Reversed and Remanded and Memorandum Opinion filed July 27, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-05-00520-CV
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PAULA TICKNOR, Appellant
V.
EDWARD DOOLAN, Appellee
On Appeal from the 278th Judicial District Court
Walker County, Texas
Trial Court Cause No. 22045
MEMORANDUM OPINION
This is an appeal from a jury verdict in a personal injury suit stemming from a collision between a motorist and a bicyclist. Appellant, the motorist, asks us to reverse the judgment arguing the trial court abused its discretion and caused an improper verdict by excluding all evidence of the bicyclist=s alleged intoxication. In the alternative, appellant asks us to reform the judgment to reduce the award for past medical expenses to the amount actually found by the jury, rather than the increased amount awarded by the trial court. Having concluded the trial court abused its discretion by excluding all evidence of alcohol use and that the error was harmful, we reverse and remand this case for further proceedings consistent with this opinion.
I. Factual and Procedural History
Paula Ticknor was driving to a store when she collided with bicyclist Edward Doolan. Doolan sued Ticknor for his injuries, alleging that Ticknor=s negligence caused the accident. Ticknor responded that Doolan was negligent, negligent per se, and contributorily negligent because he veered in front of her car while intoxicated. Ticknor and Doolan were the only witnesses to the accident.
Doolan filed pre-trial motions to exclude all evidence of his alcohol consumption and alleged intoxication on the grounds that Athere is no relevant and reliable evidence that causally connects alcohol consumption or intoxication to the cause of this collision . . .@. In addition, Doolan argued that the probative value of such evidence would be substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. The trial court granted Doolan=s motion. At trial, Ticknor was prevented from introducing evidence of Doolan=s alleged intoxication, including (a) Doolan=s admission that he had consumed alcohol prior to the accident; (b) the investigating officer=s personal observations that Doolan was glassy-eyed and smelled very strongly of alcohol; (c) the investigating officer=s non-expert opinion that Doolan was intoxicated; (d) the investigating officer=s expert opinion that Doolan Ahad a lot to drink;@ (e) medical records showing that Doolan had a blood-alcohol level of 98 mg/dl following the accident; and (f) the deposition testimony of Doolan=s treating physician Dr. Vivek Kushwaha (ADr. Kushwaha@) that a person with a blood-alcohol level of 98 mg/dl (or .098 g/ml) is legally intoxicated. Ticknor was also prevented from using evidence of Doolan=s alcohol use to impeach Doolan=s testimony that he had no reason to turn, stumble, lose his balance, or lose control of his bicycle.
Ten members of the jury found Ticknor seventy percent negligent and Doolan thirty percent negligent. The jury further found that $170,000.00 would fairly and reasonably compensate Doolan for past medical care. Doolan filed a motion asking the trial court to disregard this finding, and to increase the award for past medical care to $259,583.19. The trial court granted the motion, and entered judgment for Doolan in the increased amount.
II. Issues Presented
On appeal, Ticknor contends the trial court abused its discretion by excluding all evidence of Doolan=s alcohol consumption and alleged intoxication. Ticknor also challenges the trial court=s award of past medical expenses in an amount greater than that found by the jury.
III. Standard of Review
A trial court has broad discretion to determine the admissibility of evidence, and we will reverse only if that discretion has been abused, i.e., if the trial court acted without reference to any guiding principles. Keo v. Vu, 76 S.W.3d 725, 730 (Tex. App.CHouston [1st Dist.] 2002, pet. denied). To reverse a judgment based on error in the admission or exclusion of evidence, we must conclude that the error probably caused the rendition of an improper judgment. Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004).
IV. Analysis
A. Evidence of Alcohol Consumption and Intoxication is Relevant.
Evidence of alcohol consumption is relevant and admissible evidence bearing on the issues of causation and contributory negligence. Trans-State Pavers, Inc. v. Haynes; 808 S.W.2d 727, 733 (Tex. App.CBeaumont 1991, writ denied). Although evidence of intoxication, standing alone, does not establish negligence or proximate cause, it is an evidentiary fact to be considered by the jury in assessing contributory negligence. Benoit v. Wilson, 239 S.W.2d 792, 798 (Tex. 1951); see also Scott v. Gardner, 137 Tex. 628, 637, 156 S.W.2d 513, 518 (1941) (A[drunkenness] is a fact admissible in evidence as tending to prove negligence.@); Gunter v. Morgan, 473 S.W.2d 952, 954 (Tex. Civ. App.CTexarkana 1971, no writ) (evidence tending to prove that a person was impaired by the use of alcohol is admissible and may be considered by the jury when Avigilance, judgment or reactions and similar matters are at issue.@)
Here, Doolan=s Avigilance, judgment or reactions@ are at issue. Contrary to Doolan=s assertions, Ticknor does not base her allegations of contributory negligence solely on evidence of Doolan=s intoxication, but offered testimony that Doolan suddenly veered in front of her. Moreover, Doolan=s alcohol consumption prior to the accident bears on the weight afforded to his recollection of events.
In sum, because evidence of Doolan=s alcohol consumption is relevant to the claims and defenses in the case, the evidence is rebuttably presumed to be admissible. See Tex. R. Evid. 402.
B. Expert Testimony that Intoxication Caused the Accident Is Not a Prerequisite to Admissibility.
Doolan urged the trial court to exclude alcohol-related evidence because there is no Areliable evidence that causally connects alcohol consumption or intoxication to the cause of this collision . . . .@ As the record and the briefs make clear, this objection was based on the assumption that evidence of Doolan=s alcohol consumption was properly excluded if Ticknor failed to offer expert opinion testimony that Doolan=s alleged intoxication was a cause of the accident. This assumption is incorrect. No expert evidence of causation is required in this case, as causation can be proved by circumstantial evidence and inference. See Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 459 (Tex. 1992) (ANor >need [causation] be supported by direct evidence, as circumstantial evidence and inferences therefrom are a sufficient basis for a finding of causation.=@) (quoting City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex. 1987)); see also El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987) (Awe know by common knowledge that alcohol distorts perception, slows reaction, and impairs motor skills . . . .@) (emphasis added).
Doolan asked the trial court to apply the requirements governing admissibility of expert opinion testimony to the admissibility of all evidence of his alcohol consumption. Although the trial court acts as a gatekeeper in assessing the reliability of scientific methods on which an expert opinion is based,[1] such assessments are not preconditions to the admission of factual evidence of alcohol consumption, business records showing blood- alcohol levels, or non-expert opinions regarding intoxication.[2] See Missouri-Kansas-Texas R.R. Co. v. May, 600 S.W.2d 755, 756 (Tex. 1980) (AThe hospital lab report showing results of a blood-alcohol test is admissible as a business record of the hospital when the evidence shows that the record was made in the regular course of business and the other requirements of [Tex. R. Evid. 902] are met.@); Vaughn v. State, 493 S.W.2d 524, 525 (Tex. Crim. App. 1972) (AIt is elementary in Texas that one need not be an expert in order to express an opinion upon whether a person he observes is intoxicated.@); also compare Tex. R. Evid. 701 (governing opinion testimony by lay witnesses) with Tex. R. Evid. 702 (governing testimony by experts). Thus, Ticknor was not required to offer expert testimony that Doolan=s alcohol use or intoxication caused the accident in order to present such evidence.
In addition to her complaints regarding the exclusion of the factual evidence listed above, Ticknor also argues the trial court erred in excluding certain expert opinion evidence. Specifically, Ticknor contends the trial court abused its discretion by excluding certain testimony of Doolan=s treating physician, including testimony that (a) the term ETOH in the medical records refers to ethanol or alcohol; (b) a normal person who has not consumed any alcoholic beverages has an ETOH level of zero; (c) intoxication affects a person=s ability to give a proper neurologic exam and history; (d) Doolan=s documented blood-alcohol content was 98 mg/dl, or 0.098 g/ml, when tested after the accident; and (e) a person with a blood-alcohol level of 98 mg/dl, or 0.098 g/ml is legally intoxicated. Just as with the factual evidence, Doolan objected to the admission of this expert opinion evidence on the grounds that there is no Areliable evidence that causally connects alcohol consumption or intoxication to the cause of this collision . . . .@
This is not the standard for the admission of expert opinion testimony. The test for admissibility of expert testimony is instead found in Tex. R. Evid. 702: If specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. In determining whether the proffered testimony satisfies Rule 702, a trial court may consider the following non-exclusive factors: (1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique's potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses which have been made of the theory or technique. E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995). Doolan did not challenge the proffered testimony at issue on any of these bases.[3]
C. The Probative Value of Alcohol-Related Evidence Is Not Substantially Outweighed by the Danger of Unfair Prejudice, Confusion of the Issues, or Misleading the Jury.
Doolan argues that the probative value of all evidence of his alcohol use or intoxication is substantially outweighed by the danger of unfair prejudice because Athe jury would be so enraged by even [Doolan=s] use of alcohol that it would not be able to properly compare [the relative fault of the parties].@ In effect, Doolan argues that evidence regarding the use of alcohol is unfairly prejudicial per se. Doolan cites no authority in support of this argument, nor do we find this to be the case. See Goldberg v. State, 95 S.W.3d 345, 375 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d) (in balancing probative value and danger of unfair prejudice, probative value of evidence is presumed), cert. denied, 540 U.S. 1190 (2004); Trans-State Pavers, 808 S.W.2d at 732B33 (holding trial court committed reversible error by excluding testimony concerning party=s use of intoxicants when there was other evidence of negligent conduct); see also Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 756 (Tex. 2006) (stating it is within the province of reasonable jurors to conclude that one relevant fact overcomes all others).
Doolan also argues that evidence referring to a numeric blood-alcohol level would confuse and mislead the jury into applying laws that apply only to motorists charged with driving while intoxicated. We disagree. The significance of blood-alchohol levels is not limited to persons accused of driving while intoxicated as Doolan contends, nor is the statutory definition of the word Aintoxicated@ applicable only to motorists.[4] A jury that considers a person with a blood-alcohol level of 0.098 g/ml legally intoxicated would not be confused or misled; to the contrary, the jury would be correct. See Tex. Penal Code Ann. ' 49.01(2)(B) (Vernon 2003) (defining Aintoxicated@ as Ahaving an alcohol concentration of 0.08 g/100 ml or more.@). Finally, a statute defining Aintoxication@ in terms[COMMENT1] of a particular blood-alcohol concentration does not pre-determine guilt, shift the burden of proof, or cause the trial to be unfair. Reinsmith v. State, 703 S.W.2d 315, 316 (Tex. App.CHouston [14th Dist.] 1985, no pet.); see also March v. Victoria Lloyds Ins. Co., 773 S.W.2d 785, 789 (Tex. App.CFort Worth 1989, writ denied) (stating that although an expert's testimony would have enhanced the jury=s understanding of a blood-alcohol report, it was not necessary to their understanding of the test results).
Because evidence of Doolan=s alcohol use and alleged intoxication is relevant, and because the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, the trial court abused its discretion by excluding all such evidence.
D. The Erroneous Exclusion of Evidence Probably Caused an Improper Verdict.
The admission or exclusion of evidence is a matter within the trial court's discretion. Interstate Northborough P=ship v. State, 66 S.W.3d 213, 220 (Tex. 2001). In order to reverse a judgment based on error in the admission or exclusion of evidence, we must conclude that the error probably caused the rendition of an improper judgment. Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004). In order to make this determination, we review the entire record and require the complaining party to demonstrate that the judgment turns on the particular evidence admitted or excluded. Id.
Here, the only witnesses to the accident were Ticknor and Doolan. Both testified that they were both traveling in the same direction, at night, on an unlighted, two-lane highway. Beyond that point, there were significant differences in their testimony. According to Doolan, he was riding his bicycle on or just to the right of the line marking the right-hand side of a two-lane roadway at approximately 10:30 p.m. on December 19, 2002. There is no improved shoulder to the side of the road where the accident occurred. Doolan testified that his bicycle had reflectors, but no lights, and the front tire could be unlatched and removed. He testified that he had no reason to turn his bike to the left and try to cross the road, and that no reason exists that would explain why he would suddenly move to the left. According to Doolan, he did not stumble, lose his balance, or lose control, and there is no reason he would have stumbled, lost his balance, or lost control of the bicycle. He is positive he did not turn left before the collision. He testified that he does not remember the collision, but that he felt and saw Ticknor=s headlights, and felt himself being lifted up and pulled back. He awoke in the hospital days later, with injuries to his neck and back.
Ticknor testified that as she was driving, she saw Doolan riding a bicycle along the line on the right side of the rode. She slowed down to five or ten miles below the speed limit and moved to the left side of her own lane, but as she approached him, he suddenly veered to the left, in front of her car, and she did not have time to stop the car before it struck him. Ticknor testified that the car struck the bicycle on the left side of the bicycle=s front tire, and that Doolan=s body struck Ticknor=s windshield on the passenger side. Doolan landed in a parking area, and Ticknor did not know whether she drove over the bicycle. She stopped her car in the roadway and approached Doolan, but did not know what to do to assist him. She tried to attract the attention of another motorist, but was unable to do so. When the other motorist failed to stop, Ticknor drove to a nearby store and called 9-1-1. She remained at the store as instructed by the emergency dispatcher. She did not see the bicycle after the accident, and her car never left the roadway. The windshield of Ticknor=s car was broken on the passenger side, the right headlight was broken, and there was a mark near the center of the hood of the car.
Doolan also offered the expert testimony of accident reconstructionist Sergio Garibay, who testified that Ticknor=s car is approximately six feet wide, and was traveling in a lane approximately twelve feet wide. According to his measurements, the pavement deteriorated approximately seven to ten inches to the right of the lane, leaving little room outside of the roadway for a bicyclist. Garibay opined that Ticknor=s car initially contacted Doolan=s bicycle at the bicycle=s rear wheel, and that the front wheel and the seat of the bicycle became detached from the bicycle frame as a result of the impact. Following the accident, the chain was still attached to the bicycle, the spokes on the bicycle=s tires were not broken, and there was air in both tires. Garibay attributed other damage to the bicycle to its movement after the initial impact. On cross examination, Garibay agreed that it is possible Doolan was riding along the right side of the road and moved in front of Ticknor, so that Ticknor=s car struck the rear tire of Doolan=s bicycle.
The excluded evidence includes the testimony of Department of Public Safety Trooper Stephen Jeter, who responded to the scene. Jeter=s excluded testimony included Jeter=s observations that Doolan had a Avery, very, very strong@ odor of an alcoholic beverage on his breath; that Doolan=s eyes were glassy; that it was Avery apparent he had been drinking@; and that Doolan was belligerent at the scene and refused to discuss the accident with law enforcement personnel. In addition, Jeter would have offered his lay opinion that Jeter was intoxicated. Ticknor also would have offered medical records indicating that Doolan had a blood-alcohol concentration of 98 mg/dl at the hospital following the accident, and Doolan=s own testimony admitting that he drank approximately four beers earlier that day. Additionally, Ticknor would have offered the deposition testimony of Dr. Vivek P. Kushwaha (ADr. Kushwaha@), Doolan=s treating physician, that the designation AETOH@ in Doolan=s medical records indicates the presence of alcohol, and that intoxication can affect a patient=s ability to give a history and to respond properly to a neurologic exam. Dr. Kushwaha would have testified that a person with a blood-alchohol content equal to that shown in Doolan=s test would be legally intoxicated, and that alcohol abuse is medically relevant.[5] Finally, Ticknor would have offered the testimony of Doolan=s supervisor that Doolan would have been terminated if he had appeared for work intoxicated.
Based on the foregoing, we conclude that the exclusion of evidence of Doolan=s alcohol use and alleged intoxication probably resulted in an improper verdict. The key issue below was the determination of whether Doolan veered to the left in front of Ticknor just before the accident. The case was decided based in large measure upon the weight given to the testimony of the two parties, including Doolan=s testimony that there is no reason he would have veered in front of Ticknor. The verdict was reached by the minimum number of jurors, and their allocation of fault between the two parties demonstrates that the ten jurors who reached agreement did not fully accept either party=s version of events. Under these circumstances, it is probable that the jury would have reached a different allocation of liability had it had been allowed to consider the excluded evidence.
V. Conclusion
We hold the trial court abused its discretion in excluding all evidence of Doolan=s alcohol use and intoxication, and this error probably caused the rendition of an improper verdict. Therefore, we reverse and remand this cause for further proceedings consistent with this opinion.
/s/ Eva M. Guzman
Justice
Judgment rendered and Memorandum Opinion filed July 27, 2006.
Panel consists of Chief Justice Hedges and Justices Yates and Guzman.
[1] See Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998) (Afundamental requirements of reliability and relevance are applicable to all expert testimony offered under [Tex. R. Evid. 702] . . . All expert testimony should be shown to be reliable before it is admitted.@)
[2] Although the trial court granted several motions excluding expert testimony, those rulings were not appealed. Doolan did not move to exclude the expert testimony of Dr. Kushwaha.
[3] Doolan repeatedly states that Aat the Daubert/Robinson pre-trial hearings,@ Ticknor failed to offer expert evidence that intoxication was a cause of the collision. This argument is without merit. The hearings to which Doolan refers were held to decide Doolan=s motions to exclude the expert opinion testimony of Department of Public Safety Trooper Stephen Jeter, of Michelle Marie Hebert, M.D., and Darrel Wells, M.D. The rulings on those motions have not been appealed. More importantly, the hearings have no application to the challenged evidence. Jeter=s proffered testimony was not Aexpert testimony,@ and none of the evidence at issue was the subject of a ADaubert/Robinson challenge.@
[4] Tex. Penal Code Ann. ' 49.02(a) (Vernon 2003).
[5] Dr. Kushwaha=s expert qualifications to testify were not challenged.
[COMMENT1]Doolan improperly conflates Alegal intoxication@ with guilt of illegally operating a motorized vehicle. One can be legally intoxicated operating a bicycle and at the same time be not guilty illegally operating a motor vehicle.