Debra Dent Leal A/K/A Debbie D. Leal, Tango Transport, Inc. and Tango Transport, LLC v. James Jordan ( 2015 )

ACCEPTED
12-15-00119-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
12/2/2015 8:48:50 PM
Pam Estes
CLERK
NO. 12-15-00119-CV
IN THE
TWELFTH COURT OF APPEALS FILED IN
12th COURT OF APPEALS
TYLER, TEXAS TYLER, TEXAS
_________________________________________
12/2/2015 8:48:50 PM
PAM ESTES
DEBRA DENT LEAL A/K/A Clerk
DEBBIE D. LEAL, AND TANGO
TRANSPORT, INC., AND TANGO
TRANSPORT, LLC. Appellants
vs.
JAMES JORDAN
Appellee
_________________________________________
Appealed from the 115th District Court
Upshur County, Texas
Cause No. 588-12
Honorable Lauren Parish, Presiding Judge
_________________________________________
OPENING BRIEF OF APPELLANTS,
DEBRA DENT LEAL A/K/A DEBBIE D.
LEAL, AND TANGO TRANSPORT, INC.,
AND TANGO TRANSPORT, LLC.
_________________________________________
Matthew L. Thigpen
Texas State Bar No. 24056425
Norman R. Ladd, III.
Texas State Bar No. 24041285
223 S. Bonner Ave.
Tyler, Texas 75702
(903) 705-7211
(903) 705-7221 (FAX)
ATTORNEYS FOR APPELLANTS
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
THE FOLLOWING IS A LIST OF ALL PARTIES TO THE TRIAL
COURT’S ORDER APPEALED FROM, AND THE NAME AND ADDRESSES
OF ALL TRIAL AND APPELLATE COUNSEL:
1. APPELLANTS-DEFENDANTS ARE DEBRA DENT LEAL A/K/A
DEBBIE D. LEAL, AND TANGO TRANSPORT, INC., AND TANGO
TRANSPORT, LLC.
2. TRIAL AND APPELLATE COUNSEL FOR APPELLANTS-
DEFENDANTS DEBRA DENT LEAL A/K/A DEBBIE D. LEAL, AND
TANGO TRANSPORT, INC., AND TANGO TRANSPORT, LLC. IS
LADD & THIGPEN, PC, NORMAN R. LADD, III, AND MATTHEW L.
THIGPEN, 223 S. BONNER AVE., TYLER, TEXAS 75702.
3. APPELLEE-PLAINTIFF IS JAMES JORDAN.
4. TRIAL AND APPELLATE COUNSEL FOR APPELLEE-PLAINTIFF,
JAMES JORDAN IS PHENIX, PHENIX AND CRUMP, RUSTY
PHENIX, 118 S. MAIN STREET, HENDERSON, TEXAS 75653.
ii
TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL .......................................................... iii
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES......................................................................................v
TEXAS RULES OF EVIDENCE………………………………..………………..vii
STATEMENT OF THE CASE ..................................................................................1
ISSUES PRESENTED...............................................................................................4
STATEMENT OF FACTS ........................................................................................5
SUMMARY OF THE ARGUMENT ........................................................................7
ARGUMENT .............................................................................................................9
Standard of Review ................................................................................................... 9
Issue No. 1: Did the trial court err and abuse its discretion by excluding
relevant evidence of pre-existing injury to JORDAN?.............11
Sub-issue No. 1: Was the evidence that the Trial Court excluded relevant?........11
Sub-issue No. 2: Did the trial court err and abuse its discretion by in excluding the
deposition testimony of Dr. Ritesh Prasad and Dr. Charles
Gordon?....................................................................................11
iii
Issue No. 2: Did JORDAN Open the Door related to Pre-existing Injuries
during his Direct
Testimony…………………………………………………….21
CONCLUSSION………………………………………………………………….24
PRAYER ..................................................................................................................25
CERTIFICATE OF SERVICE ................................................................................26
CERTIFICATE OF COMPLIANCE .......................................................................27
iv
INDEX OF AUTHORITIES
PAGE
Cases
Williams Distrib. Co., v. Franklin, 898 S.W.2d 816, 817 (Tex.1995)………………7
McGraw v. Maris, 8282 S.W.2d 756, 757 (Tex.1992)……………………………..7
Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex.2007).9, 22
Certain Underwriters at Lloyd's, London v. Chicago Bridge & Iron Co., 406 S.W.3d
326, 338 (Tex.App.–Beaumont 2013, pet. denied) ................................................9
Caffe Ribs, Inc. v. State, 328 S.W.3d 919, 927 (Tex.App.–Houston [14th Dist.] 2010,
no pet.) (citing Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002))9, 10
Hooper v. Chittaluru, 222 S.W.3d 103, 107 (Tex.App.–Houston [14th Dist.] 2006,
pet. denied) (op. on reh'g) .......................................................................................9
Strauss v. Continental Airlines, Inc., 67 S.W.3d 428, 449 (Tex.App.–Houston [14th
Dist.] 2002, no pet.) ....................................................................................... 10, 21
City of San Antonio v. Pollock, 284 S.W.3d 809, 816–17 (Tex.2009) ...................10
Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex.2001) .............10
Blackburn v. State, 820 s.W.2d 824, 826 (Tex.App.—Fort Worth, 1991, pet. ref’d)
..............................................................................................................................11
Perez v. State, 830 S.W.22d, 684, 687-88 (Tex.App.—Corpus Christi, 1992, no pet)
..............................................................................................................................11
v
Johnson v. State, 698 S.W.2d 154, 160 (Tex.Crim.App. 1985)……………..……..12
Castro v. Sebesta, 808 S.W.2d 189, 191 (Tex.App.—Houston [1st Dist.] 1991, no
writ)………………………………………………………………..……………...12
Henderson v. State, 906 S.W.2d 589, 597 (Tex.App.—El Paso, 1995, pet. ref’d)...12
Montgomery v. State, 810 S.W.2d 372, 376 (Tex.Crim.App., 1990)…………12, 14
Layton v. State, 280 S.W.3d 235, 240 (Tex.Crim.App., 2009)…………………….13
Stewart v. State, 129 S.W.3d 93, 96 (Tex.Crim.App., 2004)………………………14
Menchaca v. State, 901 S.W.2d 640, 648 (Tex.App.—El Paso, 1995, pet. ref’d)…14
Russell Stover Candies, Inc. v. Elmore, 58 S.W.3d 154, 158 (Tex.App.–Amarillo
2001, pet. denied)…………………………………………………………….……14
Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211, 218 (Tex.2010)……………14
Baker v. Dalkon Shield Claimants Trust, 156 F.3d 248, 252 (1st Cir.1998)……….15
Brownsville Pediatric Ass'n v. Reyes, 68 S.W.3d 184, 195 (Tex.App.–Corpus
Christi 2002, no pet.)……………............................................................................15
Cruz ex rel. Cruz v. Paso Del Norte Health Found., 44 S.W.3d 622, 632–33
(Tex.App.–El Paso 2001, pet. denied)……………………………………………..15
Harris v. Belue, 974 S.W.2d 386, 393–94 (Tex.App.–Tyler 1998, pet. denied).….15
Moore v. Bank Midwest, N.A., 39 S.W.3d 395, 402 (Tex.App.—Houston [1st Dist.]
2001, pet. denied)……………………………………………………….………....22
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex.2000)………..22
vi
TEXAS RULES OF EVIDENCE
Texas Rules of Evidence § 401………………………………….…11, 12, 13
Texas Rules of Evidence § 402………………………….………………….10
Texas Rules of Evidence § 403………………………………….…10, 15, 21
vii
STATEMENT OF THE CASE1
This is an appeal of a Final Judgment following a Jury Trial in an automobile
accident case. Appellee James Jordan, (“JORDAN”) filed suit against Appellants
Debra Dent Leal a/k/a Debbie D. Leal, and Tango Transport, Inc., and Tango
Transport, LLC., (“LEAL” and/or “TANGO”) CR, P. 7-69. Factually, JORDAN
and LEAL were involved in an automotive collision on October 1, 2010, involving
two (2) tractor trailer rigs. CR, P. 7-69.
JORDAN asserted negligence against LEAL while acting within the course
and scope of her employment for TANGO. CR, P. 7-69. Additionally, JORDAN
asserts that LEAL operated her vehicle in a negligent manner by failing to keep a
proper lookout, failing to maintain control of her vehicle, failing to control her speed,
failing to keep an assured clear distance in violation of Sections 545.062(a) of the
Texas Transportation Code, failing to comply with the Federal Motor Carrier Safety
Regulations, and in committing other acts of negligence, all of which were a
proximate cause of the occurrence in question. CR, P. 7-69.
Furthermore JORDAN alleged Respondeat Superior complaining of TANGO
as LEAL was acting within the course and scope of her employment with TANGO.
1
“CR” refers to the volume and page of the Clerk’s Record. “RR” refers to the volume and page of the transcribed
hearing in the Reporter’s Record. “SR” refers to the volume and page of the transcribed hearing in the Reporter’s
Record entitled Hearing on Defendant’s Objections, which was supplemented during this appeal.
1
Therefore TANGO is liable for such acts, omissions and conduct under the doctrine
of Respondeat Superior. CR, P. 7-69.
On August 27, 2014, the Trial Court granted JORDAN’S Motion in Limine,
Number 15, related to the 2002 accident. See Plaintiff’s Motion in Limine, CR, P.
295; see also Order on Plaintiff’s Motion in Limine, CR., P. 306.
On November 6, 2014, JORDAN filed the Notice of Deposition Excerpts and
Objections Regarding Depositions of Dr. Charles Gordon, M.D., and Dr. Ritesh
Prasad. CR., P. 741.
On November, 10, 2015, the Trial Court convened Vior Dire in the 115 th
Judicial District Court for Upshur County under Cause Number 588-12. Before Jury
Selection, the Court heard contested issues that were before the Court including the
issue of JORDAN’s pre-existing conditions, and sought a ruling on the objections to
the proposed deposition excerpts proffered by LEAL and TANGO. See CR. P. 741.
JORDAN’s counsel objected to the admission of the expert’s testimony regarding
JORDAN’s pre-existing injuries. The Court overruled his objection, allowing
testimony to be included at the time of Trial.
On the date of Trial, November 16, 2015, Counsel for JORDAN requested to
re-open the issue of allowing JORDAN’s pre-existing conditions coming in at Trial.
The Judge allowed his argument and then ruled in his favor, overturning her own
ruling from six (6) days prior. RR Volume 3, P. 11, LL. 17-24.
2
During testimony, JORDAN opened the door to the evidence related to his
pre-existing injuries, and LEAL and TANGO requested that the Trial Court allow
such evidence. This request was denied.
Following a conclusion of this trial, the Jury rendered its verdict, wherein
certain damages were awarded to JORDAN, including $75,000.00 for past pain and
suffering, and $35,000.00 for future pain and suffering. CR., P. 746.
On January 29, 2014, the Court signed the Final Judgment. CR., P. 763.
On February 25, 2015, LEAL and TANGO filed their Motion for New Trial,
which the Trial Court never ruled upon, allowing such motion to be denied by
operation of law. CR., P. 765.
On May 7, 2015, TANGO filed its Notice of Appeal. CR., P. 773.
TANGO asserts that had the Trial Court allowed introduction of the pre-
existing injury, which would have been relevant to the damages and the proximate
cause portions of this case, the Jury verdict would have been lower.
3
ISSUES PRESENTED
ISSUE No. 1: Did the trial court err and abuse its discretion by excluding
relevant evidence of pre-existing injury to JORDAN?
Sub-issue No. 1: Was the evidence that the Trial Court excluded relevant?
Sub-issue No. 2: Did the trial court err and abuse its discretion by in excluding
the deposition testimony of Dr. Ritesh Prasad and Dr.
Charles Gordon?
ISSUE No. 2: Did JORDAN Open the Door related to Pre-existing Injuries
during his Direct Testimony.
4
STATEMENT OF FACTS
On May 13, 2013, JORDAN was deposed by LEAL and TANGO, at which
time he testified that he had been involved in an automobile accident in 2002,
wherein he sustained injuries to his neck and back. See RR., Volume 8, entitled
“Defendants’ Trial Exhibit D-21”. Such testimony also related to the treatment
provided to these injuries, and the lengthy of time that JORDAN was not able to
work while he healed from said injuries.
On March 17, 2014, JORDAN’S treating physician Dr. Charles Gordon was
deposed by LEAL and TANGO, during which time the impact, if any, of the 2002
accident and injuries to JORDAN’S neck and back would be relevant to his opinions.
Such testimony was later submitted as LEAL and TANGO’S deposition excerpts for
the trial. JORDAN objected to such testimony as being irrelevant.
On August 14, 2014, JORDAN’S treating physician Dr. Ritesh Prasad was
deposed by LEAL and TANGO, during which time similar questions related to the
impact, if any, of the 2002 accident and injuries would be relevant to his opinions.
Again, this testimony was submitted as LEAL and TANGO’S deposition excerpts
for the trial, to which JORDAN objected as being irrelevant.
As outlined in detail in the following paragraphs, the Trial initially allowed
such evidence to be admitted, but later excluded any evidence or testimony related
5
to the 2002 accident, the injuries sustained, and any testimony from the treating
physician related to the impact on their opinions.
6
SUMMARY OF THE ARGUMENT
The court abused its discretion in excluding evidence of JORDAN’S previous
accident and injury history, which was offered to show pre-existing injuries, because
the evidence was admissible, was controlling on a material issue, and was not
cumulative of other evidence. See Williams Distrib. Co. v. Franklin, 898 S.W.2d
816, 817 (Tex. 1995); McGraw v. Maris, 828 S.W.2d 756, 757 (Tex. 1992).
Specifically, during a pre-trial discussion regarding the expert testimony of Dr.
Prasad and Dr. Gordon, the Court ordered that their testimony as to JORDAN’S
previous back and neck injuries and potential alteration of their opinions was
admitted.
At the commencement of the trial, the Court changed its ruling on this very issue,
and excluded any testimony from all witnesses. This despite the fact that the
Plaintiff, had testified, without objection, during depositions to such previous
injuries. Furthermore, Dr. Prasad, a treating physician, testified that had he known
of the previous injury, his opinions might have been different.
The exclusion of this evidence caused the rendition of an improper judgment.
Tex. R. App. P. 44.1(a)(1). Simply put, the evidence before the Jury was that
JORDAN had no previous injury history, which is counter to his sworn testimony.
7
This was also the issue during trial, wherein LEAL and TANGO sought to have
the Court rule that the door had been opened when JORDAN testified that related to
his work and injury history. The Trial Court denied such request that the door had
been opened.
8
ARGUMENT
I. Standard of Review
The decision to admit or exclude evidence lies within the sound discretion of
the trial court. Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234
(Tex.2007); Certain Underwriters at Lloyd's, London v. Chicago Bridge & Iron Co.,
406 S.W.3d 326, 338 (Tex.App.–Beaumont 2013, pet. denied).
A trial court exceeds its discretion if it acts in an arbitrary or unreasonable
manner or without reference to guiding rules or principles. Caffe Ribs, Inc. v. State,
328 S.W.3d 919, 927 (Tex.App.–Houston [14th Dist.] 2010, no pet.) (citing Bowie
Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002)).
When reviewing matters committed to the trial court's discretion, a reviewing
court may not substitute its own judgment for the trial court's judgment. Id. Thus,
the question is not whether this Court would have admitted the evidence. Rather, an
appellate court will uphold the trial court's evidentiary ruling if there is any
legitimate basis for the ruling, even if that ground was not raised in the trial court.
Hooper v. Chittaluru, 222 S.W.3d 103, 107 (Tex.App.–Houston [14th Dist.] 2006,
pet. denied) (op. on reh'g)
Therefore, this Court is to examine all bases for upholding the trial court's
decision that are suggested by the record or urged by the parties. Id.
9
Relevant evidence is generally admissible. Tex. R. Evid. 402. A trial court
may exclude relevant evidence, however, “if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, or needless presentation of cumulative
evidence.” Tex. R. Evid. 403; see Strauss v. Continental Airlines, Inc., 67 S.W.3d
428, 449 (Tex.App.–Houston [14th Dist.] 2002, no pet.).
In addition, a court may exclude an expert opinion when it is conclusory or
the basis offered for it is unreliable. Tex. R. Evid. 702; City of San Antonio v.
Pollock, 284 S.W.3d 809, 816–17 (Tex.2009).
To obtain reversal of a judgment based on a claimed error in excluding
evidence, a party must show that the trial court did in fact err and that the error
probably resulted in rendition of an improper judgment. Hooper, 222 S.W.3d at 107.
To determine whether excluded evidence probably resulted in the rendition of an
improper judgment, an appellate court reviews the entire record. Caffe Ribs, Inc.,
328 S.W.3d at 927 (citing Interstate Northborough P'ship v. State, 66 S.W.3d 213,
220 (Tex.2001)). To challenge a trial court's evidentiary ruling successfully, the
complaining party must demonstrate that the judgment turns on the particular
evidence that was excluded or admitted. Hooper, 222 S.W.3d at 107 (citing Inter
state Northborough P'Ship, 66 S.W.3d at 220). A reviewing court ordinarily will not
reverse a judgment because a trial court erroneously excluded evidence when the
10
excluded evidence is cumulative or not controlling on a material issue dispositive to
the case. Id.
ISSUE No. 1: Did the trial court err and abuse its discretion by excluding
relevant evidence of pre-existing injury to JORDAN?
Sub-issue No. 1: Was the evidence that the Trial Court excluded relevant?
Sub-issue No. 2: Did the trial court err and abuse its discretion by in excluding
the deposition testimony of Dr. Ritesh Prasad and Dr.
Charles Gordon?
Texas Rule of Evidence 401 defines “Relevant evidence” as evidence having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without
the evidence.”
In order for evidence to be relevant, it must meet a two-prong test under Rule
401. First, the proposition to be proved must be material, meaning it must support a
proposition that is a matter in issue or is probative of a matter in the case. Blackburn
v. State, 820 s.W.2d 824, 826 (Tex.App.—Fort Worth, 1991, pet. ref’d). The second
prong of the test is that the offered evidence must be relevant, meaning it evidence
must make the existence of the material fact “more probable or less probable than it
would be without the evidence”. Perez v. State, 830 S.W.22d, 684, 687-88
(Tex.App.—Corpus Christi, 1992, no pet).
11
Furthermore, Texas Rule of Evidence 401 does not require that the fact to be
proved be in dispute, Johnson v. State, 698 S.W.2d 154, 160 (Tex.Crim.App. 1985).
While a court might reject evidence on a particular fact already resolved for the
purposes of the lawsuit by judicial notice, stipulation or failure of the opponent to
deny the fact by sworn pleading, the Court should more properly reject such
evidence as “unfairly prejudicial” or a “waste of time” under Rule 403, rather than
rejecting it as immaterial under Rule 401. Castro v. Sebesta, 808 S.W.2d 189, 191
(Tex.App.—Houston [1st Dist.] 1991, no writ).
Rule 401 maintains that the theories of the parties in either prosecution or
defending the claim determine the material issues in each individual case.
Henderson v. State, 906 S.W.2d 589, 597 (Tex.App.—El Paso, 1995, pet. ref’d). In
this case, JORDAN sought recovery for physical injuries that he sustained in the
accident in question, which included a L5-S1 fusion with an anterior lumbar
interbody fusion of L5-L1. In response, TANGO and LEAL argued that a prior
accident caused identical injuries to JORDAN.
The second prong of Rule 401 relates to the relevance of the evidence being
offered in trial. As stated by the Texas Court of Criminal Appeals, the “appropriate
test for relevancy is whether ‘a reasonable person, with some experience in the
everyday work,’ would believe that a particular piece of evidence might be helpful
in determining the truth or falsity of any material fact.” Montgomery v. State, 810
12
S.W.2d 372, 376 (Tex.Crim.App., 1990). Thus, the Court is to look to the purpose
for offering the evidence, the material fact to be proved, and whether there is a direct
or logical connection between the offered evidence and the proposition to be proved.
Layton v. State, 280 S.W.3d 235, 240 (Tex.Crim.App., 2009).
In the instant matter, LEAL and TANGO sought in include sworn testimony
from the Plaintiff, JORDAN, related to previous physical injuries that were from the
(1) same form of employment, (2) similar physical injuries including the same
location on the body, and (3) the course of treatment and recovery. As an affirmative
defense, LEAL and TANGO argued a pre-existing condition related to the damages
in this matter, thus any evidence of a prior accident with the same physical injury
would be a direct logical connection to such proposition. See TANGO’S First
Amended Answer, CR., P. 79.
Furthermore, a reasonable person would be able to believe that sworn
testimony from JORDAN related to his previous back injuries might be helpful in
determining if the extreme course of medical treatment in the instant case were all
related to the accident in question, or an exasperation of a pre-existing Defendants’
Trial Exhibit “D-21”, RR., Volume 8, D-21. Thus, under the prong test for Rule 401
of the Texas Rules of Evidence, JORDAN’S testimony related to pre-existing
injuries was relevant as a matter of law, and the Court erred in ruling that such
evidence would be not admissible at trial.
13
It should be noted that relevancy is not a sliding scale, but is a “yes” or “no”
proposition, as evidence must provide only a “small nudge toward proving or
disproving some fact of consequence. Stewart v. State, 129 s.W.3d 93, 96
(Tex.Crim.App., 2004); Montgomery v. State, 810 S.W.2d 372, 376
(Tex.Crim.App.1990). In fact, the proposition at issue does not event need to be the
most likely inference from the evidence. Menchaca v. State, 901 S.W.2d 640, 648
(Tex.App.—El Paso, 1995, pet. ref’d).
With regard to evidence of pre-existing injury, there is a general principle that
a defendant may cross-examine a plaintiff regarding previous injuries, claims, and
actions when they are relevant to show that the plaintiff's present physical condition
is not the result of the injury presently sued for, but was caused in whole or in part
by an earlier or subsequent injury or a pre-existing condition. Russell Stover
Candies, Inc. v. Elmore, 58 S.W.3d 154, 158 (Tex.App.–Amarillo 2001, pet.
denied).
In addition, a defendant may introduce evidence—typically an expert
opinion—regarding another “plausible cause” of the plaintiff's injury, and the
plaintiff must then exclude that cause with reasonable certainty. Transcontinental
Ins. Co. v. Crump, 330 S.W.3d 211, 218 (Tex.2010).
The be fair, the general principles “of alternative causation [are] not a free
ticket to admission of evidence,” which must still meet admissibility requirements
14
including relevance, reliability of expert testimony under Rule 702, and the Rule 403
balancing test. Baker v. Dalkon Shield Claimants Trust, 156 F.3d 248, 252 (1st
Cir.1998).
Under these requirements, a defendant must provide a competent factual basis
showing that an alternative cause is a plausible one before evidence of that cause
will be presented to the jury. See Brownsville Pediatric Ass'n v. Reyes, 68 S.W.3d
184, 195 (Tex.App.–Corpus Christi 2002, no pet.) (holding reliability requirement
applies equally to defense expert witness testifying about alternative causes of
plaintiff's injury); Cruz ex rel. Cruz v. Paso Del Norte Health Found., 44 S.W.3d
622, 632–33 (Tex.App.–El Paso 2001, pet. denied) (concluding that although
defensive theories regarding alternative causes need not be established “within
reasonable medical probability,” there must be “factual support in the record
justifying [their] application”); Harris v. Belue, 974 S.W.2d 386, 393–94
(Tex.App.–Tyler 1998, pet. denied) (“Without factual support in the record
justifying the application of these [alternate] theories [of causation], they rise to little
more than conjecture....).
In this case, the trial court initially granted LEAL and TANGO the ability to
cross examine JORDAN related to the pre-existing injury that he sustained in 2002.
However, a week later when opening statements were commenced, JORDAN re-
urged its relevance argument as to any evidence of a pre-existing injury, including
15
testimony from JORDAN’S expert witnesses, Dr. Prasad and Dr. Gordon, related to
a lack of knowledge of such pre-existing injury and the impact on their medical
expert opinion as to causation.
On November 10, 2014, the Court heard oral argument as to the deposition
excerpts of Dr. Prasad and Dr. Gordon. During that hearing, JORDAN’ argued that
any testimony related to the 2002 accident of JORDAN was not relevant, including
the deposition excerpts offered by TANGO related to Dr. Gordon. SR, P. 5, L. 6-
22.
After a brief argument, the Trial Court inquired as to whether JORDAN had
testified that “he was in an accident and had neck and shoulder problems or whatever
you said?” to which all parties answered in the affirmative. SR, P. 7, L. 15-20. The
Trial Court then ruled that “For clarity I’m overruling Plaintiff’s objection.
Defendant can offer that.” SR., P. 8, L. 12-13
As to the deposition excerpts of Dr. Prasad related to any pre-existing injury
or impact on Dr. Prasad’s testimony, the Court indicated it had already heard the
same relevancy objection from JORDAN. SR, P. 11, L. 5-24. In response thereto,
the Court “That I overruled your objection to.” SR, P. 11-12, L. 25-1.
As such, the Court ruled that LEAL and TANGO were allowed to introduce
deposition testimony of Dr. Prasad and Dr. Gordon related to the impact, if any, of
a pre-existing injury to JORDAN, but as to the chronic nature of such injury or
16
anything related to comparative negligence, the Court sustained the relevance
objection.
On November 19, 2014, immediately prior to the start of opening statements,
the Trial Court heard arguments related to the depositions excerpts that she had
previously allowed into evidence. While the entire discussion on these issues are
not in the reporter’s record, the ruling was recorded. The Trial Court ruled that “Just
for the record I had clarified some things on the limine issues and the plaintiff will
be allowed to bring in evidence if there is evidence of lost wages and the prior
accident is not coming in or any reference to any possible – well, the references to
the chronic and other, I don’t know how to phrase it, the other—well, the condition
that there’s no evidence of I’ll put it that way so, okay.” CR. Volume 3, P. 11, LL.
17-24. Such ruling effectively excluded all testimony or evidence of the pre-existing
injury to JORDAN, or at least the previous similar injury from 2002.
The record is clear that JORDAN provided sworn testimony that in 2002 he
had been involved in a accident which resulted in physical injuries to the same
physical portions made the basis of the current case against TANGO. Such sworn
testimony from JORDAN meets the first prong of the factual basis showing that an
alternative cause is a plausible theory for the severity of the injuries in this matter,
especially since there was a time in which he did not work, and the injuries were to
the same location as those made the basis of the trial in question.
17
LEAL and TANGO further sought in to include sworn deposition testimony
from JORDAN’S medical experts related to the impact of the pre-existing injury
from 2002 would have on their opinions related to proximate causation. However,
the sweeping ruling of the Trial Court rendered such deposition excerpts excluded
on the basis of relevance.
As to Dr. Prasad’s excluded testimony, he testified that had he known of
JORDAN’S pre-existing injury, this could have altered his opinion as to causation.
11. Q. Okay. So Mr. Jordan comes in in October of
12. 2010 and he tells you that you've had a -- that he --
13. that he's been involved in a wreck, correct?
14. A. Correct.
15. Q. At that time -- you referred to that as his
16. history?
17. A. That's correct.
18. Q. Did Mr. Jordan ever refer to a previous
19. accident he had been in?
20. A. No, he didn't.
21. Q. Okay. Did -- are you aware that he was in
22. an accident in 2002?
23. A. No, I wasn't.
24. Q. Are you aware of any injuries that resulted
25. from that accident?
1. A. None that he described to me.
2. Q. Okay. So those -- that MRI that was taken
18
3. in 2010, that's really the first photo evidence we
4. have of what Mr. Jordan's condition is?
5. A. That's correct. When I saw him, I -- he --
6. specifically I wrote down that he denies any neck
7. pain or back pain prior to the motor vehicle
8. accident. That would mean in the last couple of
9. years prior to the motor vehicle accident and that's
10. what the patient says and that's all I can go by, is
11. their history, right.
12. Q. And when -- you said earlier that you can --
13. can only go by what a patient says. So if the
14. patient doesn't tell you everything --
15. A. Sure.
16. Q. -- you don't know everything?
17. A. Absolutely.
18. Q. Would that affect your opinion?
19. A. Sure.
CR, P. 741.2
With regards to Dr. Gordon, the deposition testimony that was originally
allowed to be offered was the following:
24. Q. Would it be, then, fair to assume that on your
25. first visit with Mr. Jordan, you were unaware that he'd
1. been in an accident in 2002?
2
The deposition excerpts identified by TANGO and LEAL being from the Deposition Transcript of Dr. Prasad, P.
76-77,ll. 11-19
19
2. A. The accident that I was aware of was the one
3. we've been discussing from 2010.
4. Q. Right. But you weren't aware that he'd been
5. in a vehicle -- a motor vehicle accident in 2002?
6. A. That's correct.
7. Q. So you would have no idea whether or not he
8. had any reoccurring back pain or leg pain from that
9. accident?
10. A. That's correct.
CR, P. 741.3
Had the Court not changed its ruling on the date of trial, LEAL and TANGO
would have been more than able to argue that this accident was not the sole
proximate cause of the injuries, which was specifically included in its pleadings.
Simply put, the evidence sought to be offered by LEAL and TANGO was
relevant, and would have been a sufficient factual basis showing that an alternative
cause is a plausible one before evidence of that cause will be presented to the jury.
By denying LEAL and TANGO the ability to offer such evidence, the Trial
Court abused its discretion because the probative value was not substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, or needless presentation of cumulative
3
The deposition excerpts identified by TANGO and LEAL being from the Deposition Transcript of Dr. Gordon, P.
50-51,ll. 24-10.
20
evidence.” Tex. R. Evid. 403; see Strauss v. Continental Airlines, Inc., 67 S.W.3d
428, 449 (Tex.App.–Houston [14th Dist.] 2002, no pet.).
II. ISSUE NO. 2 Did JORDAN Open the Door related to Pre-existing Injuries
during his Direct Testimony.
As stated in the foregoing, the Trial Court’s had rendered a ruling sustaining
JORDAN’S objection related to relevant of the evidence, thus preventing any
testimony before the jury. It is LEAL and TANGO’S position that failure to allow
relevant evidence as to the medical condition resulted in the rendition of an improper
verdict. During JORDAN’S direct testimony portion of the trial, he was asked the
following question;
Question: Okay. Now up until October the 1st during this time that you last
worked for New Waverly up until October the 1st when this
wreck happened did you have any problem with your back?.
Answer: No, sir.
Question: From 2006 when you began working with New Waverly again
up until the time this wreck happened did you have any physical
problem that prohibited you from working?
Answer: No, sir.
Question: Do you ever remember even missing any time from work?
Answer: No, Sir.
RR, Volume 4, P. 25-26, ll. 13-2
Later in the direct testimony, JORDAN was asked another series of questions
related to his ability to provide for his family. To be clear, the question from Counsel
related to the time period of the case, being the 2010-2012 time frame. However, as
21
shown below, the response from JORDAN incorporated his entire working history,
including the 2002 time period related to the pre-exsting injury barred by the Court.
Question: Up until this point how was it not being able to work?
Answer: Not—not being able to work after so many years it was to the
point where I’ve always provided for my family and I could not
provide for them. It was, wow, I don’t know the right
termination to use for it, but just uncertain if I was going to be
able to go back and work and I….
RR, Volume 4, P. 41-42, LL. 22-4.
A party opens the door to the admission of otherwise objectionable evidence
offered by the other side when it “introduces the same evidence or evidence of a
similar character. Moore v. Bank Midwest, N.A., 39 S.W.3d 395, 402 (Tex.App.—
Houston [1st Dist.] 2001, pet. denied). Furthermore, when a party opens the door
when the testimony conveys a false impression. Horizon/CMS Healthcare Corp. v.
Auld, 34 S.W.3d 887, 906 (Tex.2000). Finally, the “door is opened” to admission
of evidence of collateral matters when it injects those collateral issues into lawsuit.
Bay Area Healthcare Grp., Ltd. V. McShane, 239 S.W.3d 231, 234 (Tex.2007).
In this matter, the evidence sought to be included by TANGO was related to
the preexisting injuries from 2002, and the treatment of such injuries. JORDAN
22
made four statements that created a false impression to the jury, those being when
he stated the following:
1. That there had never been a time period in which JORDAN was unable
to work, and
2. That he did not remember even missing any time from work.4
When these statements are considered to be the whole testimony of the
JORDAN, it is clear that the impression the Jury would have been provided is that
JORDAN had never been without the ability to work and provide for his family.
Such impression would have been clarified and/or avoided had the Trial Court
allowed testimony of the 2002 accident, sustained injuries, and lost work time for
a period of several months.
Following the conclusion of JORDAN’S direct testimony, LEAL and
TANGO requested the Court to re-address the exclusion of the evidence related to
JORDAN’S pre-existing injury. RR, Volume 4, P. 87-89. During the oral
discussion, the Trial Court stated that she would have the Court Reporter look into
the questionable testimony, which “is going to take forever.”
After a lengthy amount of time, the Trial Court informed the parties that from
her review of the testimony complained of in this brief, the door had not been opened
4
Again, the series of questions included different time frames, being during his time off from New Waverly, then
from 2006 to the date of the accident. The question related to missing work did not have any time period.
23
to the inclusions of the evidence related to the 2002 accident. RR, Volume 4, P. 90-
91. At this point, LEAL and TANGO requested the opportunity to read into the
record the deposition testimony of JORDAN that would have been offered as
impeachment evidence. The Trial Court refused to allow the testimony to be read
into the record, requesting instead that LEAL and TANGO include the proposed
language in what later became Defendants’ Trial Exhibit “21”. RR, Volume 4, P.
91; see also Defendants’ Trial Exhibit “D-21”, RR, Volume 8, D-21.
LEAL and TANGO asserts that the door was opened by the false impression
of JORDAN’S testimony, and continuously excluding such evidence resulted in an
improper judgment by the Jury related to the damages in this case.
CONCLUSION
The Trial Court admitted found the evidence in question relevant on
November 10, 2014, and later rendered a ruling that such evidence was not relevant
on November 19, 2014. By refusing to allow the evidence, and subsequently ruling
that JORDAN had not opened the door on this issue, a false impression was made to
the jury resulting in damages that would have been different had evidence been
offered for the jury’s deliberations. In these events, the Trial Court abused its
discretion by excluding relevant evidence.
24
PRAYER
For these reasons, Appellants, DEBRA DENT LEAL A/K/A DEBBIE D.
LEAL, AND TANGO TRANSPORT, INC., AND TANGO TRANSPORT, LLC.,
respectfully request that this Court reverse the Trial Court’s excluding relevant
evidence related to the 2002 accident and injuries sustained thereto, and upon such
ruling, return this case to the Trial Court for a new trial. Appellants, DEBRA DENT
LEAL A/K/A DEBBIE D. LEAL, AND TANGO TRANSPORT, INC., AND
TANGO TRANSPORT, LLC., further respectfully request that this Court grant
Appellants any and all other relief to which they may be entitled.
Respectfully submitted,
LADD & THIGPEN, P.C.
/s/ Matthew Thigpen
Matthew Thigpen
Texas State Bar No. 24056425
Norman R. Ladd, III.
Texas State Bar No. 24041285
223 S. Bonner Ave.
Tyler, Texas 75702
(903) 705-7211
(903) 705-7221 (FAX)
ATTORNEYS FOR
APPELLANTS
25
CERTIFICATE OF SERVICE
I hereby certify that on this the 2nd day of December, 2015, a true and correct
copy of the foregoing, Brief of Appellants, was duly served via the following:
Rusty Phenix  Messenger
Phenix, Phenix and Crump
118 South Main St.  Facsimile
Henderson, Texas 75653
(903) 657-3595  Certified Mail – RRR
(903) 657-3598 (FAX)
 First Class Mail
Counsel for James Jordan
 Via Overnight
 Via E-Service
_/s/ Matthew Thigpen
Matthew L. Thigpen
26
CERTIFICATE OF COMPLIANCE
Appellants, DEBRA DENT LEAL A/K/A DEBBIE D. LEAL, AND TANGO
TRANSPORT, INC., AND TANGO TRANSPORT, LLC., state that there are 5,969
words contained in Appellant’s Brief. In determining the word count, counsel for
Appellants relies on the word count stated on the bottom ruler in his Microsoft Word
document.
Respectfully submitted,
LADD & THIGPEN, P.C.
/S/ Matthew Thigpen
Matthew Thigpen
Texas State Bar No. 24056425
Norman R. Ladd, III.
Texas State Bar No. 24041285
223 S. Bonner Ave.
Tyler, Texas 75702
(903) 705-7211
(903) 705-7221 (FAX)
ATTORNEYS FOR
APPELLANTS
27