a concurring and dissenting opinion.
*923ANNE GARDNER, Justice, concurring and dissenting.
I concur in the majority’s reversal of the exemplary damages award; however, I respectfully dissent from the majority’s affir-mance of the judgment on Appellees’ negligence claims.
Introduction
It was undisputed that the Yukon crossed over into the gravel truck’s own lane. It was undisputed that the Yukon struck the gravel truck in the gravel truck’s own lane. The “gouge mark,” which all experts agreed was made by impact of the Yukon with the gravel truck, was admittedly located in the gravel truck’s own lane. And it was undisputed by all experts that the gouge mark in the gravel truck’s lane was made by the Yukon, not the gravel truck. Yet in this suit for wrongful death and injuries to the driver and occupants of the Yukon, we have a verdict and judgment based on negligence of the gravel truck’s driver, operator, and owner. How can that be?
Solely through testimony of their accident reconstruction expert, Dr. Kurt Mar-shek, Appellees espoused their theory that it was the gravel truck that somehow crossed over into the Yukon’s lane first, which must have somehow caused the Yukon’s driver, Kim Hughes, to respond defensively by veering the Yukon into the gravel truck’s lane, that the gravel truck must have made a hard right back into its own lane to avoid the Yukon, and that the Yukon nevertheless then sideswiped the gravel truck — about a foot inside the gravel truck’s lane — at the second axle of the rig, careened along the side of the trailer, struck its fourth axle, and then spun into the path of the F-250 pickup truck. The F-250 broadsided the Yukon, killing all but one occupant.
As the majority notes, it was the opinion of Appellees’ expert, Dr. Marshek, based upon the angle of the two and one-half foot long gouge mark on the gravel truck’s side of the road, that the gravel truck was returning to its lane of travel at the angle represented by the gouge mark when it was struck by the Yukon. Acknowledging that the gouge mark was made by the Yukon, not the gravel truck, Dr. Marshek attempted to show that the mark’s angle reflected the angle of the gravel truck because the truck was the larger and more dominant force, so that the Yukon would have taken on the angle of the gravel truck as it collided with the truck. In his opinion, the gravel truck’s angle of travel necessarily lined up with the angle of the gouge mark, which indicated to him that the truck was coming back from the wrong lane at the moment of impact.
Five eyewitnesses were in vehicles traveling in the vicinity of the accident, including the gravel truck driver, the driver of a vehicle that turned off the road a half mile in front of the gravel truck, and three occupants of two other vehicles traveling behind the gravel truck immediately before the collision. Not a single one of those witnesses saw the gravel truck in the wrong lane, as Dr. Marshek described. It is his testimony alone that places the gravel truck over in the Yukon’s lane of travel. Dr. Marshek simply rejected the testimony of the four totally disinterested witnesses as well as the gravel truck driver, and Appellees unfairly discredited the gravel truck driver by improper and highly prejudicial proof that he was an illegal alien. For these reasons, among others, I would hold that this judgment cannot stand.
Reliability of Dr. Marshek’s Testimony
I disagree for at least three reasons with the majority’s conclusion that Dr. Marshek’s testimony meets the require*924ment of reliability for admissibility. First, there was no evidence Dr. Marshek followed any recognized protocol or methodology accepted in the field of accident reconstruction in making his assumptions or reaching his conclusions. Second, his conclusions were based upon critical assumptions unsupported by evidence. Third, his assumptions and conclusions varied materially from the physical evidence and testimony.
Dr. Marshek testified he used standard times for braking, steering reaction times, and speeds as recorded by the “black boxes” of the vehicles for the five seconds prior to impact to determine the pre-im-pact travel paths of the Yukon and gravel truck. But the record is devoid of evidence that Dr. Marshek conducted any calculations, tests, or methodology recognized in the field of accident reconstruction in assuming that the gouge mark was the point of first impact from which to measure his distances and determine the locations of the vehicles before impact. Likewise, Dr. Marshek cited no methodology or calculations for his conclusion that the gouge mark angle showed the angle of the gravel truck upon first impact, particularly since, as he acknowledged, the gouge mark was not made by the gravel truck but by the Yukon. Additionally, as Appellants’ expert, John Painter, pointed out, Dr. Marshek did no calculations or testing on which to base his assumptions that the left front clearance pole fell off the truck as the result of deceleration rather than initial impact with the Yukon’s side mirror, did no calculations or testing to determine the angles of the Yukon and gravel truck upon impact, and did no calculations or testing to reach his conclusion that the gravel truck could not have been in its own lane and ended up where it did.1
Appellants specifically complained in their brief that Dr. Marshek did no calculations to support his theory that the clearance pole was dislodged by the truck’s deceleration or that the gravel truck could not have been in its own lane, and urged that his theory was shown to be “scientifically invalid” by Painter’s computer simulation. Painter stated, “[i]n short, Dr. Marshek followed no protocol recognized by the science of accident reconstruction.” 2 Therefore, the issue of the scientific reliability of Dr. Marshek’s testimony was clearly properly preserved and raised on appeal. The majority opinion does not address Dr. Marshek’s lack of methodology, testing, or techniques at all. The majority should have reached and ruled on this issue. Had it done so, it could only conclude Dr. Marshek’s testimony was unreliable.
The very cases cited by the majority that demonstrate this state’s “long history of allowing accident reconstruction experts to testify regarding how an accident occurred” also recognize that the expert must rely on and utilize principles recognized in that field. See, e.g., Chavers v. State, 991 S.W.2d 457, 461 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd) (noting *925importance of whether officer’s testimony properly relies on and utilizes principles recognized in accident reconstruction); Waring v. Wommack, 945 S.W.2d 889, 893 (Tex.App.-Austin 1997, no writ) (observing that expert explained laws of physics supporting the tests he performed, referred to textbooks and literature that detailed his theory of accident reconstruction, and testified that his tests had nonjudicial uses); N. Dallas Diagnostic Ctr. v. Dewberry, 900 S.W.2d 90, 95 (Tex.App.-Dallas 1995, writ denied) (noting trial court must focus on validity of principles and methodology underlying testimony); Thomson v. Rook, 255 F.Supp.2d 584, 586-87 (E.D.Tex.2001) (allowing expert opinion based upon standard equations followed by accident reconstruction experts and standard rates of acceleration as reported in texts, but excluding expert opinion for which plaintiffs provided no evidence of articles, books, or other experts in automobile accident reconstruction field to validate methodology used to calculate delay in reaction time, causation, or proportion of responsibility).
As the supreme court recently reiterated, although the Robinson factors are not always useful in evaluating expert opinion in automobile accident cases, we must still turn to them initially for guidance. Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 801 (Tex.2006) (analyzing reliability of expert opinion in light of six-factor test under E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex.1995)). As to the first and third Robinson factors, the record here, as in Cooper, is devoid of any scientific testing or peer-reviewed articles to confirm Dr. Mar-shek’s hypothesis that the gouge mark necessarily represented the point of impact of the vehicles or the path of the gravel truck returning from the wrong side of the road. See id.; see also Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 912 (Tex.2004) (holding expert testimony in auto accident case unreliable among other reasons because expert did not conduct tests or cite studies to support theory).
Likewise, Dr. Marshek’s testimony does not meet the fourth, fifth, or sixth Robinson factors because he did no testing of his theory and cited no articles or studies to support his analysis and there was no proof that his underlying theory was based upon any methodology that had achieved general acceptance in the scientific community. See Cooper, 204 S.W.3d at 801. As to the fourth factor, the extent to which the methodology or technique relies on subjective interpretation of the expert, Dr. Marshek merely used an arbitrarily chosen initial impact site, i.e., a gouge mark, from which he then measured distances and theorized as to what action each driver may have taken that caused the collision. See id. (noting expert offered no testimony that either the scientific community or his own calculations had determined what amount of wax was required to cause a tire failure); Ramirez, 159 S.W.3d at 904 (noting expert failed to perform calculations in support of theory); Robinson, 923 S.W.2d at 559 (holding expert’s testimony unreliable absent knowledge of what amount of contaminant would damage trees).
Expert testimony is not rehable “if there is too great an analytical gap between the data on which the expert relies and the opinion proffered.” Cooper, 204 S.W.3d at 800 (citing Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 727 (Tex.1998)); see also Robinson, 923 S.W.2d at 556 (concluding expert’s testimony unreliable even when data is sound if conclusions drawn are based upon flawed methodology). In concluding their direct examination of Dr. Marshek, Appellees asked a few general housekeeping questions confirming generally that he had published articles on accident reconstruction, including critical speed analysis and lane change maneuvers, *926and that his analysis was based on his “education, training, and experience, and reasonable engineering probability.” However, as he provided no explanation as to what training, what education, what articles, what experience, or what engineering principles he relied upon, if any, in reaching his opinions in this case, those magic words are woefully insufficient. See Cooper, 204 S.W.3d at 806. Despite Dr. Marshek’s qualifications, Appellees’ failure to establish that he used any recognized methodology, testing, peer-reviewed articles, or principles accepted by the accident reconstruction community renders his expert testimony unreliable.
I also disagree with the majority’s holding that Appellants’ complaints are merely disagreements as to facts in dispute that go to the weight of the testimony. Factual support was totally lacking for Dr. Mar-shek’s assumptions. Dr. Marshek testified that he relied only on the physical evidence of the single gouge mark and the skid marks of the gravel truck after it began braking and as it came to a stop on the right shoulder of the road, together with selected portions of the driver’s statement. Dr. Marshek described no factual basis for his assumption that the gouge mark from which he calculated the distances was made by the bare rim of the front left wheel of the Yukon upon impact with the second axle of the truck.3 Dr. Marshek never testified to any examination or description of either the left front or left rear wheel rims of the Yukon, both of which had blown-out tires. Additionally, the record reveals no factual support for Dr. Mar-shek’s conclusion that the gouge was made by impact with the second axle rather than the fourth axle, which he agreed showed evidence of a more severe impact from the Yukon. Dr. Marshek agreed that it was possible that the gouge could have been made by impact with the fourth axle but rejected that possibility simply because it did not agree with his diagram.
Appellants’ expert, John Painter, also pointed out that Dr. Marshek had no physical evidence to support his theory of the angles at which the vehicles collided and did no calculations on his theory that the gravel truck could not have been in its own lane and ended up where it did. Finally, Dr. Marshek was not designated as a human-factors expert and provided no opinion that the circumstances supported the probability that Kim Hughes engaged in a “fake-left” defensive maneuver to cause the Yukon to cross into the gravel truck’s lane.4
Scientific testimony is unreliable if it amounts to no more than a subjective belief or unsupported speculation. Cooper, 204 S.W.3d at 800 (citing Robinson, 923 S.W.2d at 557). An expert’s “bare opinion will not suffice. It is not so simply because ‘an expert says it is so.’” Volks*927wagen of Am., Inc., 159 S.W.3d at 906. (quoting Gammill, 972 S.W.2d at 726). A claim will not stand on the mere ipse dixit of the expert alone. Burrow v. Arce, 997 S.W.2d 229, 235 (Tex.1999). Dr. Mar-shek’s theory that the gravel truck was on the wrong side of the road depended solely on factually unsupported assumptions as to how the gouge mark was made, that its angle reflected the position of the gravel truck, and that the Yukon thus crossed into the gravel truck’s lane as a defensive maneuver. These assumptions were based on his own subjective interpretations and hypotheses of what might have happened and nothing more. For this additional reason, his opinions cannot pass the reliability test.
Moreover, Dr. Marshek disregarded evidence that conflicted with his theory, including evidence of damage to the clearance pole of the gravel truck, damage to the driver’s side of the cab such as scrape marks with paint marks the color of the Yukon, and the existence of various other scrapes and marks on the pavement that were aligned at different angles. Dr. Mar-shek also acknowledged that the Yukon’s left front wheel was “pushed ... straight back” by the force of the second axle of the gravel truck.5 Dr. Marshek offered no explanation as to why a gouge mark made by the wheel rim as it was being pushed or driven back under the Yukon would not have differed from the trajectory of the body of that vehicle. And, contrary to the majority opinion, he did agree that there would have been some “restitution” or bounce as the Yukon struck the second axle, but stated that the amount was impossible for him to calculate.
Dr. Marshek’s opinion that the gravel truck crossed into the Yukon’s lane also varied materially from the contrary testimony of five occupants of the vehicles in the area of the collision. Ricardo Rodriguez, the driver of the gravel truck, consistently testified he was “100 percent sure” he never crossed the center line but, rather, the Yukon crossed the line and hit him. While Rodriguez was a party and Appel-lees attacked his credibility as discussed below, the other four persons were independent and disinterested witnesses. Jerry Larance, driver of the F-250 pickup truck that was only one-eighth of a mile behind the gravel truck and broadsided or “T-boned” the Yukon when it spun sideways in front of him after sideswiping the gravel truck, testified he recalled seeing every vehicle on the road and “if that truck would have been in the other lane, I would have seen that truck. I mean I wasn’t sleeping driving down the road.... It [doesn’t] take a rocket scientist to know that the truck was in its lane.”
George Wilton, Larance’s passenger in the pickup truck, testified that he was watching the gravel truck ahead of them and that it never left its lane. Moreover, he testified that he also saw the Yukon in its own lane before it got to the truck but that he could not see it strike the truck “for the truck,” i.e., his view of the Yukon was blocked by the truck. Dr. Marshek theorized from this testimony that the truck moved into the wrong lane, blocking Wilton’s vision, but an equal inference is that the Yukon moved into the truck’s lane so as to be hidden from Wilton’s sight. Therefore, that he could not see the Yukon when it struck the truck is no evidence that the truck was in the wrong lane.
Cody Jobe, who had turned into a driveway a half mile in front of the gravel truck, *928testified that he glanced in his rearview mirror and noticed the gravel truck driving properly in its own lane. He likewise did not see the gravel truck doing anything wrong. Michelle Windham, who was hurrying in an attempt to pass Larance’s pickup truck immediately before the accident, testified she was looking ahead into the oncoming traffic and that she would have noticed if the gravel truck had swerved into the opposite lane but that she never saw it do so. Dr. Marshek rejected the descriptions of these witnesses because, in his opinion, they either were not looking at the truck or did not see it at the critical moment.
Dr. Marshek used Rodriguez’s statement that he steered “hard” right for one, two, or three seconds before the collision to support Dr. Marshek’s theory that the gravel truck had to be returning from the Yukon’s lane to -end up at the gouge mark as the initial point of impact. Dr. Marshek explained that how hard someone steered to the right to move a certain distance in that direction could be “measured” different ways, either by the steering wheel or the angle of the front tires, or in terms of the “G” rate. At a “given” G rate and a given speed, he could determine how far to the right the gravel truck would have moved in one, two, or three seconds. Using a G rate of .32, and if the gravel truck had been in its own lane when Rodriguez began turning, the gravel truck would have missed the impact point by six feet. Therefore, he concluded, the gravel truck must have started turning right from the other lane in order to end up at the impact point in the time Rodriguez testified he was turning the rig to the right. The problem with that theory is that no one knows when or how hard Rodriguez steered to the right.
As even Dr. Marshek admitted on cross-examination, “nobody knows what the braking was. Nobody knows what the steering was. Nobody knows what the steering was for the — for the rock truck, so how can you put steering inputs into something you know nothing about; it’s all total speculation.” Interestingly, using Dr. Marshek’s calculations, if an eighteen-wheeler tractor-trailer rig, loaded with rocks and weighing 84,000 pounds, managed to veer into the left lane and then return to the right lane within a span of three seconds without a rollover, such a remarkable maneuver surely would have been observed by at least one of the occupants in the vehicles in front of or behind it.6
Dr. Marshek acknowledged it was also possible that the gouge mark was made by the rim of the Yukon’s left rear tire connecting with the gravel truck’s fourth axle, which he agreed sustained greater damage than the second axle. But in his opinion that was impossible because that impact did not make a gouge. In other words, he rejected that possibility simply because it conflicted with his own theory. Dr. Mar-shek even admitted on cross-examination that the two-and-a-half-foot-long gouge mark could not have been made at the instant of initial impact because it would have taken about one eighth of a second for the tire damage to expose the bare rim that made the gouge, during which time the Yukon would have traveled eleven feet.
“When an expert’s opinion is based on assumed facts that vary materially from *929the actual, undisputed facts, the opinion is without probative value and cannot support a verdict or judgment.” Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995). Because Dr. Marshek’s opinions varied materially from the undisputed testimony from all eyewitnesses and the physical evidence, his testimony was unreliable.
I would hold that the trial court abused its discretion in admitting his opinions for all three of the reasons discussed above. Dr. Marshek was the only witness who testified that the gravel truck crossed over the center line into the wrong lane. Because his testimony is unreliable, it was inadmissable, and there is legally insufficient evidence to support Appellees’ claim that the truck driver was negligent and proximately caused the occurrence in question. Therefore, I would reverse and render judgment in favor of Appellants.
The Truck Driver’s Immigration Status
After eliminating all Hispanics from the jury panel, Appellees sought from the beginning of trial to impress the jury with the fact that Ricardo Reyna Rodriguez, the gravel truck driver, was an illegal Mexican alien. Appellees’ very first witness was Rodriguez, whom they put on as an adverse witness through his video deposition. Counsel for Appellees asked him if he would prefer to be questioned in English or Spanish, and proceeded to interrogate him with questions about his years of driving experience in Mexico and his illegality as an immigrant in the United States, both past and present.
Appellees’ counsel did not mention, much less did they emphasize, Rodriguez’s illegal status in closing argument. They did not need to. Trial lawyers learn early that the most vital impressions on a jury are made in the first few moments of a trial. Moreover, they made sure the jury did not forget. Throughout the trial, at least forty references to Rodriguez’s status as an illegal alien were made, through questioning of Rodriguez as well as other witnesses, reminding the jurors of Rodriguez’s prior residence, his driving experience, and his years as a driver in Mexico, his prior arrest for illegal entry and deportation to Mexico, his use of a false social security number to obtain his commercial Texas driver’s license in 1996, his making of false statements to prospective employers regarding his immigration status, and even his current status as an immigrant while continuing to drive for TXI. Additionally, although not noted by the majority, Appellants complain that Appellees were allowed to introduce evidence of Rodriguez’s conviction under 8 U.S.C. § 1325(a)(3) for illegal entry into the United States.
Whether Rodriguez was an illegal immigrant had nothing to do with whether he crossed over the center line of Highway 114 before the collision. His immigration status was equally irrelevant on the issues of his driving experience, which was considerable, and his driving record, which was clean, in connection with Appellees’ negligent entrustment and negligent hiring claims. Appellants tied this evidence to Rodriguez’s use of a false social security number to obtain his commercial driver’s license in Texas. But whether he had a false social security number was likewise irrelevant. Indeed, the majority agrees that neither Rodriguez’s status as an illegal alien nor his use of a fake social security number to obtain a commercial driver’s license created a risk foreseeable to TXI that he would negligently drive the gravel truck, and this evidence therefore had no causal nexus to the negligence finding against it.
Appellees sought to use Rodriguez’s illegal immigration status as well as his prior *930conviction and deportation, his false statements to prospective employers, and his use of a false social security number solely to impeach his credibility. The majority agrees that this evidence was inadmissible for impeachment because it constituted specific instances of misconduct, the use of which is prohibited under Texas Rule of Evidence 608(b). But the majority holds that this evidence was nevertheless somehow admissible as admissions of a party under rule 801(e)(2)(A). I disagree. See Tex.R. Evid. 801. The specific section cited by the majority defines admissions of a party opponent. See Tex.R. Evid. 801(e)(2)(A). None of the evidence offered consisted of prior admissions by Rodriguez that were inconsistent with any of his trial testimony. Appellees obviously and expressly offered this evidence to show specific instances of conduct for the purpose of impeaching of Rodriguez’s credibility because he was the most critical eyewitness to the accident. The evidence was clearly inadmissible under rule 608(b).
The only exception to the rule disallowing evidence of specific instances of conduct for impeachment is evidence of conviction of a crime as provided by rule 609. That rule allows evidence of a commission of a crime for impeachment only if the conviction is not more than ten years old, the crime is a felony or involves moral turpitude, and the trial court finds that the probative value outweighs its prejudicial effect. Tex.R. Evid. 609(a). Rodriguez’s conviction was for a misdemeanor, not a felony. See 8 U.S.C.A. § 1325(a) (2000) (reciting punishment of six months in jail for first conviction). Appellees have not argued otherwise on appeal, nor do they argue that his illegal entry into the United States was a crime of moral turpitude. Therefore, the evidence of his conviction was inadmissible under rule 608(b).
Additionally, the attempted impeachment was on a matter totally collateral to any issue at trial and was therefore improperly allowed for that further reason. It is well settled that impeachment on a collateral matter is improper. Statements made by a witness pertaining to collateral matters may not be used to impeach him. Penwell v. Barrett, 724 S.W.2d 902, 906-07 (Tex.App.-San Antonio 1987, no writ); Chagas v. West Bros. Inc., 589 S.W.2d 185, 186-87 (Tex.Civ.App.-Fort Worth 1979, no writ); Spiritas v. Robinowitz, 544 S.W.2d 710, 721-22 (Tex.Civ.App.-Dallas 1976, writ ref'd n.r.e.); Christie v. Brewer, 374 S.W.2d 908, 913-14 (Tex.Civ.App.-Austin 1964, writ ref'd n.r.e.). For all these reasons, the trial court abused its discretion by admitting the evidence in question.
The trial court’s abuse of discretion in admitting all of the evidence regarding Rodriguez’s illegal-alien status was clearly harmful. Racial and ethnic distinctions of any sort “are inherently suspect and thus call for the most exacting judicial examination.” Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 291, 98 S.Ct. 2733, 2748, 57 L.Ed.2d 750 (1978). “[Djiscrimination on the basis of race, odious in all respects, is especially pernicious in the administration of justice.” United States v. Doe, 903 F.2d 16, 21 (D.C.Cir.1990) (stating “[bjecause of the risk that the factor of race may enter the criminal justice process, we have engaged in ‘unceasing efforts’ to eradicate racial prejudice from our criminal justice system.”) (citing McCleskey v. Kemp, 481 U.S. 279, 309, 107 S.Ct. 1756, 1788, 95 L.Ed.2d 262 (1987)). Distinctions based on ancestry “are as odious and suspect” as those based on race because they threaten the fairness of the trial. Id. at 21-22. Injection of ethnicity into a trial clearly invites the jury to put the defendant’s racial and cultural background into the balance in determining defendant’s guilt. *931United States v. Vue, 13 F.3d 1206, 1211 (8th Cir.1994).
As the majority opinion demonstrates, Appellees did not even need to show Rodriguez’s status as an illegal alien to impeach him. The evidence that he had invented a social security number and made misrepresentations to prospective employers about dates of prior employment could have been used without going into his immigration status. The repeated injection into the case of Rodriguez’s nationality, ethnicity, and illegal-immigrant status, including his conviction and deportation, was plainly calculated to inflame the jury against him. See id. This error is “a serious trespass” because equality before the law is and must be defended, regardless of personal sentiment, as the bedrock of our judicial system. See id.
Texas courts have long held that references to race or national origin of a defendant are inappropriate, particularly in light of “signs of the times.” See Marx v. State, 141 Tex.Crim. 628, 150 S.W.2d 1014, 1016-1017 (1941). The signs of the times with respect to illegal Mexican immigrants have never been worse. Emphasizing Rodriguez’s illegal status is tantamount to de-monization to many in this social and political climate. The issue is highly volatile, emotional, and inflammatory as debate about this issue escalates in this post-9-11 era with heightened fears, among others, about taking jobs from citizens, border crime, drugs, and even terrorism. Reference to the immigration status of an illegal alien was long ago held to be so prejudicial on its face that the harm is incurable. See, e.g., Penate v. Berry, 348 S.W.2d 167, 168 (Tex.Civ.App.-El Paso 1961, writ ref'd n.r.e.) (reversing judgment based on prejudice from jury argument emphasizing Mexican defendant’s status as illegal alien).
Even if one accepts that Appellees were entitled to impeach Rodriguez’s credibility as the only eyewitness who knew for certain whether he crossed over into the other lane, and even going one step further and assuming that Rodriguez’s status as an illegal alien was somehow admissible, I cannot see how the substantial prejudice created by the highly inflammatory nature of the evidence did not greatly outweigh any probative value. See Tex.R. Evid. 609(a). I believe it probably caused the rendition of an improper judgment. See Tex.R.App. P. 44.1(a).
Negligent Hiring
I also disagree with the majority’s holding that the trial court did not omit an essential element of Appellees’ negligent hiring claim against TXI, i.e., the requirement that TXI knew or should have known that Rodriguez was an incompetent driver. I am mystified as to how the majority concludes that, merely by including TXI in the general liability question along with the general negligence, proximate cause, and ordinary care instructions, the disputed issue — whether TXI knew or should have known that Rodriguez was an incompetent driver — was adequately placed before the jury when that element was completely absent from the instructions.
The basis for direct liability of the employer is its own negligence in hiring, retaining, or supervising an employee that it knows or reasonably should know is incompetent or unfit.7 In holding that the trial *932court was not required to submit the essential knew-or-should-have-known-employee-was-incompetent element, I believe the majority opinion conflicts with the very cases it cites for the opposite proposition, including this court’s prior decision of Morris v. JTM Materials, Inc., 78 S.W.3d 28, 49 (Tex.App.-Fort Worth 2002, no pet.) (holding whether employer knew or should have known employee was incompetent or unfit driver is essential element of negligent hiring claim). And I cannot agree with the majority’s effort to distinguish Builders Transp., Inc. v. Grice-Smith, 167 S.W.3d 1, 8-9 (Tex.App.-Waco 2005, no pet.) (reversing judgment because jury question omitted essential element of whether employer knew or should have known employee was incompetent driver), judgm’t withdrawn and superseded on reh’g, 167 S.W.3d 18 (Tex.App.-Waco 2005, pet. filed). The Waco Court in that case held that whether the employer knew or should have known that the employee was incompetent was, indeed, an essential element of the negligent hiring claim but not an essential element for a separate claim for negligent “training.” 167 S.W.3d at 8-9.
Finally, I part ways with the majority with respect to its holding that the omitted element should be deemed found in favor of the verdict because TXI failed to request submission of the omitted element or to object to the omission. As the majority, itself, acknowledges, TXI did request submission of special question number 5 with instructions specifically including the missing element, and the trial court signed off on its refusal.
Contrary to the majority’s interpretation of TXI’s counsel’s comment that they were “not all that desirous” of having the requested question and accompanying instructions submitted, I do not believe that the comment was a withdrawal of the request but, rather, merely an understandable sidebar remark in the upside-down context of broad-form submission, i.e., that our existing rules require any party to request instructions to include any and all omitted elements of its opponent’s theory of recoveiy or defense, even though the party seeking to preserve error has neither the burden of proof on nor the burden to request submission of the question, itself. See Tex.R. Civ. P. 278 (providing failure to submit a definition or instruction shall not be deemed ground for reversal unless substantially correct definition or instruction has been requested in writing and tendered by party seeking reversal).
A finding on the knew-or-should-have-known-employee-incompetent element cannot be deemed in favor of the verdict and judgment because TXI properly objected by requesting submission of the negligent hiring theory with the omitted element included. State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex.1992) (holding separate objection not required where, by requested question, party made trial court aware of complaint timely and clearly, and obtained ruling on request); see also First Valley Bank of Los Fresnos v. Martin, 144 S.W.3d 466, 474 (Tex.2004) (Wainwright, J., concur*933ring) (noting that, under Payne, a request may serve as an objection for preservation of error purposes as long as trial court is aware of complaint and issues a ruling). Under Payne, error was not waived regarding the omitted element because TXI made the trial court plainly aware of its complaint and obtained a ruling.
Conclusion
I dissent. I would reverse and render judgment in favor of Appellants on Appel-lees’ negligence claims because the expert testimony of their expert witness was unreliable. Alternatively, while I concur in that portion of the majority opinion setting aside the award of punitive damages, I would remand the remainder of the cause with respect to negligence and compensatory damages for new trial because of the abuse of discretion in permitting evidence of Rodriguez’s status as an illegal alien.
In addition, in the event this case were remanded, I would hold that the trial court abused its discretion in excluding, and on retrial should admit into evidence, the complete DPS report and the findings and opinions that Trooper Raney made in that report that Rodriguez, as the driver of the gravel truck, took “correct evasive action” to the southbound shoulder of the road, that the point of impact was the gravel truck’s left front clearance marker, and that Kim Hughes drove the Yukon into the lane of travel of the gravel truck for “unknown reasons” or that the collision may have happened because of a blowout of one of the Yukon’s tires.
. In their pretrial motion to exclude his testimony, Appellants also specifically preserved error, listing among other grounds that Dr. Marshek “does not follow the systematic procedures for analyzing collisions accepted by the accident reconstruction community” and “does not show that the techniques he used in this case are accepted by the accident reconstruction community.”
. Dr. Marshek recalled that Lee Jackson, Ap-pellees’ former expert, believed that the gouge mark represented the initial point of impact. Jackson testified, however, that the initial point of impact was when the left side mirror of the Yukon hit the gravel truck’s left front clearance pole, with the gouge mark showing the vehicles’ maximum subsequent engagement.
. Dr. Marshek said Kim Hughes would have seen the truck coming toward her in her lane and gone through the perception time at about 95 feet before impact, and that, based on the legal definition of "sudden emergency,” Hughes acted reasonably in making her decision to veer into the gravel truck’s path when she saw it coming toward her but, unfortunately, it turned back into its own lane. However, Hughes is deceased and no one knows what she saw, much less when or what decision, if any, she might have made. Dr. Marshek’s testimony that she would have decided to veer directly into the wrong lane and into the path of the oncoming tractor-trailer rig is rank speculation.
. Physical inspection of the Yukon showed that the wheel, including the rim, was actually sheared off by the impact.
. Dr. Marshek himself rejected the possibility that the gravel truck turned right to avoid the collision from its own lane, because it would have had to perform a right and then an immediate and quick-left maneuver in order to line up with skid marks made by the trailer, which would have been very difficult for a fully loaded truck to manage without rollover or spillage, of which there was no evidence.
. See, e.g., Garrett v.Great W. Distrib. Co., 129 S.W.3d 797, 803-04 (Tex.App.-Amarillo 2004, pet. denied) (holding basis for direct liability of employer lay in its own negligence in failing to supervise employee when it knew or should have known of employee’s incompetence); Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 495 (Tex.App.-Fort Worth 2002, no pet.) (holding fact issue raised regarding whether employer knew or should have *932known employee was incompetent or unfit); Verinakis v. Med. Profiles, Inc., 987 S.W.2d 90, 97 (Tex.App.-Houston [14th Dist.] 1998, pet. denied) (holding employer who negligently hires incompetent or unfit employee may be liable to third party for negligence of employee); see also CoTemp, Inc. v. Houston West Corp., 222 S.W.3d 487, 491 (Tex.App.-Houston [14th Dist.] 2007, no pet.) (plurality opinion) (explaining basis of responsibility for negligent hiring, retention, or supervision premised on duty created by foreseeability of unreasonable risk to others by employer who knows or should know employee is incompetent or unfit).