UNION PACIFIC RAILROAD CO v. TRAVIS GOZAN (2026)

OPINION

This appeal comes to us following a jury trial in a suit under the Federal Employers' Liability Act (“FELA”). Though the suit arose out of a minor motor vehicle accident, the plaintiff claimed, and the jury so found, that the defendant's negligence resulted in two lifelong medical conditions. The main question that we must determine is whether the evidence supports the jury's findings of causation and damages. We conclude that there is sufficient evidence of causation as to both claimed medical conditions, but there is insufficient evidence to support the total amount of damages.

I. BACKGROUND

This case arises out of a workplace incident at a railyard.

Travis Gozan, an employee of Union Pacific, was riding as a passenger in a Kawasaki Mule, which is a lightweight utility vehicle. The driver, who was also employed by Union Pacific, failed to maintain control of the Mule, hopped a small curb, and collided with a building. The alleged reason for the collision was that the brakes had stopped working.

At the time of the accident, the Mule had been traveling at a low speed—no more than fourteen miles per hour—and Gozan was properly wearing his seatbelt. He walked away from the accident, but he later felt “discombobulated,” and he asked his father to transport him to the hospital.

Gozan arrived at the emergency room, complaining of lower back pain that radiated down the leg. He also complained of a headache, blurred vision, and tightness in his shoulder. He denied any blows to the head, neck pain, or loss of consciousness.

His physical examination was unremarkable. There was no tenderness, swelling, or erythema in the back. His range of motion was normal in the neck, back, and extremities. The x-ray images of his spine and the CT scan of his chest were likewise normal. The clinical impression of the emergency physician was that Gozan had “acute thoracic and lumbar back pain associated with muscle strain.” The physician prescribed an NSAID and discharged Gozan with instructions to follow up with his primary doctor.

Gozan visited his primary doctor three days later. That doctor cleared Gozan to return to work in two weeks, but Gozan did not return to work at the end of that two-week period. Instead, he retained legal counsel and filed a written report of injury with Union Pacific, complaining of “injury to head, back, butt, vision, & legs shoulders.” He remained off work for more than seven months.

During his time away from work, Gozan attended physical therapy, which improved his symptoms. He also consulted with an orthopedist, who ordered an MRI of the spine. As with his earlier imaging, the MRI returned normal results. Upon reviewing those results, the orthopedist released Gozan back to work without any restrictions.

Gozan complained of difficulty sitting when he eventually returned to work. He was then referred to an interventional pain physician, who diagnosed Gozan with coccydynia, or pain in and around the coccyx, which is also known as the tailbone. This pain management doctor treated Gozan with a series of epidural steroid injections, which only provided temporary relief.

Gozan then filed this suit under FELA. He alleged that Union Pacific was liable because, among other reasons, Union Pacific had failed to provide a safe workplace and because it had failed to properly train its employees on the operation of the Kawasaki Mule.

In preparation for his trial, Gozan consulted with a life care planner who was board certified in spinal cord injury medicine. Following a physical examination, this life care planner made the very first formal diagnosis that Gozan was suffering from myofascial pain syndrome. The life care planner determined that Gozan has trigger points in certain connective tissues, and she associated these trigger points with Gozan's complaints of “severe intractable daily headaches.”

After his consultation with the life care planner, Gozan met with a neurologist to discuss treatment for his headaches. The neurologist administered an occipital nerve block, which is an injection at the back of the head. The neurologist determined that if the nerve block did not provide sufficient relief, then a Botox injection might be considered next.

At his eventual trial, Gozan testified that he has remained on the job ever since he was cleared by the orthopedist to return to work. However, Gozan claimed that he is still suffering from coccydynia and from myofascial pain syndrome. The life care planner testified that these conditions will likely persist for the remainder of Gozan's life, and she projected that the cost of Gozan's reasonable medical care will exceed $1.5 million. The lion's share of that figure, at more than $1.1 million, represented twenty-six years' worth of Botox injections, even though at the time of trial Gozan had not received a single such injection.

Union Pacific disputed both liability and damages. As for liability, a representative for Union Pacific testified that no special requirements were needed to operate the Kawasaki Mule beyond the possession of a driver's license. Union Pacific also produced evidence that there was nothing wrong with the Mule itself. This evidence included a video of the incident, which showed that, after colliding with the building, the driver was still able to shift the Mule into reverse and successfully bring the Mule to a stop. There was also testimony that the Mule had no prior reports of faulty brakes. A subsequent inspection likewise confirmed that the brakes were fully functional and that the Mule was safe to operate. At various times, Union Pacific suggested that the driver, who did not testify, may have intentionally caused the collision to obtain time off from work.

As for damages, Union Pacific relied on the expert testimony of an orthopedic surgeon, who had reviewed Gozan's medical records, but who did not evaluate Gozan personally. The surgeon opined that the low-speed collision could not have caused coccydynia because Gozan has a Type II or protected coccyx. The surgeon explained that this sort of coccyx can only be injured in extremely traumatic situations where the hip bone is fractured, which did not happen here, as all of Gozan's images were normal. The surgeon also opined that Gozan's headaches were caused by his hypertension and his use of Ritalin to treat ADD, not by the low-speed collision. The surgeon believed that Gozan's initial complaints were compatible with muscle strain, which should have resolved within six weeks of the accident. The surgeon suggested that Gozan was malingering, or exaggerating his claimed injuries, and that there was no need for a life care plan.

The jury rejected this defensive evidence, found that Union Pacific was negligent, and further found that Gozan was entitled to recover $1,732,000 based on the following measures of damages: past physical pain and suffering ($60,000); future physical pain and suffering ($390,000); past mental anguish ($40,000); future mental anguish ($52,000); past physical impairment ($40,000); future physical impairment ($150,000); and future medical expenses ($1 million). The trial court entered a final judgment that tracked the jury's verdict. Union Pacific now appeals from that judgment.

II. JUDICIAL ADMISSION

Union Pacific does not challenge the jury's finding that it was negligent, but it does challenge the finding that its negligence caused either of Gozan's claimed medical conditions. Relatedly, assuming there is sufficient evidence of causation, Union Pacific further challenges the damages award.

Gozan counters that most of Union Pacific's arguments are precluded by a judicial admission. We address this threshold argument first.

A judicial admission operates as a formal waiver of proof. See Gevinson v. Manhattan Constr. Co. of Okla., 449 S.W.2d 458, 466 (Tex. 1969). It is conclusive upon the admitting party, it relieves the opposing party from the burden of proving the admitted fact, and it bars the admitting party from disputing that same fact. Id.

A judicial admission is normally found in the pleadings or stipulations of the parties. Id. Gozan asserts that Union Pacific made an admission somewhere else, through the deposition testimony of the railyard's superintendent. We reproduce that testimony here:

Q. As corporate representative for Union Pacific, can you also confirm that Mr. Gozan received an injury as a result of the August 14, 2021 collision?

A. Yes. I confirmed that's what we're here for, so yes, sir.

Q. As far as the nature and extent of injuries, who is it that determines how seriously Mr. Gozan was injured?

A. The medical professional.

Q. And by medical professionals, you mean doctors, treating doctors, of Mr. Gozan?

A. That would be correct.

Q. Does Union Pacific dispute any of the conclusions of Mr. Gozan's treating physicians or medical professionals regarding the nature and extent of his injuries?

A. To my knowledge, no, sir.

Q. And does Union Pacific accept responsibility for ensuring that the full extent of Mr. Gozan's injuries is cared for and treated appropriately?

A. Yes.

When a party's testimonial statements are contrary to the party's position, the statements are generally regarded as quasi-admissions. See Mendoza v. Fid. & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980). Such statements constitute some evidence of a given fact, and they are not typically conclusive upon the admitting party. Id. However, quasi-admissions can be treated as judicial admissions if, among other requirements, the statements are “deliberate, clear, and unequivocal.” Id.

Gozan argues that the superintendent's testimony meets this standard, and that Union Pacific is now precluded from presenting any sort of challenge regarding the cause of the claimed medical conditions or the future costs for treating those conditions. We disagree.

The superintendent was designated as Union Pacific's corporate representative on four topics: (1) the facts and circumstances of the underlying incident; (2) Union Pacific's investigation of and conclusions regarding that incident; (3) the maintenance, inspection, and repair of the vehicle involved in the incident; and (4) Union Pacific's safety rules and other related procedures. None of these topics encompassed medical causation, which was outside the scope of the superintendent's expertise.

The superintendent's testimony also failed to meet the standard of a judicial admission because it was both qualified and nonspecific. It was qualified because the superintendent prefaced his answer with a caveat: “to [his] knowledge” Union Pacific was not disputing the opinions of Gozan's medical professionals. And it was nonspecific because the scope of those medical opinions was never set forth in the questions that were presented to the superintendent, nor was the superintendent ever asked to identify which medical opinions would go unchallenged. There was an opinion from the emergency physician that Gozan suffered a muscle strain (which Union Pacific never challenged throughout the course of the proceedings), but there were also opinions from other medical professionals that Gozan is suffering from coccydynia and myofascial pain syndrome (which Union Pacific plainly challenged). The superintendent did not deliberately, clearly, and unequivocally state that Union Pacific was admitting its responsibility for all of these medical conditions.

We conclude that the superintendent's testimony was at most a quasi-admission, not a judicial admission. See Hennigan v. I.P. Petrol. Co., 858 S.W.2d 371, 372 (Tex. 1993) (per curiam) (holding that the plaintiff's deposition answer of “I think so” was a quasi-admission, not a judicial admission). And even if we were to assume for the sake of argument that the superintendent's testimony gave rise to a judicial admission, Gozan forfeited his right to rely on the purported judicial admission when he failed to object to Union Pacific's presentation of evidence that challenged the nature and extent of his claimed injuries. See Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 769 (Tex. 1983) (stating that a party relying on a judicial admission must object to the introduction of evidence contrary to the admission).

For all of these reasons, we conclude that Union Pacific is not precluded from presenting its sufficiency challenges, which we consider next.

III. CAUSATION

A railroad carrier is liable under FELA for any injuries to an employee that result “in whole or in part” from the carrier's negligence. See 45 U.S.C. § 51. This statutory standard is “as broad as could be framed,” and does not incorporate the traditional common law standard for proximate causation. See CSX Transp., Inc. v. McBride, 564 U.S. 685, 691 (2011). Whereas the common law standard requires a showing that a cause was a substantial factor in bringing about an injury, see Werner Enters., Inc. v. Blake, 719 S.W.3d 525, 528 (Tex. 2025), FELA's statutory standard is satisfied upon proof that the employer's negligence “played any part, even the slightest, in producing the injury or death for which damages are sought.” See Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 506 (1957).

This standard is low, even “featherweight.” See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1998). But it is not “no standard at all.” See Jones v. United States, 936 F.3d 318, 323 (5th Cir. 2019). A plaintiff under FELA must still produce competent evidence that connects the negligence of the employer to the injury of the employee. See Abraham v. Union Pac. R.R. Co., 233 S.W.3d 13, 17 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (citing Morgan v. Compugraphic Corp., 675 S.W.2d 729 (Tex. 1984)). And that connection must be based on a reasonable probability—not a possibility, speculation, or conjecture. See Lenger v. Physician's Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex. 1970).

Lay testimony can be sufficient to establish this causal nexus when the connection between two events is apparent to the casual observer, such as when there is undisputed evidence that a plaintiff suffered overt injuries like broken bones or lacerations following a motor vehicle accident. See Jelinek v. Casas, 328 S.W.3d 526, 533–34 (Tex. 2010). But if a case involves other sorts of medical conditions that are outside the general experience and common knowledge of the ordinary juror, then expert testimony is required to demonstrate causation. Id. at 533.

The jury implicitly found that Gozan satisfied his burden of producing competent evidence of causation, and our review is limited to considering only whether there is “some evidence” in support of that finding. See Tex. & Pac. R.R. Co. v. Roberts, 481 S.W.2d 798, 800 (Tex. 1972) (stating that a review under the “weight and preponderance” or factual sufficiency standard is precluded). In a “some evidence” or legal sufficiency review, we consider the record in the light most favorable to the jury's finding, crediting favorable evidence if a reasonable factfinder could and disregarding contrary evidence unless a reasonable factfinder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). The evidence is sufficient to support the finding if the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Id. at 822. The evidence is insufficient only if (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. Id. at 810.

A. Coccydynia

There were two diagnoses of coccydynia in this case. The first was made by Gozan's orthopedist, who later cleared Gozan to return to work, and the second was made by the pain management doctor, who reevaluated Gozan after his eventual return to work. Of those two physicians, only the pain management doctor appeared during the trial.

The pain management doctor testified that coccydynia is usually a clinical diagnosis reached after a review of the patient's history and a physical examination. It is not typically a diagnosis based on imaging because, in many cases, patients with coccydynia have normal findings on their images. The pain management doctor explained that trauma can lead to changes at the cellular level: the cells release enzymes, the enzymes lead to inflammation, and the inflammation results in chronic pain, which may be imperceptible to imaging technology.

The pain management doctor determined that Gozan was suffering from coccydynia because Gozan reported difficulty while sitting, which is “one of the hallmark features” of that condition, and because there was tenderness when she palpated his tailbone.

The pain management doctor believed that her job was to treat Gozan's pain. She disclaimed being an expert in evaluating motor vehicle accidents, and at times during the trial she resisted the suggestion that she had been consulted to determine medical causation. Nevertheless, the pain management doctor testified that she had reviewed the video of the accident, and she opined that, more likely than not, and to a degree of reasonable medical probability, the accident was the cause of Gozan's coccydynia.

The pain management doctor gave at least three reasons for that opinion. First, she explained that “being in a Mule, hitting and then slamming down” is “consistent” and “very much seen in our patients that develop coccydynia.” Second, she observed that the start of Gozan's pain corresponded with the occurrence of the accident. And third, she noted that Gozan's imaging eliminated other potential causes for his pain, such as tumors and degenerative disease.

We conclude that these explanations provided a sound evidentiary basis for the pain management doctor's opinion, and that a rational juror relying on that opinion could likewise find that Union Pacific's negligence caused Gozan's coccydynia.

Union Pacific argues that we should reach the opposite conclusion because the opinion of the pain management doctor followed the improper reasoning of post hoc ergo propter hoc, a logical fallacy stating that an earlier event caused a subsequent condition simply because the earlier event occurred first. But while evidence of a temporal proximity between an event and a condition might be insufficient by itself to support a finding of medical causation, such evidence can still be probative “when combined with other causation evidence.” See Guevara v. Ferrer, 247 S.W.3d 662, 667–68 (Tex. 2007). And the record here contains such additional evidence, as the pain management doctor affirmatively testified that the acts of riding in a Mule, hitting a wall, and then slamming down in a seat are consistent with the same mechanism of injury in which other patients have also developed coccydynia. Cf. Rivera v. Union Pac. R.R. Co., 378 F.3d 502, 510 (5th Cir. 2004) (in a case where the employer assigned heavy destressing work despite knowledge of the employee's back condition, there was sufficient evidence that the employer's negligence caused the employee's herniated disk, based on testimony that feeling a pop in the back while coupled with a severe onset of pain “would be consistent” with a final herniation of the disk).

Union Pacific focuses next on the testimony of the orthopedic surgeon, the defense witness who classified Gozan as having a Type II or protected coccyx. Because that classification was uncontroverted, and because the surgeon further testified that Gozan could not have injured his coccyx if his hip bones were still intact, Union Pacific argues that any evidence of causation was conclusively negated.

Evidence is conclusive only if reasonable people could not differ in their conclusions. See City of Keller, 168 S.W.3d at 816. And here, the pain management doctor provided an evidentiary basis for reaching a different conclusion from the surgeon. She explained that many patients will have normal images (i.e., no broken bones), but those patients will still develop coccydynia because of cellular changes that lead to inflammation and pain. The jury was free to credit that competing explanation. See Lavender v. Kurn, 327 U.S. 645, 652–53 (1946) (upholding a jury's finding that a railroad was liable under FELA, despite competing evidence tending to show that “it was physically and mathematically impossible” for the railroad to have injured its employee).

For all of the foregoing reasons, we conclude that the evidence, when viewed in the light most favorable to the verdict, was legally sufficient to support a finding that Gozan's coccydynia was caused by the underlying accident and the negligence of Union Pacific.

B. Myofascial Pain Syndrome

The second condition was diagnosed by the life care planner, a medical doctor who met with Gozan for a physical examination.

The life care planner did not specifically define myofascial pain syndrome. Instead, she explained that “myo-” refers to muscle; that “fascia” refers to the connective tissues that hold the body together; and that in the areas where the muscles blend into these connective tissues, trigger points can develop if the muscles become too tight, thereby resulting in pain.

The life care planner testified that myofascial pain syndrome is a clinical diagnosis, meaning that, just like coccydynia, it will not be apparent on imaging and it must be determined using a hands-on examination. The life care planner conducted one such examination and found that Gozan's “head was forward because he is very tight in his neck and his low back.” She also found that his right shoulder was internally rotated, and that her attempts to stretch his tissues were “very painful and tight with trigger points.” She said that Gozan has dystonia, which is a constant contraction of the muscle, and that this muscle tightness in his neck and shoulder are causing his headaches.

The life care planner attributed the cause of the myofascial pain syndrome and the resulting headaches to the underlying accident involving the Mule. She explained that, when Gozan went to the hospital after the accident and complained of headaches and shoulder pain, the emergency physician diagnosed him with having “acute thoracic and lumbar back pain associated with muscle strain.” The life care planner testified that this diagnosis was “part of the whole spectrum of myofascial pain,” and that the emergency physician had simply used more general terminology. That testimony echoed a similar point made by the pain management doctor, who testified that the goal of an emergency physician is to make the patient safe and “rule out the scary things,” like a stroke or heart attack: “And most of the time they diagnose as a muscle strain when you initially see them for a back issue or a neck issue. And then you go see a specialist who actually hones in on the diagnosis and finds out what the actual diagnosis is.”

We conclude that this evidence was sufficient to establish both that Gozan suffers from myofascial pain syndrome and that this condition was caused by the accident.

Union Pacific counters that the life care planner's opinion on causation was deficient because the life care planner did not investigate the accident or examine the forces involved. According to Union Pacific, the life care planner merely based her opinion on the timing of the accident.

These arguments fail to appreciate that muscle strains are within the general experience and common knowledge of the ordinary juror. And the jury here could have easily determined that Gozan's muscle strains were caused by the accident involving the Mule. The jury had access to the video of the accident. The jury also had pictures of the Mule, which showed that Gozan's front passenger seatbelt was attached to the side frame of the Mule and that his strap would have passed over his right shoulder, just as in an ordinary car. But unlike in an ordinary car, there was no headrest. Even without the benefit of an expert witness, the jury could have made the connection between the collision and the muscle strains that developed thereafter in Gozan's neck and shoulder.

The life care planner connected the remaining dots. She explained that the muscle strains caused the trigger points and dystonia, which in turn caused Gozan's intractable headaches.

Union Pacific still argues that the life care planner's testimony was deficient because the life care planner never addressed the competing evidence that Gozan's headaches were caused by his hypertension or use of Ritalin. In support of that argument, Union Pacific directs our attention to Helena Chemical Co. v. Cox, 664 S.W.3d 66 (Tex. 2023), which states that the plaintiff bears the burden of accounting for plausible alternative causes. Id. at 80. But that case is distinguishable because it considered a common law claim for negligence, not a statutory claim under FELA. The Texas Supreme Court also explained in that case that “the analysis of alternative causes must be sufficient for the factfinder to reasonably conclude that the defendant's conduct was a ‘substantial factor’ in causing the injury.” Id. As we mentioned earlier, FELA does not have the same “substantial factor” standard for causation as in an ordinary common law negligence case. The FELA standard is much more relaxed.

In a post-submission letter brief, Union Pacific argues that, even in a FELA case, an expert must still rule out alternative explanations for the plaintiff's claimed injury. Union Pacific refers us to a series of cases, but they mostly involve complex fact patterns, such as where the plaintiff claimed that his injury was caused from cumulative trauma or a toxic chemical exposure, neither of which is at issue here. E.g., Brown v. Burlington N. Sante Fe Ry. Co., 765 F.3d 765, 774 (7th Cir. 2014); Claar v. Burlington N. R.R. Co., 29 S.W.3d 499, 502 (9th Cir. 1994).

Union Pacific also refers briefly to Brooks v. Union Pacific Railroad Co., 620 F.3d 896 (8th Cir. 2010), which involved an acute injury, but the court there did not hold that an expert was required to eliminate other theories of causation. The issue in that case was that the plaintiff “did not point to a specific incident that injured him,” and in the absence of an “obvious origin” for the claimed injury, the court simply recognized that expert testimony was necessary and that the defendant was entitled to summary judgment because the plaintiff had not made any timely expert disclosures. Id. at 899–900.

We are not aware of any FELA case arising out of an acute injury in which an expert was held to the burden of excluding other causes for the plaintiff's claimed medical condition. In the words of the charge that was submitted here, Gozan merely had the burden of showing that the negligence of Union Pacific “played a part, no matter how slight, in bringing about or causing” his claimed injury. Measuring the evidence under the charge as given, and viewing that evidence in the light most favorable to the jury's decision, we conclude that the evidence is sufficient to support a finding of a casual nexus between the accident and Gozan's myofascial pain syndrome.

IV. DAMAGES

In a personal injury case, the plaintiff must prove both the existence and the amount of his damages. See In re Liberty Cnty. Mut. Ins. Co., 679 S.W.3d 170, 174 (Tex. 2023) (orig. proceeding) (per curiam). Union Pacific challenges whether Gozan satisfied these burdens, arguing both that there is no evidence to support certain categories of damages, or alternatively, that the amount of damages is excessive.

In a “no evidence” challenge, we review the evidence under the same legal sufficiency standard discussed above. See City of Keller, 168 S.W.3d at 810. In an excessiveness or factual sufficiency challenge, we consider and weigh all of the evidence, not just the evidence that supports the jury's finding, and we decide whether the challenged finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Maritime Overseas Corp., 971 S.W.2d at 406–07.

A. Future Medical Expenses

To recover an award for future medical expenses, the plaintiff has the burden of showing a reasonable probability that such expenses will be incurred in the future, and the probable cost of such expenses. See Gunn v. McCoy, 489 S.W.3d 75, 112 (Tex. App.—Houston [14th Dist.] 2016), aff'd, 554 S.W.3d 645 (Tex. 2018). The amount of the award is committed to the sound discretion of the finder of fact, which may extrapolate the amount of future damages from proof of other matters, such as the nature of the plaintiff's injuries, the medical care rendered before trial, and the plaintiff's condition at the time of trial. See McDaniel v. Dindy, 673 S.W.3d 24, 39 (Tex. App.—Fort Worth 2023, no pet.).

In this case, evidence of Gozan's future medical expenses came chiefly from the life care planner. She prepared a seventy-eight page document containing her recommended life care plan, which supposedly included a discussion of her methodology, but the document itself was never admitted into evidence. In fact, Gozan affirmatively declined to offer it into evidence.

The life care planner testified about her findings instead. She believed that Gozan would need medical care for the remainder of his life, which she projected would last for an additional twenty-six years. And she projected that the cost of that care would be $1,519,821.67. That figure is the aggregate of the following subcategories of care: physician services ($1,240,048.63); routine diagnostics ($92,232.85); medication ($5,216.42); rehabilitation services ($150,821.13); equipment and supplies ($4,853.10); environmental modifications ($14,400); and acute care ($12,249.54).

Though the life care planner granulated her projection with these various subcategories, the jury was asked to determine the total cost of Gozan's future medical expenses, without any further subcategorization. The jury found that such expenses amounted to an even $1 million, which Union Pacific now challenges on both legal and factual sufficiency grounds.

We recently explained that the evidence is legally sufficient to support an award of future medical expenses so long as there is more than a scintilla of evidence to show that the plaintiff, in all reasonable probability, will incur some amount of medical costs in the future, even if those costs are for items as ordinary as over-the-counter pain medications. See Exxon Mobil Corp. v. Brown, 729 S.W.3d 625, 656–57 (Tex. App.—Houston [14th Dist.] 2026, no pet.). Gozan testified that he takes such over-the-counter medications several times each day to manage his headaches. The life care planner included the costs of those medications in her life care plan. She also testified that Gozan should receive topical gels and prescription muscle relaxers. Although Union Pacific has made many arguments directed at various aspects of the life care plan, Union Pacific has not specifically challenged the subcategory for medication costs, nor has Union Pacific suggested that the testimony about Gozan's use of over-the-counter medication was incompetent or lacking in probative value. Viewing that testimony in the light most favorable to the jury's decision, we conclude that there is legally sufficient evidence to support a finding regarding the existence of some amount of future medical expenses.

The thrust of Union Pacific's next argument is that, even if there is evidence to support a finding as to the existence of future medical expenses, there is no probative evidence as to the probable cost of those expenses.

The only evidence of cost came from the life care planner, who testified that Gozan's future medical expenses amounted to more than $1.5 million. The jury plainly did not credit the entirety of that amount, as it only awarded Gozan an even $1 million. But in the absence of more granulated findings, there is no way to discern how the jury arrived at this round figure. Nevertheless, we can reasonably deduce that the figure must have included some portion of the life care planner's subcategory for physician services since the remaining subcategories, when combined and credited in full, amounted to less than $300,000.

The life care planner testified that her subcategory for physician services had a projected cost of more than $1.2 million, and that “over $1.1 million” of that amount should be allocated to a lifetime of Botox injections. Union Pacific focuses on this allocation because it was far and away the largest constituent of costs in the life care plan, accounting for more than seventy-two percent of Gozan's total recommended care.

Union Pacific contends that the life care planner's opinion testimony about the Botox injections is conclusory, speculative, and unreliable because it lacked an evidentiary basis. We agree.

As an initial matter, we must observe that none of Gozan's treating physicians ever prescribed any Botox injections. The record merely contains a note from a neurologist that Botox could be considered for the treatment of Gozan's headaches if other treatments proved to be ineffective.

The neurologist did not testify during the trial, and the evidence regarding his treatment plan is not very extensive. Gozan testified that he met with the neurologist for a consultation shortly after the life care planner diagnosed him with myofascial pain syndrome. That initial office visit occurred nearly two and a half years after the date of the accident, and nearly fifteen months before the start of the trial. Gozan also testified that he met with the neurologist on one other occasion, roughly fourteen months after the first office visit, and less than a month before the start of the trial.

The note from the first office visit reflects that the neurologist prescribed Gozan with an oral medication for headaches and that he also injected Gozan with an occipital nerve block. The note ends with the following plan regarding that nerve block: “If not effective, consider Botox or anti-CGRP monoclonal (such as Aimovig, Ajovy, or Emgality).”

The note from the other office visit reflects that the previous nerve block “lasted for up to a couple of months.” The plan at the bottom of the note then ends with a series of sentence fragments: “Occipital nerve blocks again. Consider Botox or anti-CGRP monoclonal (such as Aimovig, Ajovy, or Emgality). Would like to try Botox.”

The note does not reflect whether the neurologist actually injected Gozan with another occipital nerve block. Nor does it specify whether the desire to try Botox belonged to the neurologist, to Gozan, or to both.

Gozan was a patient of the neurologist for more than a year, but the record only reflects two office visits during that entire period, and not once during that period did the neurologist ever provide him with Botox or one of the other injectable alternatives mentioned in his note. In our view, the bare note from the neurologist to “consider” Botox does not support a reasonable probability that Gozan will need or incur such treatment for the rest of his life.

In a post-submission brief, Gozan suggests that Botox injections are needed as the next form of treatment because “multiple witnesses” testified that his pain has not been controlled by the “nerve blocks.” But Gozan only cites to the testimony of two witnesses, and neither offers any support for his claim. The first witness was the pain management doctor, who described the epidural steroid injections that provided temporary relief in the treatment of his tailbone. The second witness was his wife, who made general references to “injections” in a contemporaneous discussion of Gozan's coccydynia. Neither witness specifically addressed the ineffectiveness of any occipital nerve blocks used to treat Gozan's headaches.

In the same post-submission brief, Gozan also asserts that the life care planner recommended the Botox injections “in addition to the nerve blocks and other conservative treatment she listed in her life care plan.” But Gozan does not provide any record citations at all in support of this claim for a dual course of treatment.

To be sure, the life care planner testified that Gozan “needs it,” referring to the Botox injections. But despite being a medical doctor herself, the life care planner denied having a doctor-patient relationship with Gozan. Also, she did not consult with any of Gozan's treating physicians, and she conceded that she was uncertain how Gozan would even respond to Botox.

The life care planner defended her recommendation by asserting that the FDA had approved Botox for the treatment of headaches within the past fifteen years. But to her own knowledge, the life care planner was unaware of any long-term studies about how frequently patients should receive Botox. She analogized to patients suffering from spasticity following spinal cord injuries, who receive Botox every three months, or four times per year, and she suggested that Gozan should be treated with that same level of frequency (even though that frequency is much greater than Gozan's past treatment with occipital nerve blocks).

The life care planner did not provide any additional calculations in her testimony. But we can deduce that if she projected 104 Botox injections over the course of Gozan's lifetime (26 years × 4 injections per year), and if we assumed further for the sake of simplicity that the costs were to remain constant over that entire period and that the lifetime expenditure would exceed $1.1 million, just as the life care planner had claimed, then the cost per injection would be no less than $10,576.92 ($1,100,000 ÷ 104).

There is no evidentiary basis to account for these substantial numbers. The life care planner indicated that Gozan would need more than fifty-five units of Botox at each injection, but she did not give a probable range for the amount of units that might be expected, nor did she identify the average cost per unit of Botox. Instead, she referred to her life care plan, which was neither offered nor admitted into evidence, and she said that the amounts should be “fluid” to allow for adjustments over time.

The life care planner did not consider any of the past costs of Gozan's other treatments, like his occipital nerve blocks. Her position was that “the past does really not impact the future.” She agreed that her future projections were “hypothetical” and she opined that these projections “don't need to be tethered in historical treatments.”

The life care planner acknowledged that Gozan's primary complaint—and “the worst thing he's dealing with”—is the pain in his tailbone. Yet the life care planner allocated a supermajority of her projected future costs to managing a secondary complaint of headaches with a treatment that none of Gozan's doctors has yet prescribed or opined is medically necessary.

“The evidentiary value of expert testimony is derived from its basis, not from the mere fact that the expert has said it.” Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820, 829 (Tex. 2014). The life care planner may have provided a factual basis for her cost projections in her written life care plan, but that document was not in evidence, and her testimony regarding those costs amounted to pure ipse dixit, at least regarding the Botox injections. We conclude that this testimony had no probative value and could not be used to support the jury's finding as to the amount of medical expenses that Gozan will probably incur in the future. Cf. Critical Path Res., Inc. v. Cuevas, 561 S.W.3d 523, 563 (Tex. App.—Houston [14th Dist.] 2018, pet. granted, judgm't vacated w.r.m.) (holding that an award of future medical expenses was excessive and lacked factually sufficient evidence because it was impermissibly based on speculative complications and costs).

When the existence of damages is supported by legally sufficient evidence, but the amount awarded lacks factually sufficient support, our typical remedy is to reverse the trial court's judgment and remand the case for a new trial, although we also have the discretion to suggest a remittitur. See Exxon Mobil Corp., 729 S.W.3d at 652. Neither party has suggested a possible amount for a remittitur in the event that we were to conclude that there is insufficient evidence to support the award for future medical expenses. We decline to suggest a remittitur in this case.

Because liability was contested below, we cannot order a separate trial on unliquidated damages alone. See Tex. R. App. P. 44.1(b). Therefore, a new trial must be ordered for all categories of damages for which the evidence is legally sufficient. To determine the scope of remand, we now address Union Pacific's remaining legal sufficiency challenges, but not its remaining factual sufficiency challenges, or its other challenges regarding discounted present value, the maximum recovery rule, and unsubstantiated anchoring. See Tex. R. App. P. 47.1; Serv. Corp. Int'l v. Guerra, 348 S.W.3d 221, 233 (Tex. 2011) (declining to consider whether an award was excessive because a remand was required for other reasons).

B. Mental Anguish

The jury awarded Gozan $40,000 for his past mental anguish and $52,000 for his future mental anguish. Union Pacific challenges both of these awards.

To support the two awards, Gozan had the burden of proving that his mental anguish has caused, and will continue to so cause into the future, either (1) a substantial disruption in his daily routine, or (2) a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger. See Bennett v. Grant, 525 S.W.3d 642, 648 (Tex. 2017). He also had the burden of producing evidence describing the nature, duration, and severity of his claimed mental anguish. See Parkway v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995).

There was evidence that Gozan experienced a substantial disruption in his past daily routine, insofar as he was unable to return to work for more than seven months. But the evidence indicated that the cause of that disruption was the underlying accident and Gozan's desire to attend physical therapy. There was no evidence that his routine was substantially disrupted because he was suffering from mental anguish.

Gozan suggests in his brief that he suffered compensable mental anguish in the past because “his whole life had been turned upside down by pain.” He also refers to evidence that his pain has prevented him from doing things he once enjoyed, like exercising and playing with his son. But these points correspond with separate categories of damages, like pain and suffering, and physical impairment. Because the charge instructed the jury to “not compensate twice for the same loss,” these points cannot support a recovery for past or future mental anguish. See Katy Springs & Mfg., Inc. v. Favalora, 476 S.W.3d 579, 595–96 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (“Because the jury provided separate awards for physical pain and suffering, physical impairment, and mental anguish, evidence related to [the plaintiff's] physical pain and suffering and physical impairment is not relevant to the jury's award of mental anguish.”).

Gozan also refers to evidence that he feels “humiliated” by the thought that his neighbors can see his wife doing all of the gardening work by herself because he is unable to assist her. Relatedly, he refers to evidence that he feels humiliated or frustrated by having to carry a pillow for his tailbone, or a massage gun for his tight muscles. But this evidence amounts to mere vexation or embarrassment. Gozan provided none of the details regarding the nature, duration, and severity of his claimed anguish to show that he has endured the high degree of mental pain and distress needed to support his award. See Serv. Corp. Int'l, 348 S.W.3d at 232 (holding that expressions of frustration were legally insufficient).

Gozan briefly mentioned during the trial that he experienced depression after the accident, but he did not describe the extent of that depression or testify about any measures he had taken to treat it. The neurologist also wrote in his notes that Gozan “feels sad at time[s],” and that Gozan occasionally has nightmares and trouble staying asleep. Gozan did not argue in his brief that any of this evidence supports the jury's decision, but even if he had, we would still conclude that, absent more details, the evidence was legally insufficient as to both the past and future awards. Id. (plaintiff's statement that “I have had lots of nights that I don't sleep just thinking” did not demonstrate compensable mental anguish); Gunn Infiniti, Inc. v. O'Byrne, 996 S.W.2d 854, 861 (Tex. 1999) (“Simply because a plaintiff says he or she suffered mental anguish does not constitute evidence of the nature, duration, and severity of any mental anguish that is sufficient to show a substantial disruption of one's daily routine.”); Favalora, 476 S.W.3d at 598 (a doctor's conclusion that an injured plaintiff was “very depressed and could look forward to a bleak future unless he received psychiatric treatment” was not specific evidence of the lasting nature, duration, and severity of the injured plaintiff's future mental anguish).

C. Physical Impairment

The jury awarded Gozan $40,000 for his past physical impairment and $150,000 for his future physical impairment. Union Pacific only challenges the future award.

Damages for physical impairment are intended to compensate the plaintiff for the loss of a former lifestyle. See Exxon Mobil Corp., 729 S.W.3d at 652. Such losses have traditionally focused on the plaintiff's daily functions or favorite activities, such as sports, hobbies, and other forms of recreation. Id. The effect of any physical impairment must be substantial and extend beyond any pain, suffering, mental anguish, lost wages, or diminished earning capacity. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 772 (Tex. 2003).

Gozan testified that his pain has prevented him from participating in activities that he once loved, like exercising, practicing Krav Maga, and salsa dancing. Because he also testified that he was still in pain as of the time of the trial, the jury was free to determine that these losses would continue into the future.

Union Pacific suggests that these losses could not have been substantial in nature because, at least two years before trial, Gozan reported to his physical therapist that he had “no pain” and that he was able to do most activities of daily living. These points merely raise a conflict in the evidence, which the jury was entrusted to resolve on its own.

We conclude that the evidence, when viewed in the light most favorable to the jury's decision, is legally sufficient to support the existence of some amount of future physical impairment. See Favalora, 476 S.W.3d at 599 (holding that the award was supported by legally sufficient evidence where there was testimony that the plaintiff “will be unable to lift heavy weights, which will necessarily curtail his ability to work out, an activity he enjoyed before the accident”).

D. Pain and Suffering

The jury awarded Gozan $60,000 for his past pain and suffering and $390,000 for his future pain and suffering. Union Pacific challenges only the future award and primarily argues that the evidence is excessive, which is a factual-sufficiency point that we need not consider. To the best of our knowledge, Union Pacific believes that the evidence is also legally insufficient because, two years before trial, Gozan reported that he had no pain to his physical therapist.

But to recover damages for future physical pain, Gozan merely had the burden of proving by a preponderance of the evidence that he will feel physical pain in the future. See Garza v. Escamilla, 712 S.W.3d 718, 725 (Tex. App.—Houston [14th Dist.] 2025, no pet.). And as we mentioned above, Gozan testified during the trial that he was still in pain. That testimony supports the jury's finding of the existence of future pain and suffering. 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.”).

V. CONCLUSION

The trial court's judgment is reversed and the case is remanded for a new trial on Gozan's claim for negligence, including all categories of damages except past and future mental anguish, for which Gozan shall take nothing.

Tracy Christopher Chief Justice