the material issues at hand and
has no place in trial. Plaintiff's Motion to Exclude, or in the alternative, Motions in Limine
Trial Brief re Exclusion of Medicare/VA and Private Health Ins PAGE 7 OF 12
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related to same should be granted.
D. The Admission of Any Evidence that Attorneys Directed Medical Treatment or Paid
for Treatment is Unduly Prejudicial, Confuses the Issues to the Jury, and Should be
Precluded Pursuant to Rule 403 of the Texas Rules of Evidence.
Rule 403 of the Texas Rules of Evidence provides that relevant evidence may be excluded
"if its probative value is substantially outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence." Tex. R. Evid. 403. "Under Rule 403, it is presumed that the
probative value of relevant evidence exceeds any danger of unfair prejudice. The rule
envisions exclusion of evidence only when there is a clear disparity between the degree of
prejudice of the offered evidence and its probative value." Hammer v. State, 296 S.W.3d
555,568 (Tex. Crim. App. 2009).
Although this is not an exhaustive list, courts generally balance the following factors
when performing a Rule 403 analysis: "(1) how probative the evidence is; (2) the potential
of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the
time the proponent needs to develop the evidence; and (4) the proponent's need for the
evidence." Colone v. State, 573 S.W.3d 249,266 (Tex. Crim. App. 2019); see Gigliobianco v.
State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). In this context, "probative value"
refers to how strongly evidence makes the existence of a "fact of consequence" "more or less
probable" and to how much the proponent needs the evidence, and that "unfair prejudice" refers
to how likely it is that the evidence might result in a decision made on an "improper basis,"
including "an emotional one." Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010)
(quoting Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007)).
Trial Brief re Exclusion of Medicare/VA and Private Health Ins PAGE 8 OF 12
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Here, any evidence that Plaintiffs’ attorney provided a referral to a physician or paid for
treatment or retainer of that physician, including a letter of protection, should be excluded as highly
prejudicial. Any evidence of an attorney referral to physician would be presented for the sole
purpose of inferring bias and financial interest in the case outcome by Plaintiff’s medical providers
and/or collusion between Plaintiff’s counsel and Plaintiff’s physicians-which would likely
encourage the jury to make a decision on an emotional and improper basis. Any potential evidence
of purported bias is substantially outweighed by undue and unfair prejudice. Further, the evidence
is likely to impress the jury in some irrational, but nevertheless indelible way.
Excluding evidence of attorney directed treatment, or payment for the retainer or medical
treatment falls squarely in line with the reasoning behind excluding letters of protection.
Moreover, numerous other trial courts across Texas have ruled the same-precluding the very
evidence Defendants seek herein. For example, the Court in Doyle v. Rosenauer, No. 2017-
24908, 2019 WL 1276092 (133rd Tex. Dist.-Harris County) (Trial Order) granted Plaintiff’s
motion in limine in pertinent part, precluding the admission:
That Plaintiff’s attorney has sent or referred Plaintiff to any health care provider.
Such information is irrelevant and immaterial to any issue in the case. Further, such
information inquires into communications between the attorney and client which
constitutes the attorney-client privilege. In re Avila, 22 S.W.3d 349 (Tex. 2000).
The Court in Jagana v. Cormier, No. E-199564, 2019 WL 8109936, (172nd Tex. Dist.-
Jefferson County) (Trial Order) granted the Plaintiff’s motion in limine, in pertinent part,
precluding admission of evidence of:
12. Physician Referral. Questioning about the source of a referral to a medical
provider should be prohibited as violative of collateral source, attorney-client
privileged, or both, as well as excluded under Tex. R. Evid. 403. In the case of an
attorney referral, the details of the referral and why the Plaintiff sought the advice
of counsel prior to visiting any medical provider is protected by attorney-client
privilege. See, In Re Avila, 22 S.W. 3d 349 (Tex. 2000). Moreover, the Rule 403
Trial Brief re Exclusion of Medicare/VA and Private Health Ins PAGE 9 OF 12
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Hidalgo County District Clerks
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objection specifically objects to the introduction of the fact of an attorney referral
or an "in network" referral because it cannot be put into context. To address the
reasons why the referral was made would violate collateral source, i.e. doctors
through health insurance won't take private insurance in an auto accident case, or
plaintiff is uninsured, or defendant has not made any settlement offers or payments,
etc. Injecting an unexplained and yet highly prejudicial fact into the proceedings
carries a dangerous and unnecessary risk of unfair prejudice.
The Court in Harrison v. Salas, No. 017-302567-18, 2019 WL 8918844 (17th Tex. Dist.-
Tarrant Country, Sept 12, 2019) (trial order) granted the Plaintiff’s motion in limine, in pertinent
part, precluding evidence:
That Plaintiff’s attorneys have sent or referred Plaintiff to any physician. Such
information is irrelevant and immaterial to any issue in the case. Further such
information inquires into communication between the attorney and client and
Plaintiff hereby claim the attorney-client privilege. See, In Re Avila, 22 S.W. 3d
349 (Tex. 2000) (dissenting opinion denying petition for writ of mandamus).
This Court should follow its fellow courts and grant Plaintiffs’ Motion to Exclude and/or
Motions in Limine Concerning Evidence of Lawyer Referral and Attorney Directed Medical
Treatment or Payment and preclude the admission of any evidence concerning attorney referrals
and/or attorney directed medical care. This evidence is wholly irrelevant to the issues in this trial
and does not have any tendency to make the existence of any fact that is of consequence to the
determination of the legal issues in this litigation more probable or less probable than it would be
without the evidence.
E. Alternatively, Plaintiff Should be Permitted to Fully Explain Why an Attorney
Referral and Financial Assistance was Needed.
For the overwhelming majority of personal injury plaintiff attorney referrals to medical
care providers and payment assistance is borne of necessity due to financial hardship. Access to
affordable healthcare continues to command headlines and will likely provide enough fodder for
political debate for decades to come. Many (if not most) personal injury Plaintiff’s do not have
Trial Brief re Exclusion of Medicare/VA and Private Health Ins PAGE 10 OF 12
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Hidalgo County District Clerks
Reviewed By: Jaziel Valladares
private health insurance, and many of those that do often are effectively barred from using it due
to high deductibles that must be met, co-pays that must be paid at the time of treatment, or medical
providers' reluctance to treat and bill first party health insurance when a third-party liability claim
is involved.
If attorney referrals, payments, and/or letters of protection are admitted into evidence at
trial of this case, it will be by the Defendants undeniably for the sole purpose of inferring bias
and financial interest in the case outcome by Plaintiff’s medical providers and/or collusion
between Plaintiff’s counsel and Plaintiff’s physicians.
Defendants, through their actions and inactions, have injured Plaintiff in this case. Plaintiff
has sought to have their damages compensated by these negligent actors. From the very inception
of the claim, it was made clear that Plaintiff would have to arrange their own adequate medical
care at their own expense, then seek reimbursement from Defendants once they were medically
discharged. If the Court is not inclined to exclude evidence of attorney referrals to Plaintiffs
medical providers or letters of protection, in the alternative, and in the interests of the jury hearing
the whole story, Plaintiff requests the Court allow them to fully explain why an attorney referral
and financial assistance was needed in this case.
WHEREFORE PREMISES CONSIDERED Plaintiffs respectfully request this Court grant
this Motion to Exclude and/or Brief in Support of Motions in Limine Concerning Evidence of
Lawyer Referral and Attorney Directed Medical Treatment or Payment. Plaintiffs further request
any and all other relief, at law or in equity, to which they may show themselves justly entitled.
Trial Brief re Exclusion of Medicare/VA and Private Health Ins PAGE 11 OF 12
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Hidalgo County District Clerks
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Respectfully submitted,
LAW FIRM OF RICARDO A. GARCIA, PLLC
By: ______________________
Ricardo A. Garcia
State Bar No. 07643200
Ricardo J. Garcia
State Bar No. 24133245
820 S. Main
McAllen, Texas 78501
Telephone No.: (956) 630-2882
Telecopier No.: (956) 630-5393
E-mail: service@go-lawfirm.com
&
Jose M. Martinez
State Bar No. 13142400
JOSE M. MARTINEZ, P.C.
5804 N. 23rd St.
McAllen, Texas 78504
Telephone No.: (956) 682-5297
Telecopier No.: (956) 686-5658
E-mail: jmmatty2003@yahoo.com
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I certify that a true copy of the foregoing document was served in accordance with the Texas
Rules of Civil Procedure on this 25th day of March 2024.
Ricardo D. Villanueva
THORNTON, BIECHLIN, REYNOLDS & GUERRA, L.C.
418 East Dove Avenue
McAllen, Texas 78504-2240
E-mail: rvillanueva@thorntonfirm.com
ATTORNEYS FOR DEFENDANTS
_______________________________
Ricardo A. Garcia
Trial Brief re Exclusion of Medicare/VA and Private Health Ins PAGE 12 OF 12
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Mary Doeppenschmidt on behalf of Ricardo Garcia
Bar No. 07643200
marylou@go-lawfirm.com
Envelope ID: 85910265
Filing Code Description: Motion (No Fee)
Filing Description: PLAINTIFFS’ MOTION TO EXCLUDE and/or BRIEF IN
SUPPORT OF MOTIONS IN LIMINE CONCERNING EVIDENCE OF
LAWYER REFERRAL
Status as of 3/25/2024 11:30 AM CST
Associated Case Party: MARTHA DILLOW
Name BarNumber Email TimestampSubmitted Status
Ricardo A.Garcia service@go-lawfirm.com 3/25/2024 11:05:14 AM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
JOSE MARTINEZ jmmatty2003@yahoo.com 3/25/2024 11:05:14 AM SENT
RAPHAEL GARCIA RAGARCIA@THORNTONFIRM.COM 3/25/2024 11:05:14 AM SENT
JOSE MARTINEZ JMARTINEZ@VALLEYFIRM.COM 3/25/2024 11:05:14 AM SENT
RITA CORDOVA RCoronado-Cordova@thorntonfirm.com 3/25/2024 11:05:14 AM SENT
Associated Case Party: RUMALDO GARCES
Name BarNumber Email TimestampSubmitted Status
MD mdube@thortonfirm.com 3/25/2024 11:05:14 AM SENT
Ricardo D.Villanueva rvillanueva@thorntonfirm.com 3/25/2024 11:05:14 AM SENT
Associated Case Party: NORTH ALAMO WATER SUPPLY CORPORATION
Name BarNumber Email TimestampSubmitted Status
Melissa De Leon m.deleon@thorntonfirm.com 3/25/2024 11:05:14 AM SENT
Preview
Electronically Filed 3/25/2024 11:05 AM Hidalgo County District Clerks Reviewed By: Jaziel Valladares CAUSE NO. C-2960-22-D MARTHA DILLOW AND § IN THE DISTRICT COURT KENNETH DILLOW § § § § V. § § 206th JUDICIAL DISTRICT OF § § RUMALDO GARCES AND NORTH § ALAMO WATER SUPPLY § CORPORATION § Defendants. § HIDALGO COUNTY, TEXAS PLAINTIFFS’ MOTION TO EXCLUDE and/or BRIEF IN SUPPORT OF MOTIONS IN LIMINE CONCERNING EVIDENCE OF LAWYER REFERRAL AND ATTORNEY DIRECTED MEDICAL TREATMENT OR PAYMENT TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, Plaintiffs, MARTHA DILLOW and KENNETH DILLOW, and file this Motion to Exclude and/or Brief in Support of Motions in Limine Concerning Evidence of Lawyer Referral and Attorney Directed Medical Treatment or Payment, and in support thereof would respectfully show this Court as follows: I. BACKGROUND FACTS On or about May 3, 2022, RUMALDO GARCES was stopped at the intersection of Curry Road and FM 1423 Road facing east. MARTHA DILLOW was traveling southbound on FM 1423 approaching Curry Road behind another vehicle. The vehicle in front of MARTHA DILLOW moved to the right as it was going to turn west on Curry Road. RUMALDO GARCES failed to yield the right of way at a stop sign and entered the intersection. MARTHA DILLOW veered to right in an attempt to avoid the crash, but her front left collided with RUMALDO GARCES’ left Electronically Filed 3/25/2024 11:05 AM Hidalgo County District Clerks Reviewed By: Jaziel Valladares side. The impact caused RUMALDO GARCES to be pushed back, striking the stop sign located at the southwest corner of Curry Road and FM 1423 with its’ back center. On the day in question Rumaldo Garces was driving with a suspended license. Two states, Texas and Louisiana had suspended his license prior to May 3, 2022. According to The Texas Pattern Jury Charge (PJC) 5.1 provides that “The unexcused violation of a legislative enactment…as defining the standard of conduct of a reasonable person is negligence in itself. The unexcused violation of a statute or ordinance constitutes negligence as a matter of law if such statute or ordinance was designed to prevent injuries to a class of person to which the injured part belongs.” [PJC 5.1, Negligence Per Se, page 51] On May 3, 2022, Defendant NORTH ALAMO WATER SUPPLY CORP., was the owner of the vehicle operated by RUMALDO GARCES. On the day in question, Defendant NORTH ALAMO WATER SUPPLY CORP. entrusted the vehicle. To RUMALDO GARCES, a reckless, incompetent and unlicensed driver. Defendant NORTH ALAMO WATER SUPPLY CORP. knew, or through the exercise of reasonable care should have known, that RUMALDO GARCES was a reckless, incompetent and unlicensed driver. Based upon discovery in this case and comments of counsel, it is clear that despite the clear need or Plaintiff’s medical treatment, Defendants may seek to introduce improper evidence of Plaintiffs’ attorney referral to medical physicians and/or evidence of collateral sources in the form of attorney directed treatment or payment, such as under letter of protection. Such evidence should be excluded for the reasons detailed herein. Trial Brief re Exclusion of Medicare/VA and Private Health Ins PAGE 2 OF 12 Electronically Filed 3/25/2024 11:05 AM Hidalgo County District Clerks Reviewed By: Jaziel Valladares II. ARGUMENTS & AUTHORITIES A. Evidence of Attorney Directed Medical Treatment is Irrelevant to the Issues at Trial and Defendants Have Failed to Establish Any Predicate for Admissibility Under a Bias Theory. Evidence of whether Plaintiff received the name of a treating physician from their attorneys or not is irrelevant, absent a showing of fraud or collusion. The evidence does not have any tendency to make the existence of any fact that is of consequence to the determination of the legal issues in this litigation more probable or less probable than it would be without the evidence. See Tex. R. Civ. P. 401. The threshold requirement for admissibility cannot be met as there has been no showing of relevance for any such evidence. In addition, Texas Rule of Civil Procedure 613(b) prescribes the predicate for impeaching a witness concerning bias or interest. Specifically, Rule 613(b) requires that the circumstances supporting such claim or the details of such statement, including the contents and where, when, and to whom made, must be made known to the witness, and the witness must be given an opportunity to explain or to deny such circumstances or statement. See, Tex. R. Civ. P. 613(b). Without the proper predicate, which has not been laid, any evidence of bias is improper. Furthermore, the offeror must still establish relevancy and that the probative value outweighs any unfair prejudice. See, Adams v. Petrade Intern., Inc., 754 S.W.2d 696, 711 (Tex. App.-Houston [1st Dist.] 1988, pet denied). Defendants have failed to do so and in fact, cannot do so as discussed infra. Moreover, the introduction of evidence relating to how Plaintiff chose any treating healthcare provider and/or whether or not such healthcare provider has been paid a retainer by Plaintiff’s counsel is an improper attempt to inject bias, interest or prejudice of the person who signed the affidavits in accordance with Tex. Civ. Prac. & Rem. Code§ 18.001. Based on the Trial Brief re Exclusion of Medicare/VA and Private Health Ins PAGE 3 OF 12 Electronically Filed 3/25/2024 11:05 AM Hidalgo County District Clerks Reviewed By: Jaziel Valladares general exception created by Section 18.001, such person will not be present for trial to testify and therefore cannot be presented with the impeachment materials and have the opportunity to explain or deny any inferred bias, interest or prejudice as required by Tex. R. Evid. 613(b). As a result, Plaintiffs’ Motion to Exclude and/or Brief in Support of Motions in Limine Concerning Evidence of Lawyer Referral and Attorney Directed Medical Treatment or Payment should be granted. B. Evidence that Any Plaintiff's Attorney Directed Any Treatment or Offered Referrals to Plaintiff Violates the Attorney-Client Privilege. Evidence as to whether any Plaintiff received the name of a treating physician from their attorney would violate the attorney-client privilege. Rule 503(b) of the Texas Rule of Evidence sets forth the basic elements of the attorney-client privilege. A client may not be compelled to disclose, and may prevent others from disclosing, attorney-client communications made in confidence and for the purpose of facilitating the rendition of legal services to the client. Tex. R. Evid. 503. The attorney-client privilege has been recognized as "the oldest of the privileges for confidential communications known to the common law." United States v. Zolin, 491 U.S. 554, 562 (1989). Among communication privileges, it is the only one recognized by every state. See, Stewart Sterk, Testimonial Privileges: An Analysis of Horizontal Choice of Law Problems, 61 MINN. L. REV. 461, 463 n.8 (1977). The purpose of the privilege is to ensure the free flow of information between attorney and client, ultimately serving the broader societal interest of effective administration of justice. Republic Ins. Co. v. Davis, 856 S.W.2d 158, 160 (Tex. 1993); see also, West v. Solito, 563 S.W.2d 240, 245 (Tex. 1978). Texas courts will not hesitate to enforce Trial Brief re Exclusion of Medicare/VA and Private Health Ins PAGE 4 OF 12 Electronically Filed 3/25/2024 11:05 AM Hidalgo County District Clerks Reviewed By: Jaziel Valladares the attorney-client privilege against forays by litigants seeking information. Ford Motor Co. v. Leggat, 904 S.W.2d 643, 647-48 (Tex. 1995). It is worth noting that the Chief Justice of the Texas Supreme Court considers these subjects to be within the scope of attorney-client privilege. In dissent to the denial of a petition for writ of mandamus, then-Justice, now Chief Justice Nathan Hecht issued an opinion directly on point regarding the referral of a client to a healthcare provider. See, In re Avila, 22 S.W.3d 349, 350 (Tex. 2000) (Hecht, J., dissenting). Justice Hecht stated, "[w]hy would Avila and her attorney not have intended the communication to be confidential. .. [i]f Avila and her attorney did not intend for his advice to be kept confidential, they were acting against their own interest." Id. Chief Justice Hecht continued: Allstate argues that a referral to a treating physician, as contrasted with a consulting physician, is not privileged because it does not relate to the rendition of legal services. At the same time, Allstate argues that Avila's lawyer referred her to Dr. Samaniego to strengthen her damages claim. I see no basis for arguing that the attorney's referral was unrelated to his legal services in the case. Id. Undeniably, any question as to whether a personal injury plaintiff obtained the name of a treating physician from his or her attorney seeks evidence of a confidential communication by and between attorney and client. Specifically, the communication relates to "legal advice" because there are numerous reasons, related to the prosecution of the case and the client's interests, for which an attorney would suggest that a client in a personal injury case consult with one treating physician as opposed to another. For example, there are physicians who refuse to cooperate with Plaintiff’s attorneys in litigation. There are physicians who will not meet with or even speak with patients' attorneys to answer questions or to prepare for a deposition or a trial. There are physicians who charge exorbitant fees to serve as expert Trial Brief re Exclusion of Medicare/VA and Private Health Ins PAGE 5 OF 12 Electronically Filed 3/25/2024 11:05 AM Hidalgo County District Clerks Reviewed By: Jaziel Valladares witnesses-fees that are ultimately paid by the client. There are physicians who charge fees to meet with an attorney, to speak with the attorney over the telephone, or to prepare reports that are needed to pursue a tort case (such as a statement regarding the causal relationship of a patient's injuries to an accident). There are medical practices that charge fees to provide copies of patient's records and bills. There are medical practices that do not send a patient's records to a patient's lawyer during the course of the treatment. By contrast, there are other physicians who are willing to serve as expert witnesses, charge reasonable fees, and are willing to speak with a patient's attorney. There are medical practices that provide copies of a patient's records and bills to his or her attorney at no charge and are willing to do so during the course of the treatment. Further, there are physicians who are better witnesses than others (just as there are lay persons who are better witnesses than other lay persons). There are physicians who write better and more comprehensive reports than other physicians, which may facilitate settlement of a case and would help the physician refresh his or her recollection if he or she later has to testify. And there are undeniably some physicians who do not mind the intrusive nature of litigation and time litigation may involve while there are others, who prefer to avoid the courtroom. Without question, no attorney wants to subpoena a witness who does not want to be there. All of the above are reasons why an attorney may suggest the name of a treating physician to a client in a tort case. Therefore, the communication relates to "legal advice" within the meaning of that element of attorney-client privilege. Finally, along the lines of what Justice Hecht acknowledged, if the communication does not relate to legal advice, then it is not relevant to this case. Any contention by the Defendants that an attorney's suggestion of a treating physician is admissible would be premised on the assumption that the communication was related to legal Trial Brief re Exclusion of Medicare/VA and Private Health Ins PAGE 6 OF 12 Electronically Filed 3/25/2024 11:05 AM Hidalgo County District Clerks Reviewed By: Jaziel Valladares advice. Once that assumption is made, the communication is privileged. Plaintiffs’ Motion to Exclude and/or Brief in Support of Motions in Limine Concerning Evidence of Attorney Directed Medical Treatment and Payment should be granted. C. The Collateral Source Rule Bars Admission of Evidence of Attorney Referral or Attorney Payment for Medical Bills and/or Retainer. The collateral source rule is both a rule of evidence and damages. Generally, it precludes a tortfeasor from obtaining the benefit of, or even mentioning, payments to the injured party from sources other than the tortfeasor. See, e.g., Lee v. Lee, 47 S.W.3d 767, 777 (Tex. App-Houston [14th Dist.] 2001, pet. denied) (stating that benefits from a collateral source may not be credited to tortfeasor); Exxon Corp. v. Shuttlesworth, 800 S.W.2d 902, 907-08 (Tex. App.-Houston [14th Dist.] 1990, no writ) (holding evidence regarding worker's compensation benefits was properly excluded by trial court). In other words, the defendant is not entitled to present evidence of, or obtain an offset for, funds received by the plaintiff from a collateral source. Here Defendants seek to do just that-obtain a benefit from a collateral source and inject into this trial unrelated evidence concerning collateral sources. While Defendants may argue that any Plaintiff’s attorney referral can be explained by Plaintiff without mention of health insurance-this is simply not true. As discussed infra, should the Court determine that the Defendants can present evidence of attorney referral of physician care, then Plaintiff should be given the opportunity to explain why the attorney referred a physician, which would undoubtedly require an explanation of the insurance coverage issues Plaintiff would encounter. Such an exercise would create a mini-trial within this trial whereby Plaintiffs counsel is having to justify providing the financial means (a collateral source) for his or her client to obtain medical care. This evidence is irrelevant to the material issues at hand and has no place in trial. Plaintiff's Motion to Exclude, or in the alternative, Motions in Limine Trial Brief re Exclusion of Medicare/VA and Private Health Ins PAGE 7 OF 12 Electronically Filed 3/25/2024 11:05 AM Hidalgo County District Clerks Reviewed By: Jaziel Valladares related to same should be granted. D. The Admission of Any Evidence that Attorneys Directed Medical Treatment or Paid for Treatment is Unduly Prejudicial, Confuses the Issues to the Jury, and Should be Precluded Pursuant to Rule 403 of the Texas Rules of Evidence. Rule 403 of the Texas Rules of Evidence provides that relevant evidence may be excluded "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." Tex. R. Evid. 403. "Under Rule 403, it is presumed that the probative value of relevant evidence exceeds any danger of unfair prejudice. The rule envisions exclusion of evidence only when there is a clear disparity between the degree of prejudice of the offered evidence and its probative value." Hammer v. State, 296 S.W.3d 555,568 (Tex. Crim. App. 2009). Although this is not an exhaustive list, courts generally balance the following factors when performing a Rule 403 analysis: "(1) how probative the evidence is; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent's need for the evidence." Colone v. State, 573 S.W.3d 249,266 (Tex. Crim. App. 2019); see Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). In this context, "probative value" refers to how strongly evidence makes the existence of a "fact of consequence" "more or less probable" and to how much the proponent needs the evidence, and that "unfair prejudice" refers to how likely it is that the evidence might result in a decision made on an "improper basis," including "an emotional one." Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010) (quoting Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007)). Trial Brief re Exclusion of Medicare/VA and Private Health Ins PAGE 8 OF 12 Electronically Filed 3/25/2024 11:05 AM Hidalgo County District Clerks Reviewed By: Jaziel Valladares Here, any evidence that Plaintiffs’ attorney provided a referral to a physician or paid for treatment or retainer of that physician, including a letter of protection, should be excluded as highly prejudicial. Any evidence of an attorney referral to physician would be presented for the sole purpose of inferring bias and financial interest in the case outcome by Plaintiff’s medical providers and/or collusion between Plaintiff’s counsel and Plaintiff’s physicians-which would likely encourage the jury to make a decision on an emotional and improper basis. Any potential evidence of purported bias is substantially outweighed by undue and unfair prejudice. Further, the evidence is likely to impress the jury in some irrational, but nevertheless indelible way. Excluding evidence of attorney directed treatment, or payment for the retainer or medical treatment falls squarely in line with the reasoning behind excluding letters of protection. Moreover, numerous other trial courts across Texas have ruled the same-precluding the very evidence Defendants seek herein. For example, the Court in Doyle v. Rosenauer, No. 2017- 24908, 2019 WL 1276092 (133rd Tex. Dist.-Harris County) (Trial Order) granted Plaintiff’s motion in limine in pertinent part, precluding the admission: That Plaintiff’s attorney has sent or referred Plaintiff to any health care provider. Such information is irrelevant and immaterial to any issue in the case. Further, such information inquires into communications between the attorney and client which constitutes the attorney-client privilege. In re Avila, 22 S.W.3d 349 (Tex. 2000). The Court in Jagana v. Cormier, No. E-199564, 2019 WL 8109936, (172nd Tex. Dist.- Jefferson County) (Trial Order) granted the Plaintiff’s motion in limine, in pertinent part, precluding admission of evidence of: 12. Physician Referral. Questioning about the source of a referral to a medical provider should be prohibited as violative of collateral source, attorney-client privileged, or both, as well as excluded under Tex. R. Evid. 403. In the case of an attorney referral, the details of the referral and why the Plaintiff sought the advice of counsel prior to visiting any medical provider is protected by attorney-client privilege. See, In Re Avila, 22 S.W. 3d 349 (Tex. 2000). Moreover, the Rule 403 Trial Brief re Exclusion of Medicare/VA and Private Health Ins PAGE 9 OF 12 Electronically Filed 3/25/2024 11:05 AM Hidalgo County District Clerks Reviewed By: Jaziel Valladares objection specifically objects to the introduction of the fact of an attorney referral or an "in network" referral because it cannot be put into context. To address the reasons why the referral was made would violate collateral source, i.e. doctors through health insurance won't take private insurance in an auto accident case, or plaintiff is uninsured, or defendant has not made any settlement offers or payments, etc. Injecting an unexplained and yet highly prejudicial fact into the proceedings carries a dangerous and unnecessary risk of unfair prejudice. The Court in Harrison v. Salas, No. 017-302567-18, 2019 WL 8918844 (17th Tex. Dist.- Tarrant Country, Sept 12, 2019) (trial order) granted the Plaintiff’s motion in limine, in pertinent part, precluding evidence: That Plaintiff’s attorneys have sent or referred Plaintiff to any physician. Such information is irrelevant and immaterial to any issue in the case. Further such information inquires into communication between the attorney and client and Plaintiff hereby claim the attorney-client privilege. See, In Re Avila, 22 S.W. 3d 349 (Tex. 2000) (dissenting opinion denying petition for writ of mandamus). This Court should follow its fellow courts and grant Plaintiffs’ Motion to Exclude and/or Motions in Limine Concerning Evidence of Lawyer Referral and Attorney Directed Medical Treatment or Payment and preclude the admission of any evidence concerning attorney referrals and/or attorney directed medical care. This evidence is wholly irrelevant to the issues in this trial and does not have any tendency to make the existence of any fact that is of consequence to the determination of the legal issues in this litigation more probable or less probable than it would be without the evidence. E. Alternatively, Plaintiff Should be Permitted to Fully Explain Why an Attorney Referral and Financial Assistance was Needed. For the overwhelming majority of personal injury plaintiff attorney referrals to medical care providers and payment assistance is borne of necessity due to financial hardship. Access to affordable healthcare continues to command headlines and will likely provide enough fodder for political debate for decades to come. Many (if not most) personal injury Plaintiff’s do not have Trial Brief re Exclusion of Medicare/VA and Private Health Ins PAGE 10 OF 12 Electronically Filed 3/25/2024 11:05 AM Hidalgo County District Clerks Reviewed By: Jaziel Valladares private health insurance, and many of those that do often are effectively barred from using it due to high deductibles that must be met, co-pays that must be paid at the time of treatment, or medical providers' reluctance to treat and bill first party health insurance when a third-party liability claim is involved. If attorney referrals, payments, and/or letters of protection are admitted into evidence at trial of this case, it will be by the Defendants undeniably for the sole purpose of inferring bias and financial interest in the case outcome by Plaintiff’s medical providers and/or collusion between Plaintiff’s counsel and Plaintiff’s physicians. Defendants, through their actions and inactions, have injured Plaintiff in this case. Plaintiff has sought to have their damages compensated by these negligent actors. From the very inception of the claim, it was made clear that Plaintiff would have to arrange their own adequate medical care at their own expense, then seek reimbursement from Defendants once they were medically discharged. If the Court is not inclined to exclude evidence of attorney referrals to Plaintiffs medical providers or letters of protection, in the alternative, and in the interests of the jury hearing the whole story, Plaintiff requests the Court allow them to fully explain why an attorney referral and financial assistance was needed in this case. WHEREFORE PREMISES CONSIDERED Plaintiffs respectfully request this Court grant this Motion to Exclude and/or Brief in Support of Motions in Limine Concerning Evidence of Lawyer Referral and Attorney Directed Medical Treatment or Payment. Plaintiffs further request any and all other relief, at law or in equity, to which they may show themselves justly entitled. Trial Brief re Exclusion of Medicare/VA and Private Health Ins PAGE 11 OF 12 Electronically Filed 3/25/2024 11:05 AM Hidalgo County District Clerks Reviewed By: Jaziel Valladares Respectfully submitted, LAW FIRM OF RICARDO A. GARCIA, PLLC By: ______________________ Ricardo A. Garcia State Bar No. 07643200 Ricardo J. Garcia State Bar No. 24133245 820 S. Main McAllen, Texas 78501 Telephone No.: (956) 630-2882 Telecopier No.: (956) 630-5393 E-mail: service@go-lawfirm.com & Jose M. Martinez State Bar No. 13142400 JOSE M. MARTINEZ, P.C. 5804 N. 23rd St. McAllen, Texas 78504 Telephone No.: (956) 682-5297 Telecopier No.: (956) 686-5658 E-mail: jmmatty2003@yahoo.com ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE I certify that a true copy of the foregoing document was served in accordance with the Texas Rules of Civil Procedure on this 25th day of March 2024. Ricardo D. Villanueva THORNTON, BIECHLIN, REYNOLDS & GUERRA, L.C. 418 East Dove Avenue McAllen, Texas 78504-2240 E-mail: rvillanueva@thorntonfirm.com ATTORNEYS FOR DEFENDANTS _______________________________ Ricardo A. Garcia Trial Brief re Exclusion of Medicare/VA and Private Health Ins PAGE 12 OF 12 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Mary Doeppenschmidt on behalf of Ricardo Garcia Bar No. 07643200 marylou@go-lawfirm.com Envelope ID: 85910265 Filing Code Description: Motion (No Fee) Filing Description: PLAINTIFFS’ MOTION TO EXCLUDE and/or BRIEF IN SUPPORT OF MOTIONS IN LIMINE CONCERNING EVIDENCE OF LAWYER REFERRAL Status as of 3/25/2024 11:30 AM CST Associated Case Party: MARTHA DILLOW Name BarNumber Email TimestampSubmitted Status Ricardo A.Garcia service@go-lawfirm.com 3/25/2024 11:05:14 AM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status JOSE MARTINEZ jmmatty2003@yahoo.com 3/25/2024 11:05:14 AM SENT RAPHAEL GARCIA RAGARCIA@THORNTONFIRM.COM 3/25/2024 11:05:14 AM SENT JOSE MARTINEZ JMARTINEZ@VALLEYFIRM.COM 3/25/2024 11:05:14 AM SENT RITA CORDOVA RCoronado-Cordova@thorntonfirm.com 3/25/2024 11:05:14 AM SENT Associated Case Party: RUMALDO GARCES Name BarNumber Email TimestampSubmitted Status MD mdube@thortonfirm.com 3/25/2024 11:05:14 AM SENT Ricardo D.Villanueva rvillanueva@thorntonfirm.com 3/25/2024 11:05:14 AM SENT Associated Case Party: NORTH ALAMO WATER SUPPLY CORPORATION Name BarNumber Email TimestampSubmitted Status Melissa De Leon m.deleon@thorntonfirm.com 3/25/2024 11:05:14 AM SENT