GARZA v. ESCAMILLA (2025)

OPINION

The central question in this personal injury case is whether the evidence is factually sufficient to support an award for future physical pain and future physical impairment. Our answer is yes.

BACKGROUND

This case arises out of a car accident that occurred on July 30, 2017, between Nicklos Lagrone and Alma Escamilla.

The facts leading up to the accident are not in dispute. Lagrone took his eyes off the road to reach for a cup. When he looked up, he saw that Escamilla's vehicle had come to a stop in front of him. Lagrone slammed on his brakes, but he was too late to avoid a rear-end collision.

Neither Lagrone nor Escamilla suffered any visible injuries from the collision. The airbags did not deploy in either vehicle, and no police or ambulance was ever dispatched to the scene. However, both vehicles were towed away, and Escamilla claimed that she later developed neck and back pain.

In the hours after the accident, Escamilla went to the emergency room, where a CT scan of her cervical spine was taken. The scan revealed no acute fractures or dislocations, but it did reveal mild disc degenerative disease, consistent with aging. Escamilla was discharged that same day with instructions to take an NSAID and muscle relaxer.

Escamilla then saw a chiropractor on August 4, 2017. She complained of persistent pain in both her upper and lower back, plus headaches. The chiropractor found evidence of whiplash, like damage to the muscles and ligaments in Escamilla's neck. He also suspected that injuries inside her spine were irritating her nerves.

The chiropractor referred Escamilla to a pain management doctor, whom she saw on August 15, 2017. Escamilla presented with complaints of pain in the cervical, thoracic, and lumbar spine. The pain management doctor found tenderness in the muscles throughout Escamilla's back. He also found that Escamilla's range of motion had been restricted. He recommended a conservative treatment of physical therapy, home exercises, and more NSAIDs and muscle relaxers.

Escamilla returned to the chiropractor, complaining again of persistent pain. The chiropractor then ordered an MRI, which revealed that Escamilla had four herniations in her cervical spine, three herniations in her lumbar spine, as well as tears along the discs.

After the MRI, Escamilla returned to the pain management doctor, who discussed interventional options to treat her pain. Among those options was an epidural steroid injection, to which Escamilla consented. The pain management doctor administered the injection on November 14, 2017, and at a follow-up visit roughly two weeks later, he found that Escamilla had “an excellent response.” Though Escamilla still reported some minimal pain in her cervical spine, the pain management doctor remarked that “the vast majority of her pain has resolved.”

Escamilla revisited the pain management doctor on May 2, 2018. She reported that she had felt great for about three months after the epidural steroid injection, but that the pain had started to return. She complained about pain across the lumbar spine, predominantly on the left side. She described the pain as sharp and shooting, and that it radiated down her left leg to about the knee. The pain management doctor indicated that her options were to continue with conservative treatment or to proceed with another epidural steroid injection. When Escamilla expressed a concern about weight gain from the injection, the pain management doctor suggested reducing the steroid by half. Escamilla initially agreed to that suggestion, but she subsequently declined the procedure altogether.

Escamilla filed an original petition in October of 2018, alleging that Lagrone had been negligent and that he had proximately caused her injuries. Her case proceeded to a trial by jury four years later, in October of 2022. During that trial, Lagrone stipulated to liability. The only question concerned damages.

Lagrone testified that his airbags would only deploy in a collision exceeding nineteen miles per hour. He opined that he struck Escamilla at less than ten miles per hour. Despite that opinion of a low-speed impact, he still admitted that he was sore after the accident for a couple of days.

The chiropractor testified that he last examined Escamilla on November 29, 2017—roughly two weeks after her epidural steroid injection, and nearly five years before the trial. He said that her condition had been “much improved” then, but he opined that “in all reasonable medical probability she's going to have pain in her neck and her back in the future that will probably come and go depending on what type of activities she's doing.” He explained that there is no cure for a herniated disc, and that herniations are “permanent and progressive,” meaning that they get worse over time. He also testified that only the symptoms of the herniation can be treated, and that relief can be achieved through chiropractic care, exercise, core strengthening, and pain management.

The pain management doctor testified that he last saw Escamilla on May 2, 2018, when he proposed a second epidural steroid injection. He testified that herniated discs can touch the spinal canal and physically irritate the nerves, or they can release chemicals that inflame the nerves, causing pain. He also testified that tears around the discs, or annular fissures, can be very painful because they are pain receptors. He indicated that pain from these tears can be persistent because they do not heal like a superficial cut. However, he testified that a herniated disc can heal on its own, controverting the testimony from the chiropractor. He also clarified that a herniated disc can worsen too.

A coworker testified that Escamilla had originally been hired as an interpreter at a pediatric therapy center. The coworker said that Escamilla would sometimes be required to physically restrain children with aggressive or violent tendencies. But after the accident, the coworker said that Escamilla could not physically handle the children, or even sit for long periods of time. Due to her physical limitations, Escamilla was reassigned to an administrative role. Even two or three years after the accident, the coworker said that Escamilla would exhibit signs of pain, though she did not complain about it.

A niece testified that she formerly lived with Escamilla. She said that they used to exercise together. They would jog at the park, or do home exercises like lunges or sit ups. But the niece testified that they stopped exercising after Escamilla's accident because Escamilla complained of back pain.

Escamilla testified that she has a prior history of back pain. She claimed that she injured her back in 2005 when she reached for a child who had tripped while exiting a bus. Escamilla testified that she endured sciatica for about two weeks after that incident, but that she did not have any back pain again until her car accident with Lagrone.

Escamilla admitted that she had not consulted with a chiropractor or pain management doctor since 2018, but she explained that she works with physical therapists, who have recommended exercises to her. She testified that she tries to exercise three or four times per week, depending on how well she feels.

She also claimed that she is always in pain. On a scale of one to ten, Escamilla said that her neck pain on a good day is two, and on a regular day between four and six. She added that the pain had been very bad during the trial, as high as nine. As for her back, she said that the pain on a good day is two, and on a bad day between seven and nine.

Escamilla testified that she liked being outdoors before the car accident. She used to walk her dog for hours. She would hike with her sister in the mountains. She also claimed that she would exercise and lift weights. But now she claims that walking can be painful after an hour, and that she does not lift weights anymore. She indicated that she cannot even mop the house or clean the bathrooms as she used to. She testified that she feels depressed when she realizes that she is always in some sort of pain, and that she cannot enjoy time with her grandchildren or engage in certain activities like she would want.

Lagrone did not call any witnesses in his defense. His counsel argued in closing statements that the credible evidence did not support a recovery of future damages. Counsel emphasized the pain management doctor's testimony that herniated discs can heal themselves. Counsel then turned to the medical records, which showed that Escamilla's condition had actually improved. Counsel also emphasized that Escamilla did not seek additional treatment, despite her claims that the pain had returned. And he expressed skepticism about Escamilla's testimony that she was consulting with physical therapists because the therapists themselves did not testify.

Escamilla's counsel argued in response that the MRI provided objective proof of seven herniated discs. He encouraged the jury to credit the chiropractor's testimony that these herniations are permanent and progressive, and that Escamilla will live with pain into the future.

As for the amount of damages, counsel suggested that the jury should award Escamilla one dollar for every waking hour for her past and future physical pain, as well as her past and future physical impairment. Assuming sixteen waking hours each day, and a span of 1,897 days between the accident and the trial, counsel proposed that Escamilla was entitled to $30,352 for her past physical pain, and the same amount for her past physical impairment. And assuming further that Escamilla would live another 9,125 days—or twenty-five years, until she turned eighty—counsel proposed that Escamilla was entitled to $146,000 for her future physical pain, and the same amount for her future physical impairment. Aside from these categories of damages, counsel implored the jury to award Escamilla $25,000 for her past mental anguish, $50,000 for her future mental anguish, and $32,051.65 for her past medical expenses.

By a vote of ten to two, the jury found that Escamilla was entitled to $30,352 in damages for her past physical pain, the same amount for her past physical impairment, $25,000 for her past mental anguish, and $32,051.65 for her past medical expenses—all of which was consistent with her counsel's proposals. The jury departed from counsel's proposals on the remaining categories of damages. It awarded Escamilla $20,000 for her future mental anguish ($30,000 less than what counsel had proposed); $200,000 for her future physical pain ($56,000 more than what counsel had proposed); and $200,000 for her future physical impairment (also $56,000 more). All told, the jury found that Escamilla was entitled to damages in the amount of $537,755.65.

The trial court entered a final judgment based on the jury's findings. Lagrone now appeals from that final judgment.¹

ANALYSIS

Lagrone challenges whether the evidence is factually sufficient to support Escamilla's award of future physical pain and future physical impairment, which the jury valued at $200,000 each. He does not challenge the sufficiency of the evidence regarding the remaining categories of damages.

I. Standard of Review

When, as here, a party challenges the factual sufficiency of a finding for which the party did not have the burden of proof at trial, we review all of the evidence in a neutral light and will reverse the trial court's judgment only if the evidence supporting the finding is so contrary to the overwhelming weight of the evidence as to make the judgment clearly wrong and manifestly unjust. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998). Under this standard, we may not pass upon the credibility of witnesses or substitute our judgment for that of the factfinder, even if the evidence would clearly support a different result. Id. at 407.

II. The Existence of Damages

In a personal injury case, the plaintiff must prove both the existence and the amount of her damages. See In re Liberty Cnty. Mut. Ins. Co., 679 S.W.3d 170, 174 (Tex. 2023) (orig. proceeding) (per curiam).

Lagrone explicitly challenges whether the evidence supports the amount of Escamilla's damages, but his briefing is unclear as to whether he is also challenging the existence of those damages. His main brief contains the following rhetorical passage: “Is it wholly unreasonable to think Escamilla would experience some pain in the future that merited an award of damages? Certainly not.” Through that language, Lagrone appears to concede that the evidence was sufficient to support a finding as to the existence of future damages. But his reply brief asserts the following: “Without current pain, there cannot be a basis for future pain claims.” That language appears to challenge whether Escamilla has any future damages at all, which is somewhat reminiscent of counsel's closing statements in the trial court.

In an abundance of caution, we consider whether the evidence is factually sufficient to support a finding as to the existence of Escamilla's damages. And we begin our review with her award for future physical pain.

A. Future Physical Pain

To recover damages for future physical pain, Escamilla was required to prove by a preponderance of the evidence that she will feel physical pain in the future. See Metro. Transit Auth. v. Mendoza, No. 14-19-01011-CV, 2021 WL 2461959, at *5 (Tex. App.—Houston [14th Dist.] June 17, 2021, pet. denied) (mem. op.).

The chiropractor testified directly as to this point. He opined that “in all reasonable medical probability she's going to have pain in her neck and her back in the future that will probably come and go depending on what type of activities she's doing.” He based this opinion on objective proof that Escamilla has seven herniated discs. He also added that those herniations are permanent and that they will progressively worsen over time.

There was some conflicting evidence on this point. The pain management doctor testified that herniations can heal on their own. The doctor also remarked that Escamilla had an excellent response to an epidural steroid injection, which seemed to resolve “the vast majority of her pain.”

But there was also evidence that the pain had returned several months after the epidural steroid injection. And while Escamilla did not seek additional treatment for that pain from the chiropractor or the pain management doctor, there was testimony that she had conferred with physical therapists instead. There was also testimony that, as of the time of trial—which was several years after the accident—Escamilla was still in pain.

Considering all of this evidence in a neutral light, we cannot say that the jury's finding that Escamilla will suffer from future pain is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See Gibbins v. Berlin, 162 S.W.3d 335, 344 (Tex. App.—Fort Worth 2005, no pet.) (“Evidence of continuing pain can support an award of future physical pain.”).

B. Future Physical Impairment

Damages for physical impairment are meant to compensate for the loss of enjoyment of life. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 772 (Tex. 2003). The focus for this category of damages it not the injuries or symptoms themselves, but whether those injuries have impaired the claimant's functions or life activities, which may encompass sports, hobbies, and other forms of recreation. See PNS Stores, Inc. v. Munguia, 484 S.W.3d 503, 515 (Tex. App.—Houston [14th Dist.] 2016, no pet.). To recover such damages in this case, Escamilla was required to prove by a preponderance of the evidence that the effect of any physical impairment was substantial, and that it was distinct from or extended beyond any pain, mental anguish, or other categories of damages. Id. at 514.

Escamilla testified about her claimed loss of enjoyment of life. She explained that she used to enjoy spending time outdoors—such as by walking, hiking, and exercising—but that she cannot engage in such activities anymore because of her back pain. She also testified that her foremost thoughts are about her grandchildren, who are both under the age of three, and how she wants to enjoy time with them.

Lagrone does not highlight any controverting evidence. For instance, there was no testimony that Escamilla did not actually enjoy spending time outdoors, or that she would not suffer any loss of enjoyment if she were unable to spend time with her grandchildren. Lagrone focuses instead on just the testimony that she can no longer work, lift weights, or clean the house as she would like without feeling pain. To the extent such testimony supports a recovery for future physical impairment, Lagrone argues that her damages impermissibly overlap with her recovery for future physical pain.

But the jury was instructed to “not award any sum of money on any element if you have otherwise, under some other element, awarded a sum of money for the same loss.” We must presume that the jury followed this instruction, unless the record demonstrates otherwise. See Golden Eagle Archery, 116 S.W.3d at 771.

The record does not affirmatively reveal that the jury disregarded the trial court's instruction. And based on the uncontroverted testimony that Escamilla cannot enjoy spending time outdoors or with her grandchildren as she would like, we conclude that the jury could have rationally found that her loss of enjoyment of life was substantial and distinct from any other category of compensable damages. We likewise conclude that the evidence is factually sufficient to support the jury's finding as to the existence of Escamilla's future physical impairment. Cf. Barnhart v. Morales, 459 S.W.3d 733, 746 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (concluding that there was factually sufficient evidence to support an award of past physical impairment where the evidence showed that the claimant's injuries prevented her from walking for more than a quarter of a mile, made sitting for more than thirty minutes painful, and eliminated her social life, among other reasons); see Thomas v. Ortiz, No. 13-22-00534-CV, 2023 WL 6886130, at *4 (Tex. App.—Corpus Christi Oct. 19, 2023, no pet.) (mem. op.) (concluding that there was factually sufficient evidence to support an award of future physical impairment where the evidence showed that the claimant suffered several herniated discs and was unable to enjoy fishing, tending his yard, and working on his car).

III. The Amount of Damages

Damages for physical pain and physical impairment are inherently difficult to quantify because the alleged injury is a subjective, unliquidated, and nonpecuniary loss. See Argueta v. Gutierrez, No. 14-19-00794-CV, 2021 WL 1567716, at *9 (Tex. App.—Houston [14th Dist.] Apr. 22, 2021, pet. denied) (mem. op.). Nevertheless, such damages are recoverable, and we afford the jury a measure of discretion when deciding on the amount of those damages, though the discretion is limited. See Saenz v. Fid. & Guaranty Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996). The jury cannot simply pick a number and put it in the blank. Id. The jury must decide on an amount that, in the language of the standard jury charge, “would fairly and reasonably compensate” the plaintiff for her loss. Id.

The Texas Supreme Court recently attempted to articulate a standard for evaluating a jury's award for mental anguish—which, like physical pain and physical impairment, is a species of noneconomic damages—but it yielded a nonbinding plurality opinion. See Gregory v. Chohan, 670 S.W.3d 546 (Tex. 2023) (plurality op.). Three justices opined that “the amount of damages must have a rational basis grounded in the evidence,” and that “when the record lacks evidence directly supporting the amount found, parties and reviewing courts must explore whether there is any other rational explanation of how the evidence supports the finding.” Id. at 560–61 (Blacklock, J., joined by Hecht, C.J., and Busby, J.). Two justices rejected that standard as “incapable of being satisfied,” opining that there is no objectively correct measure for damages that are impossible to quantify. Id. at 570 (Devine, J., concurring, joined by Boyd, J.). The sole participating justice who still remained on the case would have resolved the matter on an alternative basis, reserving for another day the more difficult task of articulating an appropriate standard for reviewing an award of noneconomic damages. Id. at 577 (Bland, J., concurring).

Despite the split opinions, there was still some common ground. The justices all agreed that, when deciding on the amount of damages to award, the jury should consider the nature, duration, and severity of the claimant's loss. Id. at 557, 570–71. They agreed that the amount decided should not be based on mere passion or prejudice or improper motivations. Id. at 564 n.16, 570, 576. They also disfavored the use of “unsubstantiated anchoring,” a tactic whereby counsel suggests an amount of damages with reference to objects or values having no rational connection to the facts of the case. Id. at 557, 569, 577.

Escamilla's counsel suggested an amount of damages based on a simple calculation: sixteen dollars per day, or one dollar for every waking hour in the day in which Escamilla experienced loss. The jury apparently credited that suggestion, at least with regard to its findings of Escamilla's past physical pain and past physical impairment. For each of those categories of damages, the jury awarded Escamilla $30,352—a non-round number that might otherwise appear to have been plucked out of thin air if it did not correspond exactly with the number of waking hours between the day of the accident and the day of the trial.

Lagrone has not challenged the jury's findings as to Escamilla's past physical pain and past physical impairment. Nor has Lagrone presented any argument that the methodology suggested by Escamilla's counsel was somehow improper—which is important insofar as counsel suggested the same methodology when he proposed an amount of damages for Escamilla's future physical pain and future physical impairment.

For both of those categories of damages, counsel encouraged the jury to award Escamilla $146,000—which is sixteen dollars per day for the next twenty-five years (not counting leap days), at which point Escamilla would be eighty years old. The jury increased that suggested amount to $200,000, for reasons that cannot be known with any certainty, though the record would support at least two plausible hypotheses.

First, there was testimony that Escamilla's herniated discs would worsen over time. The jury could have reasonably determined from that testimony that her physical pain would also worsen, and that her future damages for physical pain should reflect that greater loss.

Second, there was testimony that Escamilla's grandmother had lived to the age of ninety-four, and that Escamilla's mother, who was still alive, was currently eighty. If the jury believed that Escamilla would live past the age of eighty, just as the other women in her family, then it could have reasonably concluded that the loss for her future physical impairment should reflect that longer life span. And had the jury further believed that Escamilla would live to the age of ninety-four, just as her grandmother, then her loss under counsel's methodology would exceed $227,000. The jury's award of $200,000 was well within that range and not excessive. See Kelly Custom Homes, LLC v. Hopper, No. 14-23-00793-CV, 2024 WL 3765393, at *9 (Tex. App.—Houston [14th Dist.] Aug. 13, 2024, pet. denied) (mem. op.) (upholding an award for $150,000 in mental anguish damages, despite the award being $50,000 higher than what counsel had requested during closing statements).

Noneconomic damages are not amenable to calculation with “precise mathematical precision.” See Anderson v. Durant, 550 S.W.3d 605, 618 (Tex. 2018). We afford the jury a measure of discretion when deciding on an amount of damages “that a reasonable person could possibly estimate as fair compensation.” Id. Given all of the testimony concerning the nature, duration, and severity of Escamilla's injuries—including the permanence of her seven herniated discs, the continuity of her losses, and the impacts they have had on her life's functions and activities—we cannot say that the evidence is factually insufficient to support the jury's findings of her future physical pain and future physical impairment. See PNS Stores, Inc. v. Munguia, 484 S.W.3d 503, 517–18 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (concluding that the evidence was factually sufficient to support an award of $520,000 in future physical pain and $420,000 in future physical impairment where the claimant sustained a traumatic brain injury and now has difficulties painting, going out, and dealing with his grandchildren); Primoris Energy Servs. Corp. v. Myers, 569 S.W.3d 745, 757–61 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (op. on reh'g) (concluding that the evidence was legally and factually sufficient to support an award of $500,000 for future physical pain and $2 million for future physical impairment where the claimant suffered six herniated discs and was rendered unable to tend to his ranch and continue his regular interactions with his daughter); Hulsey v. Attalla, No. 01-18-00180-CV, 2019 WL 3484082, at *10–13 (Tex. App.—Houston [1st Dist.] Aug. 1, 2019, no pet.) (mem. op.) (concluding that the evidence was legally and factually sufficient to support an award of $175,000 for future physical pain and mental anguish and $200,000 for future physical impairment where the evidence showed that the claimant suffered spinal injuries and was rendered unable to perform his duties at church, play with his children, and maintain an active lifestyle).

Lagrone counters that the amounts awarded are excessive when compared to the verdicts in other cases.

We have previously recognized that a reviewing court may consider verdicts in other cases when deciding what constitutes reasonable compensation, but we have also cautioned that each case must be evaluated on its own facts because “comparison of injuries in different cases is virtually impossible.” See Critical Path Res., Inc. v. Cuevas, 561 S.W.3d 523, 570 (Tex. App.—Houston [14th Dist.] 2018, pet. granted, judgm't vacated w.r.m.).

Lagrone begins by directing our attention to six cases: Cannon v. Fenton, No. 14-22-00529-CV, 2023 WL 8820458 (Tex. App.—Houston [14th Dist.] Dec. 21, 2023, pet. denied) (mem. op.); Belford v. Walsh, No. 14-09-00825-CV, 2011 WL 3447482 (Tex. App.—Houston [14th Dist.] Aug. 9, 20211, no pet.) (mem. op.); Peter v. Ogden Ground Servs. Inc., 915 S.W.2d 648 (Tex. App.—Houston [14th Dist.] 1996, no writ); Enright v. Goodman Distribution, Inc., 330 S.W.3d 392 (Tex. App.—Houston [14th Dist.] 2010, no pet.); Hambrick v. Foremost Cnty. Mutual Ins., 688 S.W.3d 369 (Tex. App.—Tyler 2024, no pet.); and Cox v. Centerpoint Energy, Inc., No. 14-05-01130-CV, 2007 WL 1437519 (Tex. App.—Houston [14th Dist.] May 17, 2007, no pet.) (mem. op.). These cases are not informative, as each is a plaintiff's appeal from a judgment in which the finder of fact refused to award any compensation at all in some category of noneconomic damages. If these cases established what is fair and reasonable compensation for future physical pain and future physical impairment in all personal injury suits, as Lagrone would seemingly have us hold, then there would be no purpose in submitting such damages to the jury, as they would never be recoverable. That is clearly not the law.

In a footnote, Lagrone refers us to a seventh case: Dawson v. Briggs, 107 S.W.3d 739 (Tex. App.—Fort Worth 2003, no pet.). Unlike the other six cases, Dawson was a defendant's appeal from a judgment in which the finder of fact affirmatively awarded the plaintiff compensation for her past and future physical impairment ($50,000 and $25,000, respectfully). Id. at 752. But the court of appeals reversed that judgment because there was factually insufficient evidence to support a finding about the existence of those damages. Id. at 752–53 (remarking that “the plaintiff must establish that physical impairment exists,” and concluding that the plaintiff did not testify about any activities that she was unable to perform in the past or would be incapable of performing in the future). Given that disposition, the court of appeals never opined whether there was factually sufficient evidence to support a finding about the amount of damages. Thus, that case is not informative for our purposes either.

During oral argument, Lagrone referred to FTS International Services, LLC v. Patterson, No. 12-19-00040-CV, 2020 WL 5047913 (Tex. App.—Tyler Aug. 26, 2020, pet. granted, judgm't vacated w.r.m.) (mem. op.), as an example of a case where an appellate court reversed a judgment because the awards for noneconomic damages were excessive. But that case involved a “massive” judgment for $24 million in noneconomic damages, including $8 million in future physical pain and $5 million in future physical impairment. Id. at *2, *18. The facts of Escamilla's case—and the far smaller amounts awarded here—are not comparable at all.

Lagrone argues next that the amount of future damages is excessive because it is several times higher than the amount of past damages. But this is a simple function of time—Escamilla's counsel argued, and the jury apparently believed, that Escamilla's pain was permanent and would continue through her old age. The difference between the awards rationally reflects that her future losses are greater than her past losses because she has more life to live.

Lagrone relatedly argues that the amount of future damages is excessive because, after she revisited the pain management doctor in 2018, Escamilla “never sought further treatment—of any kind from anyone.” He continues by asserting that “injured people, particularly those who are in pain, seek treatment,” and “it seems illogical that a person experiencing constant pain would not only stop treating this pain, but actively decline treatment.” This argument seems to challenge the existence of future damages, rather than their amount. In any event, Lagrone's factual assertions are not accurate. Escamilla testified that she continued to consult with physical therapists, who recommended exercises for treating her pain. The jury could have rationally credited that testimony and found both that her pain was persistent and that she had sought additional treatment. Considering all of the evidence in a neutral light, we cannot say that these implied findings are so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust.

IV. Unsubstantiated Anchoring

In his final issue, Lagrone argues that Escamilla's counsel engaged in the same form of unsubstantiated anchoring that the Supreme Court recently disfavored in Gregory. Lagrone directs our attention to the following excerpt from counsel's closing statements:

All right. So how do you figure it out—how do you figure it out? What's the value of pain to a human being? What's the value of not being able to pursue things that she love[s]? We saw that she has impairment from her work, they had to make accommodation for her. Thank God she was an exemplary, perfect employee and they would make accommodations for her.

And then what about the accommodations in her life? That's what the human damages that we're asking you to compensate for. How do you do that?

First, when you think about pain think about—it's not cheap, I know that, because we spend billions and billions of dollars to avoid pain, Tylenol, ibuprofen, you know, Aleve, that kind of stuff, right? If we go to the dentist we pay for Novocain. If you go to the doctor, they'll give you epidural steroid injections. They might alleviate the pain for a little while, not permanent or not going to fix it. We spend billions and billions for pain. If big pharma comes out with another pain reliever, they make billions of dollars off of it as they should. That's good. That's a good thing.

Our constitution in Texas says that we can execute someone if they do—under certain conditions if they do a horrendous type crime but we can't cause them pain when we do it, that's barbaric—that's barbaric.

Lagrone now contends that counsel made improper references to the pain management industry and to the prohibition against cruel and unusual punishment. He argues that these references served as unsubstantiated anchors, insofar as they had no rational connection to the facts of the case.

We first note that Lagrone did not raise any such objection in the trial court, which is how error to improper argument must ordinarily be preserved. See Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680 (Tex. 2008) (per curiam). Only in rare cases where argument is incurable can the complaint be raised for the first time on appeal. Id. The test for whether argument is incurable is “whether the argument, considered in its proper setting, was reasonably calculated to cause such prejudice to the opposing litigant that a withdrawal by counsel or an instruction by the court, or both, could not eliminate the probability that it resulted in an improper verdict.” See Alonzo v. John, 689 S.W.3d 911, 913 (Tex. 2024) (per curiam).

We fail to see how this high threshold was breached.

The obvious message from counsel was that there is no market for physical pain or physical impairment to assist the jury in assigning a value to Escamilla's losses. However, there is a market to avoid pain, and a constitutional prohibition against inflicting it unnecessarily—which shows that pain is both expensive and intolerable, themes that have a rational connection to a claimant in a personal injury case. Moreover, when the entirety of counsel's argument is considered, there was clearly no anchor based on the billion-dollar value of the pain management industry or the constitutional prohibition against cruel and unusual punishment. Counsel suggested a value that was far simpler to understand: one dollar for every waking hour of loss, or sixteen dollars per day.

We conclude that error has not been preserved, and that in any event, there was no unsubstantiated anchoring.

CONCLUSION

The trial court's judgment is affirmed.

FOOTNOTES

1.   Lagrone passed away during the pendency of this appeal. In the interest of consistency and readability, we continue to refer to him as the appellant in this opinion.

Tracy Christopher, Chief Justice