dissenting.
I respectfully dissent. Because I believe the evidence is factually insufficient to support the jury verdict, I would reverse and remand the ease for a new trial.
Some scientific and medical information requires expert explanation for jurors and judges to understand the evidence. See, e.g., Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995)(frostbite causation); Insurance Co. of N. Am. v. Myers, 411 S.W.2d 710, 713-14 (Tex.1966)(cancer acceleration). Under the facts of this case, that is true with respect to the drug test, a key piece of evidence. A urine sample taken within an hour of the accident demonstrated plaintiff had an intoxicant in his system at the time of the accident. That fact was undisputed at trial and is not disputed on appeal. Whether that level necessarily means Hinson was intoxicated requires expert explanation. Hinson offered none.
The only expert testimony in the record for the jury and for this Court to consider is that the level of intoxicant demonstrated by the urine sample established Hinson’s intoxication at the time of injury. The only evidence offered by Hinson was his own testimony. He testified he had not used the intoxicant within the last forty-eight hours; he did not feel anything but normal. Nevertheless, I believe under these circumstances, to meet his burden of proof, Hinson was required to offer controverting expert testimony to explain why the undisputed results of the urine sample did not establish intoxication.
I do not believe the various reasons suggested by the majority are sufficient to explain away Dr. Kurt’s testimony about the drug test results. Based on the urine sample test results and reasonable medical probability, Dr. Kurt testified Hinson was intoxicated, as that term is defined by the Labor Code, at the time of the injury. Tex. Lab.Code Ann. § 401.013 (Vernon Supp.2005). As the majority notes, there were no objections to Dr. Kurt’s testimony that Hinson was intoxicated at the time of the accident. Dr. Kurt explained he looks “for the proper collection of a urine specimen, approximately within a few hours of the time of the accident[J” Hinson says in his brief to this Court that urine samples were taken for drug screening purposes within an hour of the accident, and he did not argue at trial and does not say on appeal that a urine sample was collected untimely.
The majority relies on a date neither party mentioned at trial or on appeal. Given Dr. Kurt’s expert testimony that he checks for timely collection of a urine sample and the lack of any challenge to that assertion, the date on the report is likely of no actual significance to the intoxication issue. Rather, the date likely refers to the date the sample was submitted for testing. The safety director of Hinson’s employer explained what happened as follows:
Q. [Defense Counsel] Okay. Now, what — how did — how did it come that a urine sample was taken from Hinson after this accident? Did you direct that?
A. I directed by telephone to the hospital to take a post-accident drug screen sample.
Q. All right. And then subsequent to that time were you advised by the hospital that there was a presumptive positive on the test?
A. Yes. It wasn’t that particular day, but there was — time has elapsed, yes.
*122Q. Then in accordance with normal policy, because it was presumptive positive, did you request a quantitative analysis? A. I did.
Q. And that was conducted; and that is the report of that quantitative analysis that you have there, is it not, sir?
A. Yes, sir. That is.
Even if the jury rested its verdict on the date reflected on the report, that evidence is too weak to support the verdict given the undisputed contrary evidence concerning the date the sample was collected.
Hinson’s own testimony was some evidence he was not intoxicated, although too weak to support the verdict considering the contrary evidence in the record. Hin-son admits he had a certain level of intoxicant in his system at the time of the accident. He presented no evidence to explain the drug test. In my view, under the circumstances he did not meet his burden of proof. The case should be remanded for a new trial.